Dedric D'Shawn Jones v. State ( 2017 )

Opinion issued August 1, 2017
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00717-CR
———————————
DEDRIC D’SHAWN JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Case No. 1452040
DISSENTING OPINION
Dedric D’Shawn Jones was indicted for assaulting his girlfriend, A. Jimenez.
The key witness against him was Jimenez’s mother, A. Gonzales. At the time of
the assault trial, there was an ongoing Child Protective Services investigation and
proceedings to terminate Jones’s and Jimenez’s parental rights to their daughter,
pseudonymously referred to as Alice. In his assault trial, Jones sought to examine
Gonzales about her knowledge of and interest in the termination proceedings,
arguing that the termination proceedings provided Gonzales with a motive to
exaggerate her testimony against him to the extent she wanted to be awarded
custody of Alice. The trial court denied Jones’s pre-trial request to examine
Gonzales about the termination proceedings, and once the evidence began Jones
made an offer of proof in an effort to preserve error. But the offer of proof was
substantively defective—it failed to show bias stemming from the termination
proceedings. And it was procedurally defective as well—Jones failed to segregate
admissible evidence from inadmissible evidence and failed to obtain a ruling on
the offer of proof from the trial court. The court nevertheless holds that the trial
court erred in refusing to permit Jones to examine Gonzales about the termination
proceedings.
The court’s analysis ponders what testimony Jones might have elicited from
Gonzales and concludes that such speculative testimony—unpreviewed by
Gonzales herself—should have provided a basis for opening cross-examination to
include questions about the termination proceedings. Trial courts, facing the need
to make quick rulings in the midst of trial while the jury patiently waits in the jury
room, properly focus on the scope of the offered evidence and the procedures
followed by the offering party. The court ignores that reality and veers off to
2
consider what might have been offered. In effect, the court holds that when a trial
court makes a pre-trial ruling limiting the scope of cross-examination, the
proponent need not make a proper offer of proof demonstrating why the ruling was
error to obtain reversal on appeal, so long as he conjures up some post-hoc
justification for admitting the testimony in his appellate brief. Moreover, the
proponent need not even obtain a ruling on the deficient offer. That is not how our
law works.
Trial courts consider the evidence actually tendered during the offer of
proof, knowing that litigants often over-promise and under-deliver once required to
present the proof itself. Here, the offered testimony did not demonstrate that
Gonzales was any more potentially biased or prejudiced beyond what was already
apparent from the admitted evidence. This offer did not establish a basis for cross-
examining Gonzales about the termination proceedings to establish a bias.
While the court speculates what Jones’s offer of proof might have shown,
trial courts do not. They examine the actual evidence. Trial courts can refuse a
narrow offer of proof that invites speculation about what a fuller examination
would have revealed without concern of committing error. At least they could
before today. Now trial courts must consider whether an appellate court will
speculate how a party could have offered more evidence beyond the offered
evidence if the trial court were to allow examination about a subject matter. To
3
engage in such speculation, the trial court will itself have to act, in effect, as an
advocate for the party tendering the offer of proof to determine what else that party
could have tried to show, all the while without any indication from the witness that
such testimony is actually forthcoming.
Part of a trial court’s analysis is also to consider whether a party has
properly preserved its offer of proof. If the offer is procedurally flawed, the trial
court does not need to keep the jury waiting any longer to reconsider its initial
ruling and can refuse the offer without concern of committing error. At least it
could before today. Now it appears not to matter whether the offering party
properly segregates evidence or even obtains a ruling from the trial court;
reversible error is possible even if not preserved.
The court’s holding is legally incorrect. It sets forth an unworkable rule. And
it will encourage the filing of meritless appeals. For these reasons, I respectfully
dissent.
Exclusion of Evidence of Bias
The court holds that the trial court violated Jones’s constitutional right of
confrontation by refusing to permit him to examine Gonzales about her knowledge
of and interest in the CPS investigation and proceedings to terminate Jones’s and
Jimenez’s parental rights to their daughter, Alice. After voir dire but before the
presentation of any evidence, Jones asked about introducing evidence regarding the
4
CPS termination proceedings. The trial court stated that such evidence was not
relevant. Jones objected.
Later, during trial, Jones called Gonzales to testify in an offer of proof. See
TEX. R. EVID. 103(a).1 Jones’s attorney asked Gonzales whether she knew of a CPS
investigation; Gonzales testified that she was aware of such an investigation but
did not “have any say” in its outcome. Gonzales further testified that Alice was
living with her sister (the child’s great-aunt) during the trial, but that before that,
she (Gonzales) had been taking care of her. Jones did not secure a ruling on the
offer of proof once completed.
On appeal, Jones contends that this evidence showed that Gonzales was
potentially biased against him because she had an “apparent stake in the outcome
of” the CPS investigation and termination proceedings. He argues that Gonzales
had a potential motive to “exaggerate her testimony” against him because that
would increase the likelihood that he would be convicted, which, in turn, would
increase the likelihood of his parental rights being terminated and Gonzales
1
“Although the terms ‘offer of proof’ and ‘bill of exception’ are often used
interchangeably, they are governed by different rules and the method of error
preservation under each is different. When a trial court excludes evidence, a party
may preserve error by making a timely offer of proof.” Ethridge v. State, No. 01-
10-00027-CR, 2011 WL 2502542, at *3 (Tex. App.—Houston [1st Dist.] June 23,
2011, no pet.) (mem. op., not designated for publication) (citations omitted).
5
ultimately being awarded custody of Alice. Therefore, his argument continues, the
trial court violated his right of confrontation.
A. Standard of review and applicable law
The court properly sets forth the standard of review for an appellate court’s
review of a trial court’s decision to admit or exclude evidence: an abuse of
discretion. But by speculating about what evidence Jones may have been able to
develop on cross-examination, the court ignores that standard.
In exercising its discretion, the trial court must consider whether limiting
Jones’s right to cross-examine Gonzales based on the offer of proof (that is, the
questions and answers actually presented) denied him the right to expose a motive
that would interfere with Gonzales’s ability to be an impartial witness. See
Delaware v. Van Arsdall, 475 U.S. 673, 678–79, 106 S. Ct. 1431, 1435 (1986)
(recognizing that “exposure of a witness’ motivation in testifying is a proper and
important function of the constitutionally protected right of cross-examination”).
Because of the constitutional right of confrontation, a trial court must permit
a defendant to adduce evidence that would tend to establish ill feeling, bias,
motive, or animus on the part of a witness testifying against him. Johnson v. State,
490 S.W.3d 895, 910 (Tex. Crim. App. 2016). But the bias must create an
incentive to testify favorably for the prosecution. Thus, the proponent of the
evidence “must establish some causal connection or logical relationship between
6
the [source of bias] and the witness’ ‘vulnerable relationship’ or potential bias or
prejudice . . . or testimony at trial.” Carpenter v. State, 979 S.W.2d 633, 634 (Tex.
Crim. App. 1998) (holding that defendant was not entitled to impeach State’s
witness during cross-examination with evidence of pending federal charges against
witness when testimony supporting defendant’s offer of proof did “no more than
establish the factual basis of the pending federal charges”).
Even faced with potential bias, a trial court retains wide latitude under the
Confrontation Clause to impose restrictions on cross-examination for testimony
that is repetitive or only marginally relevant. Id. at 636 (Price, J., concurring)
(citing Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435). A trial court’s limitation
on cross-examination into a witness’s bias does not exceed its discretion or violate
the defendant’s right to confront a witness as long as the possible bias and motive
of the State’s witness is already shown in the record (i.e., the testimony is
repetitive) or is readily apparent. See Carmona v. State, 698 S.W.2d 100, 104 (Tex.
Crim. App. 1985) (effective cross-examination not denied when “defendant has
otherwise been afforded a thorough and effective cross-examination and . . . the
bias and prejudice of the witness is . . . patently obvious”). A trial court’s
discretion is exceeded only when it so drastically curtails the defendant’s cross-
examination as to leave him unable to show why the witness might have been
7
biased or otherwise lacked the level of impartiality expected of a witness. Johnson
v. State, 433 S.W.3d 546, 555 (Tex. Crim. App. 2014).
When a trial court excludes evidence pre-trial, that exclusion “is subject to
reconsideration throughout trial . . . .” Warner v. State, 969 S.W.2d 1, 2 (Tex.
Crim. App. 1998) (per curiam). Therefore, to preserve error, the proponent must
make an offer of proof. Id. The proponent may claim error on appeal “only if the
error affect[ed] a substantial right” of the proponent and the proponent informed
the trial court “of its substance by an offer of proof, unless the substance was
apparent from the context.” TEX. R. EVID. 103(a)(2); see also TEX. R. EVID. 103(c),
(d); Mims v. State, 434 S.W.3d 265, 271 (Tex. App.—Houston [1st Dist.] 2014, no
pet.) (error preserved by “making an offer of proof that demonstrates what
questions would have been asked and the expected answers to those questions”).
“The primary purpose of an offer of proof is to enable an appellate court to
determine whether the exclusion was erroneous and harmful.” Mays v. State, 285
S.W.3d 884, 890 (Tex. Crim. App. 2009) (quoting Steven Goode, Olin Guy
Wellborn III & M. Michael Sharlot, 1 TEXAS PRACTICE—GUIDE TO THE TEXAS
RULES OF EVIDENCE: CIVIL AND CRIMINAL § 103.3 (1993)). “A secondary purpose
is to permit the trial judge to reconsider his ruling in light of the actual evidence.”
Holmes v. State, 323 S.W.3d 163, 168 (Tex. Crim. App. 2009). When, as here, the
offer of proof assumes a question-and-answer form, we consider that evidence—
8
and not the lawyer’s post-hoc statements about that evidence—to determine
whether the trial court’s ruling was erroneous. See TEX. R. EVID. 103(a)(2); Moore
v. State, 275 S.W.3d 633, 635 (Tex. App.—Beaumont 2009, no pet.) (“Absent an
offer of proof or a bill of exception setting forth the evidence [the proponent]
sought to introduce, nothing is presented for our review on appeal.”).
B. The trial court did not err by excluding testimony regarding the CPS
investigation
The court holds that the trial court erred by limiting Jones’s cross-
examination of Gonzales to not allow questions about the termination proceedings.
The only evidence of the CPS termination proceedings was through Gonzales’s
testimony during Jones’s offer of proof.2
As the proponent of the evidence, Jones was required to establish, in his
offer of proof, “some causal connection or logical relationship” between the
excluded evidence and Gonzales’s alleged bias. See Carpenter, 979 S.W.2d at 634.
In light of Jones’s theory of why the evidence was a source of potential bias, to
establish the necessary causal connection or logical relationship, Jones’s offer of
proof was required to show that (1) Gonzales was aware of the then-pending CPS
2
Jones contends that certain evidence presented to the jury also showed that
Gonzales was biased. Specifically, Jones contends that evidence that Gonzales was
“highly protective” of Alice and that Gonzales had falsely testified Jimenez was a
“good kid” who never got in trouble showed that Gonzales was biased against him
and had a motive to exaggerate her testimony. I agree that this evidence
demonstrates a potential source of bias. It is not, however, a potential bias that is
related to the CPS termination proceedings.
9
termination proceedings; (2) Gonzales wanted to gain custody of Alice;
and (3) Gonzales believed that she could increase her chances of gaining custody
of Alice by exaggerating her testimony against Jones, possibly under the belief that
Jones might lose his parental rights if convicted.
In its entirety, the portion of Jones’s offer of proof addressing the CPS
termination proceedings was as follows:
Q. Do you know that there’s a CPS—that there’s a child custody
battle going on to eliminate parental rights of both [Jimenez]
and [Jones]?
A. Yes, sir.
Q. Do you have an interest in that being done?
A. I don’t understand what that means.
Q. Do you have a preference?
A. Do I have preference of what?
Q. That their parental rights be terminated or not?
A. I don’t have any say in that. That damage has been done
between the both of them.
Q. My understanding is the child is with an aunt; is that correct?
A. My sister.
Q. Your sister?
A. Yes. And before that, she was with me. I had her. I’ve always had her.
Q. The reason that you take care of the child is because of the
relationship that [Jones] and [Jimenez] have, correct?
10
A. I’m sorry?
Q. It’s because of the type of relationship that [Jimenez] and [Jones] have
and the things that they do destructive towards each other, correct?
A. I’m not sure I want to answer that.
Q. The reason—
A. Yes, that’s why I take care of her because I want her to be safe. She’s
a beautiful little girl. She deserves to be safe. (Witness crying.)
Jones’s limited offer of proof failed to show that the trial court erred by
excluding testimony regarding the CPS termination proceedings for two reasons.
First, Jones’s offer of proof did not suggest bias stemming from the CPS
termination proceedings. Second, Jones’s offer of proof was procedurally
defective. I consider each reason in turn.
1. Jones’s limited offer of proof did not demonstrate bias
The testimony in Jones’s limited offer of proof did not show and could not
have led a reasonable jury to conclude that Gonzales was biased against Jones
because she wanted custody of Alice.
First, Jones did not present any evidence suggesting that Gonzales wanted
custody of Alice. Nothing in the record indicates that Gonzales had requested
custody of Alice or desired to take custody from either her daughter or from
Alice’s great-aunt (Gonzales’s sister). Instead of asking her about her desire to
obtain custody, the cross-examination asked whether she had an “interest” or a
11
“preference” as to whether Jones’s and Jimenez’s rights to Alice should be
terminated. Gonzales’s response was that she did not have “any say” in the
outcome and that the “damage” had already “been done between” Jones and
Jimenez. Gonzales further testified that, while she had previously taken care of the
child, at the time of trial the child lived with Gonzales’s sister. Jones offered no
evidence—through examination during his offer of proof or otherwise—that
Gonzales desired or was seeking custody of Alice. Similarly, there was no
evidence regarding why Gonzales did not have custody at the time of trial instead
of her sister. Without evidence that Gonzales actually wanted custody of Alice,
Jones was unable to establish the required causal connection or logical relationship
between the CPS proceedings and Gonzales’s allegedly biased testimony.
Jones’s failure to establish whether Gonzales actually wanted or took steps
to obtain custody of Alice distinguishes this case from the two cases the court
relies on, Fox v. State, 115 S.W.3d 550 (Tex. App.—Houston [14th Dist.] 2002,
pet. ref’d), and Ryan v. State, No. 04-08-00594-CR, 2009 WL 2045211 (Tex.
App.—San Antonio July 15, 2009, no pet.) (mem. op., not designated for
publication). Fox and Ryan show that a direct interest in a child-custody dispute is
a valid area for cross-examination to expose bias or potential bias. Both cases
involved allegations of domestic violence. Fox, 115 S.W.3d at 554, 566; Ryan,
2009 WL 2045211, at *1, *3. In each case, the defendant-husband presented
12
evidence that the complainant-wife requested custody of the children or had
physical possession of the children at the time of trial and argued that her desire for
custody was a source of bias in her testimony at the criminal trial. See Fox, 115
S.W.3d at 568; Ryan, 2009 WL 2045211, at *4. By contrast, Jones did not
establish that Gonzales had sought or intended to seek custody of Alice in the
event that Jones’s and Jimenez’s parental rights were terminated or that she had a
direct interest in the termination proceedings. Thus, Fox and Ryan are inapposite
here. Neither case supports Jones’s argument or the court’s holding.
Second, Jones’s limited offer of proof did not suggest that Gonzales believed
that what happened in Jones’s criminal case could affect the CPS case’s outcome.
Even if the jury inferred that Gonzales wanted custody, the offer of proof did not
support a determination that Gonzales believed that she could increase her chances
of gaining custody by exaggerating her testimony against Jones. Again, without
such evidence, Jones was unable to establish the required causal connection or
logical relationship between evidence of the CPS proceedings and Gonzales’s
potential bias.
Third, Jones’s offer of proof failed to address a variety of other highly
relevant, related circumstances from which a factfinder might infer that Gonzales
believed the CPS proceedings could result in her obtaining custody of Alice and
was therefore potentially biased. There is no evidence that Gonzales had been
13
interviewed by CPS, was scheduled to be a witness in the CPS proceeding, knew
the claims made by CPS, or was otherwise involved in the termination
proceedings. There is no evidence that Gonzales knew the status of the CPS
proceedings or why the proceedings were instigated;3 knew any of the law
regarding parental-termination proceedings; or knew how a conviction against
Jones might affect the termination proceedings. Nor is there any evidence that
Gonzales believed she had the financial, physical, and legal ability to be granted
custody of Alice when Alice was at the time in the custody of her great-aunt.4
For these reasons, the offer of proof fell short of suggesting that Gonzales
had any bias against Jones for the purpose of aiding her own efforts to obtain
3
Jones may have shied away from offering any details because it would have
undermined his defense. Indeed, all the legal grounds for parental termination
would have been at a minimum damaging character evidence, and some potential
grounds would have directly damaged his defense that he only acted in self-
defense, such as if there were any allegation by CPS that Jones was abusing
Jimenez. See TEX. FAM. CODE § 161.001 (b)(1) (D) and (E) (providing that a
parent’s rights may be terminated if the parent “knowingly placed or knowingly
allowed the child to remain in conditions or surroundings which endanger the
physical or emotional well-being of the child” or “engaged in conduct or
knowingly placed the child with persons who engaged in conduct which endangers
the physical or emotional well-being of the child”).
4
There was no evidence explaining why Gonzales did not have custody at the time
of trial instead of her sister. Perhaps Gonzales thought it was important for
Jimenez to live with her and that she would not be able to do so if Jimenez’s
parental rights were terminated. Perhaps she believed her sister would be a better
guardian. Even if the proffered evidence had been presented to the jury, it would
have had no way to know the answers to these questions; it could only have
speculated, just as the court does now.
14
custody of Alice, much less that the trial court’s exclusion of the evidence fell
outside the zone of reasonable disagreement.
The offer of proof was, at best, repetitive of the evidence already before or
readily apparent to the jury. The jury knew that Gonzales cared for Alice, wanted
what was best of her, had once served as her primary caregiver, and believed Jones
was creating an unhealthy environment for her. It was readily apparent that if he
went to jail, Jones would not have custody of Alice. Thus, the jury already could
infer that Gonzales had a reason to potentially exaggerate her testimony against
Jones. The trial court permitted Jones to cross-examine Gonzales on her desire to
protect Alice, and Gonzales testified repeatedly that her primary concern was
Alice’s safety. From this testimony, the jury could have inferred that Gonzales had
an interest in testifying as she did, even without being made aware of parental
termination proceedings.
The offer of proof presented nothing new, except that Gonzales was aware
that termination proceedings were currently pending. But, as explained above, the
offer of proof did not show that Gonzales’s awareness of the pendency of those
proceedings was a source of potential bias against Jones beyond what was already
in the record or readily apparent. Thus, I would hold that Jones failed to
demonstrate that the trial court’s prohibition on cross-examination of Gonzales
with respect to the termination proceedings resulted in the exclusion of admissible
15
evidence of bias. See Mays, 285 S.W.3d at 889–90 (“primary purpose” of offer of
proof is to enable appellate review by “set[ting] forth the substance of the proffered
evidence”); Mims, 434 S.W.3d at 271 (offer of proof must show “what questions
would have been asked and the expected answers to those questions” if
examination had been permitted). It was Jones’s burden in the offer of proof to
“establish some causal connection or logical relationship between the pending”
parental-termination proceedings and Gonzales’s potential bias as a result.
Carpenter, 979 S.W.2d at 634. He failed to do so.
The principal difference between my analysis and that of the court concerns
whether we should consider what Jones’s attorney might have shown by a full
cross-examination or only what he actually did show in his limited offer of proof.
According to the court, “the controlling question on appeal is whether, had [Jones]
been able to cross-examine Gonzales on the termination proceedings and her
interest in them, he could have made the jury aware of a bias or interest on her part
that would motivate her to testify against him on the underlying offense of
domestic violence against Jimenez because of her interest in his child.” The court
fundamentally misunderstands the scope of our review.5 We are not supposed to
5
The court compounds its errors by raising arguments that were not presented in the
trial court and are not presented now, concluding that Gonzales offered
inadmissible, unfairly prejudicial evidence regarding the dangers Jones presented
to Gonzales’s granddaughter.
16
consider what Jones “could have made the jury aware of”; instead, we consider
what the testimony from the offer of proof would have shown the jury had it been
admitted.6 See TEX. R. EVID. 103(a)(2) (proponent must make offer of proof that
informs trial court of substance of evidence unless substance is apparent from
context); Mims, 434 S.W.3d at 271 (error is preserved by “making an offer of proof
that demonstrates what questions would have been asked and the expected answers
to those questions”).
In other words, we must consider the evidence from the offer of proof, not
what we think a fuller cross-examination on the topic might have revealed. See
Mims, 434 S.W.3d at 271. Thus, I would hold that Jones’s specific offer of proof—
which must frame our analysis—failed to suggest any bias related to the CPS
termination proceeding and, therefore, that Jones failed to establish a right to
examine Gonzales about that proceeding.
6
I note that the trial court did not—and could not properly—limit the offer of proof.
See TEX. R. EVID. 103(c) (trial court must allow party to make offer of proof and,
at party’s request, must direct that offer of proof be made in question-and-answer
form); Dopico v. State, 752 S.W.2d 212, 215 (Tex. App.—Houston [1st Dist.]
1988, pet. ref’d) (holding that trial court “erred by refusing to allow an offer of
proof in question and answer form”); Andrade v. State, 246 S.W.3d 217, 226 (Tex.
App.—Houston [14th Dist.] 2007, pet. ref’d) (“The right to make an offer of proof
is absolute . . . .”). This underscores the fact that it was Jones’s burden to show,
through his offer of proof, a causal connection or logical relationship between the
pending parental-termination proceedings and Gonzales’s potential bias as a result.
To the extent his offer fell short of what it might have revealed concerning
Gonzales’s bias, it did so because Jones failed to elicit helpful testimony and, as a
result, failed to meet his burden.
17
2. Jones’s limited offer of proof was procedurally defective
Not only did Jones’s offer of proof fail to demonstrate bias, it also suffered
from two procedural defects.
First, Jones’s offer of proof failed to segregate admissible evidence from
inadmissible evidence. Jones’s offer of proof included other items of evidence that
the trial court had already excluded—i.e., evidence of a violent past between
Jimenez and Gonzales and other instances of violence by Jimenez. For the first
three-and-a-half pages of the transcript, consisting of 26 questions and answers,
Jones cross-examined Gonzales regarding Jimenez’s reputation for violence,
threats against another woman who also had a child with Jones, threats against and
physical violence against Gonzales, “fighting and fussing” with Jones, and an
incident that occurred the night before Gonzales’s trial testimony when someone
let the air out of Gonzales’s tires. The trial court did not abuse its discretion in
excluding this evidence.7
7
In a separate issue, Jones argues that he should have been allowed to present
evidence of Jimenez’s violent past for three reasons. I note that Jones did not
preserve all of his arguments for appeal. But assuming that he did, they are all
unavailing. First, Jones argues that the evidence was admissible under Rule of
Evidence 404, specifically those provisions that apply when the defendant offers
evidence of the defendant’s or the complainant’s character, and the prosecutor
seeks to rebut that evidence. TEX. R. EVID. 404(a)(2)(A), (a)(3)(A). But this case
presents the opposite situation: the testimony was given by a witness called by the
State, and it is the defendant who seeks to rebut it. Second, Jones argues that the
evidence was admissible under Rule of Evidence 405, which permits cross-
examination into relevant specific instances of a person’s conduct, but only when
evidence of that person’s character or character trait is admissible. TEX. R.
18
“When a trial judge is presented with a proffer of evidence containing both
admissible and inadmissible statements and the proponent of the evidence fails to
segregate and specifically offer the admissible statements, the trial court may
properly exclude all of the statements.” Sohail v. State, 264 S.W.3d 251, 260–61
(Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (quoting Willover v. State, 70
EVID. 405(a)(1). Jones does not present any argument supporting admissibility of
evidence of Jimenez’s character, except in rebuttal, and does not brief his
argument based on Rule 405. Accordingly, he has waived any argument by
inadequate briefing. See TEX. R. APP. P. 38.1(i). Third, Jones argues that the
evidence was admissible for the purpose of correcting a false or misleading
impression created in the minds of the jurors by Gonzales’s testimony that
Jimenez had “always been a good kid” who “never was in trouble.” Jones has
failed to demonstrate that the cross-examination he sought to conduct of Gonzales
was relevant to either the offense charged or the defense of self-defense. Whether
Jimenez had a history of violence has no bearing on any element of the offense of
assault of a family member. And Jones made no effort to demonstrate that he
knew Jimenez had been violent with her mother in the past, causing him to
reasonably believe it was “immediately necessary” to strike Jimenez in self-
defense. See TEX. PENAL CODE § 9.31(a). Moreover, the offer of proof regarding
Jimenez’s violent past is extremely sparse. To the extent Jones preserved any
arguments regarding rebuttal evidence related to Jimenez’s past violence, the trial
court’s decision to exclude such evidence fell within the zone of reasonable
disagreement.
Jones also included in his offer of proof inadmissible evidence that Jimenez
disabled Gonzales’s car by letting air out of its tires to prevent Gonzales from
testifying at Jones’s trial. Jones argues that this evidence was admissible to rebut
Gonzales’s testimony regarding Jimenez’s character. Jones’s argument fails
because Jones did not offer any proof that Jimenez disabled Gonzales’s car. On the
contrary, Gonzales, who was the only witness on this topic, testified that she did
not know who let air out of her car’s tires, but that other cars were also affected.
She also testified that she believed that “some kid,” not Jimenez, was responsible
and that Jimenez had no motive to disable the car. Thus, Jones did not present any
evidence to the trial court that would tend to indicate that it was Jimenez who
disabled the vehicle. The trial court properly excluded this evidence.
19
S.W.3d 841, 847 (Tex. Crim. App. 2002)).8 Because Jones failed to segregate
Gonzales’s statements relating to Jimenez’s violent conduct from her statements
relating to the CPS termination proceedings, and because the former were properly
excluded, the trial court was entitled to exclude the latter as well.
Second, and perhaps more fundamentally, Jones failed to obtain a ruling
from the trial court. Preservation of error requires not only “an offer by the
defendant” but also “a ruling from the trial court.” Bohannan v. State, No. 09-13-
00090-CR, 2014 WL 5490936, at *5 (Tex. App.—Beaumont Oct. 29, 2014, pet.
granted); see Ites v. State, 923 S.W.2d 675, 678 (Tex. App.—Houston [1st Dist.]
1996, pet. ref’d) (holding that State did not preserve error on trial court’s improper
8
See TEX. R. EVID. 103(a)(2); Jones v. State, 843 S.W.2d 487, 492–93 (Tex. Crim.
App. 1992) (“Because appellant failed to specify which portion of the transcript he
intended to introduce into evidence, the court was presented with a proffer
containing both admissible and inadmissible evidence. When evidence which is
partially admissible and partially inadmissible is excluded, a party may not
complain upon appeal unless the admissible evidence was specifically offered.
Thus, since the substance of the specific evidence that appellant sought to
introduce was not presented to the court, it was not an abuse of discretion for the
trial court to exclude the transcript.”), abrogated on other grounds by Maxwell v.
State, 48 S.W.3d 196 (Tex. Crim. App. 2001); 2 Steven Goode & Olin Guy
Wellborn III, TEXAS PRACTICE SERIES, GUIDE TO THE TEXAS RULES OF EVIDENCE
§ 103.2, at 20 (4th ed. 2016) (noting that when offer of proof fails to segregate
admissible evidence from inadmissible evidence, appellant “will be told by the
appellate court that it was his responsibility” to separate them “and an objection
that was good as to part of the unsegregated mass may be sustained as to all.”); G.
Dix and J. Schmolesky, 43A TEXAS PRACTICE SERIES, CRIMINAL PRACTICE AND
PROCEDURE § 53:130, at 1135 (3d ed. 2011) (observing that if evidence “is not
only partly admissible but also partly inadmissible, the offer of proof must
specifically identify and offer the admissible portion in order to preserve error”).
20
exclusion of confession in part because there was no ruling sustaining objection to
testimony). Jones’s counsel never obtained a ruling on the admissibility of the
offered testimony, and without a ruling, he did not preserve error.9
Conclusion
The court’s holding is legally incorrect: it ignores well-established law
governing offers of proof and appellate review of evidentiary rulings. The holding
sets forth an unworkable rule that ignores the realties facing trial courts with busy
dockets and limited resources. And it will encourage litigants to file meritless
appeals—and encourage appellate courts to indulge them. For these reasons, I
respectfully dissent.
Harvey Brown
Justice
Panel consists of Justices Jennings, Keyes, and Brown.
Justice Brown, dissenting from the judgment.
Publish. TEX. R. APP. P. 47.2(b).
9
The trial court’s pretrial finding that the testimony was not relevant is analogous to
a ruling on a motion in limine, which generally does not preserve error related to
the exclusion of evidence. See Geuder v. State, 115 S.W.3d 11, 14–15 (Tex. Crim.
App. 2003).
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