Opinion
No. 14-05-00680-CR
Majority and Concurring Memorandum Opinions filed October 3, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 232nd District Court, Harris County, Texas, Trial Court Cause No. 1029992. Affirmed.
Panel consists of Justices ANDERSON, EDELMAN, and FROST. (FROST, J. concurring).
MAJORITY MEMORANDUM OPINION
A jury convicted appellant, Wayne Mark Armelin, of the offense of stalking. TEX. PEN. CODE ANN. § 42.072 (Vernon 2003). The jury sentenced appellant to two and a half years' confinement in the Texas Department of Criminal Justice, Institutional Division and a $10,000 fine. In appellant's sole point of error, he contends the trial court committed reversible error when it violated appellant's Sixth Amendment right to confrontation and cross-examination by excluding evidence that would discredit the complainant's credibility. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant and complainant Vicki Evans began dating off and on around April 2000. Approximately four years later, in June 2004, Evans broke the relationship off completely and moved out of the apartment she shared with appellant. Shortly after Evans ended the relationship, appellant began stalking her. From August through September 2004, appellant flattened both Evans' and her daughter's tires on multiple occasions, left threatening notes, wandered around Evans' apartment complex, and followed her to work. The State indicted appellant for incidents occurring in 2004 on August 12, August 14, August 20, September 9, and September 26. During its case in chief, the State presented testimony from multiple witnesses about each incident alleged in the indictment. The jury found appellant guilty as charged in the indictment.DISCUSSION
In appellant's sole point of error, he argues the trial court committed reversible error when it violated appellant's Sixth Amendment right to confrontation and cross-examination by excluding evidence that would discredit the complainant. The State contends appellant's argument at trial does not comport with his argument on appeal, and therefore, appellant waived any error by the trial court in the exclusion of evidence. We agree. In order to properly preserve error on exclusion of evidence grounds, the proponent is required to object, obtain a ruling from the trial court or object to the trial court's refusal to rule, and make an offer of proof. TEX. R. APP. P. 33.1; TEX. R. EVID. 103(a)(1), (2); Williams v. State, 937 S.W.2d 479, 489 (Tex.Crim.App. 1996). The proponent must also state the grounds for the ruling he desires "with sufficient specificity to make the trial court aware of the complaint." Reyna v. State, 168 S.W.3d 173, 177 (Tex.Crim.App. 2005) (quoting Tex.R.App.P. 33.1). At the earliest opportunity, the proponent should have done everything necessary to bring to the judge's attention the evidence rule or statute in question and its precise application to the evidence in question. Id. When a single objection "encompasses complaints under both the Texas Rules of Evidence and the Confrontation Clause, the objection is not sufficiently specific to preserve error." Id. at 179 (citing Cantu v. State, 939 S.W.2d 627, 634 (Tex.Crim.App. 1997)). The same rationale applies equally to proffers of evidence and objections. Id. In Reyna v. State, Reyna, charged with indecency with a child, sought to cross examine the victim about a false allegation of sexual abuse she made against another man in 1995. Id. at 174. The trial court excluded the evidence, so Reyna objected, made an offer or proof, and obtained a ruling. Id. at 175. In his offer of proof, he argued the evidence should have been admitted to prove the credibility of the victim. Id. at 179. On appeal, Reyna argued the exclusion of evidence violated his Sixth Amendment right to confrontation. Id. at 175. The Texas Court of Criminal Appeals held Reyna waived review of the confrontation issue because Reyna's credibility argument could have referred to either the Rules of Evidence or the Confrontation Clause, and he did not clearly articulate his demand for admission. Id. at 179. Therefore, the judge never had the opportunity to specifically rule on the Confrontation Clause demand. Id. The facts in this case are parallel to those in Reyna. Before the presentation of Rita Jo Deshayes' testimony, the trial court granted the State's Motion in Limine with respect to testimony from Deshayes about conduct of the complainant in 2002. Appellant objected and reserved the right to make a bill of exception. In the bill of exception, appellant argued the evidence should have been admitted "because it would have gone to the weight, reliability and the credibility of the complainant." Just as in Reyna, when appellant generally argued the evidence was necessary for credibility purposes, he could have been referring to either the Rules of Evidence or the Confrontation Clause. Appellant did not argue with enough specificity to make the trial court aware of his confrontation argument and consequently failed to preserve the issue for appeal. Therefore, we overrule appellant's sole point of error and affirm the judgement of the trial court.CONCURRING MEMORANDUM OPINION
Appellant complains that the trial court erred in excluding evidence that would have discredited the complainant's credibility. Though the precise wording of appellant's issue states the trial court committed reversible error when it violated his Sixth Amendment right to confrontation and cross-examination, the body of his brief contains a broader argument, summarized as follows:
Summary of the Argument
In one point of error, the appellant complains that the trial court erred in failing to permit the appellant to introduce testimony showing a bias or prejudice by the complainant toward the appellant and a motive for her to fabricate a story against the appellant.The majority does not address this argument but instead concludes that appellant's objection below was not specific enough to preserve his constitutional challenge on appeal. The majority is correct that appellant waived his constitutional challenge by failing to assert it below. See Reyna v. State, 168 S.W.3d 173, 179-80 (Tex.Crim.App. 2005). However, this court should also address appellant's broader impeachment complaint asserted in his brief regarding the complainant's alleged bias, prejudice, or motive to fabricate. By failing to secure an adverse ruling on this complaint from the trial court, appellant failed to preserve error as to this broader complaint. A trial court's grant or denial of a motion in limine is a preliminary ruling only and normally preserves nothing for appellate review. Geuder v. State, 115 S.W.3d 11, 14-15 (Tex.Crim.App. 2003). To preserve error in the exclusion of evidence, the complaining party must actually offer the evidence or a summary of the evidence and secure an adverse ruling from the court. TEX. R. EVID. 103(a)(2); TEX. R. APP. P. 33.1(a); Guidry v. State, 9 S.W.3d 133, 153 (Tex.Crim.App. 1999). The record reflects the following exchange regarding the State's motion in limine:
[trial court:] We'll get on the record. The State's made a motion in limine with respect to testimony from Rita Deshayes about conduct of the complaining witness in 2002 and I granted the State's motion in limine. I don't think that her conduct in 2002 as far as Ms. Deshayes would be very probative of any issues before this jury but with respect to Ms. Deshayes [sic] testimony about things that happened in 2004, specifically the car incident at the office of the apartment complex that should come in.
[defense counsel:] Now if there were any incidents of stalking in 2004 would you consider that to be relevant?
[trial court:] If you're talking about [the complainant] doing something to Ms. Deshayes —
[defense counsel:] In —
[trial court:] Probably not. Can you be more specific?
[defense counsel:] Only in terms of making telephone calls, showing up at her job, driving by her home.
[trial court:] When?
* * *
[defense counsel:] Prior to August 12th.
[trial court:] Before July 3rd.
[defense counsel:] I think. Judge I'm really not sure.
[trial curt:] Probably not going to be relevant.
[defense counsel:] But I would like to reserve the right later to do an exception to the Bill.
[trial court:] Sure.After both Rita Deshayes and appellant had testified, appellant's counsel made the following record outside the presence of the jury:
[defense counsel:] Now comes Wayne Armelin. In Cause No. 1029992 where he has been charged with the offense of stalking and would except, by Bill of Exception to The Court's refusal to allow the testimony of Defendant Armelin witness Rita Jo Deshayes as to the activites of a complainant . . . during the months prior to the dates listed in the indictment being that Rita Jo Deshayes would have testified the complaining witness has continuously and without interruption for a period of 3 months driven by her home, made numerous telephone calls on her telephone, threatening not only Rita Jo Deshayes but also Mr. Wayne Armelin with the fact that each of them was going to go to hell or burn up in a lake of fire if they continued what she deemed as an illicit relationship and the Defendant Armelin submits that the jury should have heard such testimony because it would have gone to the weight, reliability and the credibility of the complainant for the stalking charge of which she has instigated and to which Mr. Armelin stands in trial today.
All right. Judge that's basically our Bill of Exception.
[trial court:] All right. Ya'll [sic] are free for lunch until 2:00.
[defense counsel:] Thank you.Significantly, there is no indication in the record that appellant ever secured an adverse ruling regarding the admissibility of such evidence. Thus, appellant has failed to preserve not only the constitutional claim the majority opinion addresses, but his broader impeachment complaint, as well.
The record does not reflect an attempt by appellant to question Ms. Deshayes regarding any of these matters or a refusal by the trial court to allow him to do so.