Armelin, Wayne v. State ( 2006 )

Affirmed and Majority and Concurring Memorandum Opinions filed October 3, 2006

Affirmed and Majority and Concurring Memorandum Opinions filed October 3, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00680-CR

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WAYNE MARK ARMELIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 1029992

C O N C U R R I N G   M E M O R A N D U M   O P I N I O N

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, 179B80 (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 B

[defense counsel:] In B

[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^[[1]] 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.    

/s/      Kem Thompson Frost

Justice

Judgment rendered and Majority and Concurring Memorandum Opinions filed October 3, 2006.

Panel consists of Justices Anderson, Edelman, and Frost.  (Anderson, J., majority).

Do Not Publish C Tex.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

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^[1]  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.