Michael Troy Dowdell v. State ( 2007 )

Affirmed and Memorandum Opinion filed April 10, 2007

Affirmed and Memorandum Opinion filed April 10, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-04-00695-CR

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MICHAEL TROY DOWDELL, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 3

Harris County, Texas

Trial Court Cause No. 1224201

M E M O R A N D U M   O P I N I O N

Appellant, Michael Troy Dowdell, appeals his conviction for misdemeanor assault of a family member.  See Tex. Penal Code Ann. ' 22.01 (Vernon 2003).  We affirm.

Factual and Procedural Background

On the morning of January 2, 2004, appellant and his wife, L=Tonya Dowdell, the complainant, got into an argument about finances.  During the dispute, appellant pressed his hand to complainant=s face, scratching her cheek and busting her lip.  Knowing the situation would get worse if it did not stop, complainant then pushed appellant.  The confrontation continued when complainant went into the bathroom to get toilet paper to wipe the blood on her face.  When complainant turned around from getting the toilet paper, appellant, who had followed complainant into the bathroom, pushed her into the wall, knocking the brass toilet paper holder off the wall. They continued to argue until appellant again pushed complainant, this time into the whirlpool tub. Within five minutes after the bathroom confrontation, appellant left for work, taking all of the car keys in the house.  Appellant was arrested later that day.

Appellant was charged with the offense of misdemeanor assault of a family member.  Tex. Penal Code Ann. ' 22.01 (Vernon 2003).  After pleading not guilty, appellant was found guilty as charged by a jury.  The trial court sentenced appellant to one year in jail, probated for two years, and a fine of $4,000, which was not probated.

Discussion

In his first three issues, appellant argues the trial court violated his constitutional right to confront and cross-examine witnesses against him.  In his fourth and final issue, appellant argues the trial court erred when it denied his requested verdict of acquittal on charges that he had caused bodily injury to the complainant by striking her with his hand.

I.        Appellant Failed to Preserve Error on His Confrontation Complaints.

In his first three issues, appellant asserts the trial court violated his constitutional right to confront and cross-examine witnesses against him when it refused to permit appellant to confront the complainant with testimony (1) that she had attacked him both in the morning and the evening of the date charges were filed against him; (2) that the complainant had taken approximately $17,000 out of various bank accounts under appellant=s control during the time he was in custody; and (3) that the complainant had repeatedly called appellant=s place of work.

The constitutional right of confrontation is violated when appropriate cross-examination is limited.  Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996).  However, even constitutional error may be waived by failure to raise the issue at trial.  Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).  Specifically, a defendant waives his constitutional right to confront witnesses if he does not object to the denial of that right at trial.  Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App. 1991).  In addition, a party seeking to introduce evidence must meet an objection with argument stating the basis for its admission.  Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005).  If the proponent of the evidence does not clearly articulate to the trial court that the Confrontation Clause requires the admission of the challenged evidence, he fails to do everything necessary to bring to the judge=s attention the evidence rule or statute in question and its precise and proper application to the evidence in question and error is not preserved.  Id. at 179B80.  It is not enough to merely attempt to introduce the evidence or to tell the judge that evidence is admissible.  Id. at 179.  The proponent, if he is the losing party on appeal, must have told the judge why the evidence was admissible.  Id.

A.      The Alleged Morning Assault

Appellant has not cited, nor does the record reveal, that the trial court ruled or refused to rule on the admissibility of testimony regarding the alleged morning assault.  In addition, appellant has not demonstrated that he obtained a ruling from the trial court on whether the evidence was admissible under the Confrontation Clause. Finally, the offer of proof made by appellant does not include any proffered testimony about the alleged morning assault by the complainant. For these reasons, appellant failed to preserve this complaint for appellate review.  Tex. R. App. P. 33.1; Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000); Eustis v. State, 191 S.W.3d 879, 885B86 (Tex. App.CHouston [14th Dist.] 2006,  pet. ref=d); Giesberg v. State, 945 S.W.2d 120, 128 (Tex. App.CHouston [1st Dist.] 1996, pet. ref=d).

B.      The Alleged Evening Assault

While appellant did include proposed testimony regarding the alleged evening assault by the complainant in his offer of proof, there is no evidence the trial court actually denied appellant the opportunity to cross-examine the complainant regarding this alleged assault.  Indeed, there is no evidence in the record that appellant even attempted to cross-examine the complainant regarding the alleged evening assault.  As appellant has failed to demonstrate that the trial court actually excluded this testimony, and also failed to show he obtained a ruling from the trial court on whether the evidence was admissible under the Confrontation Clause, appellant has failed to preserve this complaint for appellate review.  Id.  We overrule appellant=s first issue on appeal.

C.      The Alleged Withdrawal of Money by Complainant

In his second point of error, appellant complains he was denied the opportunity to confront the complainant regarding her alleged withdrawal of money from appellant=s bank accounts while appellant was in custody.  Appellant raised the issue of the alleged withdrawals during a bench conference.  The trial court inquired if the complainant had a legal right to withdraw the funds.  Appellant=s counsel was uncertain of the status of the accounts and based on that uncertainty, the trial court refused to allow appellant to question complainant regarding the alleged withdrawals.  The trial court informed appellant he would revisit the issue if the appellant was able to produce evidence that the complainant did not have the legal right to make the alleged withdrawals.  Appellant objected to the exclusion of the evidence, stating it was needed to demonstrate that the complainant had a motive to keep the appellant in jail.  Appellant did not object to the exclusion of the evidence on the basis of the Confrontation Clause and therefore this issue is not preserved for appellate review.  Eustis, 191 S.W.3d at 885B86.  We overrule appellant=s second issue.

D.        Testimony Regarding the Complainant=s Alleged Calls to Appellant=s Business

In his third issue, appellant asserts he was denied the opportunity to confront complainant with testimony that she repeatedly called appellant=s business.  Specifically, appellant complains that he was not allowed to call two witnesses, Rebecca Wolt and Theresa Wolt, to testify about the complainant calling appellant=s office and requesting financial information about the company=s mortgage business.  There is no evidence in the record that appellant attempted to present this testimony and no evidence the trial court ruled adversely to appellant.  Appellant mentioned this testimony for the first time when he included it in his offer of proof after both the State and appellant had rested their cases.

The complaining party has the burden to present a sufficient record to the appellate court to show error requiring reversal.  Tex. R. App. P. 33.1(a).  A party satisfies only a part of this requirement by making an offer of proof containing excluded testimony.  Giesberg, 945 S.W.2d at 128.  To preserve error for the exclusion of evidence, a party must show he  offered a timely objection to the trial court=s refusal to allow certain testimony at trial and obtained a ruling by the trial court on the objection, or any error is waived.  See id. (holding where there is no record of the court ruling excluding the evidence, and even if the existence of a bill of exceptions standing alone could show the court excluded the evidence, no error was preserved because it did not show nature of the objection evoking the ruling); Ites v. State, 923 S.W.2d 675, 678 (Tex. App.CHouston [1st Dist.] 1996, pet. ref=d) (holding no error preserved despite existence of bill of exceptions when there is no indication of where in the record the proponent proffered the evidence, opponent objected to it, or the trial court ruled to exclude it); Medina v. State, 828 S.W.2d 268, 270 (Tex. App.CSan Antonio 1992, no pet.) (finding appellant waived appellate consideration of the trial court=s refusal of testimony by failing, during trial, to make the required offer of proof of the evidence included in the bill of exception).

We have reviewed the record and appellant made no attempt to introduce the evidence he claims on appeal the trial court improperly excluded.  In addition, appellant has not cited, nor does the record reveal, that the trial court ruled or refused to rule on the admissibility of this evidence.  As appellant has failed to demonstrate the trial court actually excluded this testimony, and by failing to offer that testimony during trial or obtain a ruling from the trial court on whether that evidence was admissible, appellant failed to preserve this issue for appellate review.  See Giesberg, 945 S.W.2d at 128; Ites, 923 S.W.2d at 678.  We overrule appellant=s third issue on appeal.

II.       Appellant Waived His Issue Challenging the Trial Court=s Denial of His Motion for Directed Verdict

In his fourth issue, appellant argues the trial court erred in denying his motion for directed verdict.  Appellant was charged with causing bodily injury to the complainant by pushing her, as well as by striking her with his hand.  Both counts were submitted to the jury.  Appellant argues that since the jury was permitted to return a general verdict and, according to appellant, the State did not present sufficient evidence that appellant hit the complainant with his hand, it is impossible to determine whether any members of the jury based their verdict on this improper basis thus entitling him to a new trial.  However, appellant presents no legal authority to support his contentions as he is required to do pursuant to Rule of Appellate Procedure 38.1(h).  As appellant has inadequately briefed this issue, it is waived.  Hankins v. State, 132 S.W.3d 380, 385 (Tex. Crim. App. 2004).  We overrule appellant=s fourth issue.

Conclusion

Having overruled each of appellant=s issues on appeal, we affirm the judgment of the trial court.

/s/          John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed April 10, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).