Opinion
NUMBER 13-12-00351-CR
04-03-2014
JOSE L. ORTEGA, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 319th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Perkes
Memorandum Opinion by Justice Perkes
Appellant Jose Luis Ortega appeals his conviction for one count of failure to register as a sex offender, see TEX. CODE CRIM. PROC. ANN. arts. 62.051(a), 62.055(a) (West, Westlaw through 2013 3d C.S.), and one count of failure to comply with the sex-offender registration requirements, see id. art. 62.102(a), (b)(2) (West, Westlaw through 2013 3d C.S.). Each offense is a third-degree felony that was enhanced to a second-degree felony because of a prior felony conviction for burglary of a vehicle. See TEX. PENAL CODE ANN. § 12.41(a) (West, Westlaw through 2013 3d C.S.).
Appellant entered a plea-bargain agreement with the State, pleaded guilty to both counts and true to the enhancement allegation, judicially confessed to committing the offenses, and stipulated to the State's evidence supporting his guilty pleas. Pursuant to the plea-bargain agreement, for each count, the trial court sentenced appellant to ten-years confinement in the Texas Department of Criminal Justice, Institutional Division. The trial court ordered the sentences to run concurrently.
By a single issue on appeal, appellant argues the trial court erred by excluding certain testimony at the punishment phase of trial. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1992, appellant was convicted of aggravated sexual assault of a child ("reportable conviction" or "reportable offense"). Upon release from prison for his sentence for the reportable conviction, appellant was required to register as a sex offender for life. See TEX. CODE CRIM. PROC. ANN. art. 62.101(a)(1) (West, Westlaw through 2013 3d C.S.). He was also required to verify his registration annually on his birthday, which is September 30th.
On October 30, 2010, a Corpus Christi police officer was checking to see if the registered sex offenders who were supposed to be residing in his assigned territory were in fact still residing at the addresses they reported. When he attempted to contact appellant at the most recent address he reported, the property manager advised that appellant was evicted four weeks earlier and had not been seen since that time. On November 4, 2010, the custodian of sex offender registration records for the Corpus Christi Police Department was auditing sex offender files and found that appellant had not returned for his annual registration, which was due to be completed in September.
Appellant was arrested and charged. Appellant's counsel sought continuances of the first two trial settings based on the unavailability of the victim of the reportable offense to testify at the punishment phase of trial. According to his counsel, the victim of the reportable offense would testify that it was appellant's brother, not appellant, who sexually assaulted her, and thus appellant was not really a sex offender who should be punished for failure to register and comply with sex offender registration requirements. Appellant's counsel told the trial court that the victim of the reportable offense was a single mother who lived out of town. His counsel described that the victim's childcare and transportation difficulties prevented her from traveling to Corpus Christi for trial. While the trial court questioned the relevance of the victim's testimony in a trial concerning the failure to register some twenty years later, it did not rule on the admissibility of the victim's testimony. Instead, the trial court referred the case to "jail court" and informed appellant's counsel that he was free to make this argument to the jail court.
For reasons not apparent from our record, the case was not tried in jail court. At the docket call before the third trial setting, appellant's counsel informed the trial court that he had still not secured the trial attendance of the victim of the reportable offense. On the morning of the third trial setting, the State and defense both announced ready for trial. Appellant's counsel again stated that he had not secured the trial attendance of the victim of the reportable offense, but indicated that he would go ahead and try the guilt-innocence phase of the case.
Prior to voir dire on the morning of trial, the State made an oral motion in limine asking that appellant's counsel not discuss during voir dire his contention that appellant was wrongfully convicted. Appellant's counsel responded that appellant would be pleading guilty to the new charges, but that he intended to call the victim to testify that appellant did not sexually assault her. The State replied that it was only asking that appellant's counsel not mention this matter during voir dire, adding, "whether or not her testimony is ultimately admissible is a debate we're going to have to have, but I don't know if we have to have it prior to voir dire."
The trial court granted the State's motion in limine, stating that it thought that it "previously indicated at least initially that" it was not going to admit testimony from the victim of the reportable offense at trial. Appellant's counsel then asked whether the victim could testify at the punishment phase of trial. The trial court responded, "Well my gut feeling is no," and added, "it's probably premature to make a ruling on that at this point. But my gut feeling is that . . . any prior victim in an offense can't come in and try to overturn or invalidate the conviction." Appellant's counsel explained that he was not attempting to invalidate the reportable offense, but instead was attempting to mitigate punishment. The trial court reiterated its "gut feeling," adding "you certainly can . . . do whatever you want to do to preserve whatever appellate point you might want." The trial court then stated, "And we can talk about it after a jury is selected and—unless you all want to do it now."
Thereafter, the parties selected a jury without further discussion of the admissibility of the victim's testimony. After the jury was sworn, appellant and the State entered a plea-bargain agreement. Appellant pleaded guilty to both offenses in exchange for the ten-year concurrent sentences. Though offered a chance to speak on any matter, Appellant's counsel did not mention the victim's testimony again or make any offer of proof concerning her testimony. After sentencing appellant, the trial court certified that appellant had a right to appeal this case.
II. ANALYSIS
By a single issue, appellant argues that the trial court erred by ruling that the victim of the reportable offense could not testify at the punishment phase of trial that he did not sexually assault her.
To preserve a complaint for appellate review, a party must make a timely, specific complaint in the trial court. See TEX. R. APP. P. 33.1; see also TEX. R. EVID. 103. "It is axiomatic that motions in limine do not preserve error." Thierry v. State, 288 S.W.3d 80, 87 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd); Harnett v. State, 38 S.W.3d 650, 655 (Tex. App.—Austin 2000, pet. ref'd) ("Even if there has been a violation of the order on the motion in limine, it is incumbent that a party object to the admission or exclusion of evidence or other action [at trial] in order to preserve error for appeal."). A ruling on a State's motion in limine that excludes evidence is subject to reconsideration and is therefore insufficient to preserve a complaint for appellate review unless an offer of the evidence is also made at trial and a ruling obtained from the trial court. Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998) (per curiam).
In this case, the trial court's ruling on the State's motion in limine to exclude the mention of the victim's testimony during voir dire was insufficient to preserve the appellate complaint that the trial court erred in excluding the victim's testimony at the punishment phase of trial. See id.; see also TEX. R. APP. P. 33.1. The parties never presented evidence before the jury, and the victim's testimony was never offered at the punishment phase of trial. Appellant's sole issue on appeal is overruled.
III. CONCLUSION
We affirm the trial court's judgment.
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).