Opinion
No. 04-15-00199-CR
02-24-2016
Gabriel JIMENEZ, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 379th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR0420
Honorable Ron Rangel, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED
A jury convicted appellant Gabriel Jimenez on one count of injury to a child and assessed punishment at eighteen years' confinement. On appeal, Jimenez argues the trial court erred in granting the State's motion, which sought to exclude certain evidence during the punishment phase of trial. We affirm.
BACKGROUND
After bringing their daughter to a medical facility, where she was examined and determined to be malnourished, Jimenez and his wife were charged with one count of injury to a child. Both Jimenez and his wife were tried separately, and a jury found them guilty. At the beginning of the punishment phase of Jimenez's trial, the State made an oral motion seeking to exclude any testimony by Jimenez's wife regarding the sentence she received after her conviction. The State argued the proposed testimony was irrelevant and prejudicial. In response, Jimenez argued the testimony was relevant because his wife was convicted for the same offense. The trial court granted the State's motion. Thereafter, both sides proceeded and presented evidence, and the jury ultimately assessed punishment at eighteen years' confinement.
ANALYSIS
In his sole issue on appeal, Jimenez argues the trial court erred when it granted the State's motion seeking to exclude any testimony by Jimenez's wife regarding her sentence. According to Jimenez, the trial court's decision prevented him from presenting relevant evidence that would have served as a mitigating factor for the jury to consider in assessing his sentence.
In response, the State argues Jimenez waived this issue because he never attempted to offer his wife's testimony regarding her sentence into evidence. According to the State, its oral motion seeking to exclude any testimony by Jimenez's wife regarding her sentence was a motion in limine, and Jimenez cannot preserve error by relying on a ruling on a motion in limine. See Geuder v. State, 115 S.W.3d 11, 14-15 (Tex. Crim. App. 2003); Norman v. State, 523 S.W.2d 669, 671 (Tex. Crim. App. 1975); Swilley v. State, 465 S.W.3d 789, 795 (Tex. App.—Fort Worth 2015, no pet.). We agree with the State.
Applicable Law
A motion in limine is a way to object to "an area of inquiry prior to the matter reaching the ears of the jury." Thierry v. State, 288 S.W.3d 80, 86 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd) (citing Norman, 523 S.W.2d at 671); see also Geuder, 115 S.W.3d at 14 (stating that true motion in limine merely requests party not be permitted to mention particular evidence). It is well- settled that a trial court's ruling — grant or denial — on a motion in limine does not preserve error for appeal. Geuder, 115 S.W.3d at 14 (citing Draught v. State, 831 S.W.2d 331, 333 n.1 (Tex. Crim. App. 1992)); Norman, 523 S.W.2d at 671; Thierry, 288 S.W.3d at 86; Harnett v. State, 38 S.W.3d 650, 655 (Tex. App.—Austin 2000, pet. ref'd) ("It is axiomatic that motions in limine do not preserve error."). This is because a ruling on a motion in limine is not a ruling on the merits; rather, it is a ruling that regulates the administration of trial. Thierry, 288 S.W.3d at 86; Harnett, 38 S.W.3d at 655. Moreover, a trial court's decision on matters presented in a motion in limine is subject to reconsideration throughout the course of trial. Norman, 523 S.W.2d at 671. Accordingly, to preserve error for appeal, a party must make an objection to the trial court's exclusion of evidence after an offer of the evidence is made at some point during the course of the trial. Fuller v. State, 827 S.W.2d 919, 929 (Tex. Crim. App. 1991) (holding that because appellant never introduced evidence at trial and trial court never excluded it, no complaint preserved for appeal). If a party does not attempt to introduce the evidence at trial, then the trial court never excludes it. Id.
Application
Here, Jimenez does not argue the trial court excluded evidence he attempted to offer at trial; rather, he argues the trial court erred in granting the State's motion. It is undisputed that at the beginning of the punishment phase of trial, the State made an oral motion seeking to exclude any testimony by Jimenez's wife regarding the sentence she received for her conviction. We agree with the State that its oral motion is a motion in limine as it is an objection to a specific area of inquiry — Jimenez's wife's sentence — prior to the matter reaching the ears of the jury. See Thierry, 288 S.W.3d at 86.
As noted above, the trial court's grant of the State's motion in limine, without more, does not preserve a complaint for appeal. See Geuder, 115 S.W.3d at 14; Norman, 523 S.W.2d at 671; Thierry, 288 S.W.3d at 86; Harnett, 38 S.W.3d at 655. Moreover, a review of the record reveals that at no point did Jimenez attempt to offer his wife's testimony into evidence. See Fuller, 827 S.W.2d at 929. Accordingly, because Jimenez does not complain about the actual admission of evidence, he has not presented us with a reviewable complaint. See Geuder, 115 S.W.3d at 14; Norman, 523 S.W.2d at 671; Thierry, 288 S.W.3d at 86; Harnett, 38 S.W.3d at 655. We therefore overrule Jimenez's sole issue on appeal.
CONCLUSION
Based on the foregoing, we affirm the trial court's judgment.
Marialyn Barnard, Justice Do Not Publish