Shaun Anthony Nelson v. State

Affirmed and Memorandum Opinion filed December 14, 2010.

In The

Fourteenth Court of Appeals

NO. 14-09-00779-CR

Shaun Anthony Nelson, Appellant

v.

The State of Texas, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1115016

MEMORANDUM OPINION

In a single issue, appellant Shaun Anthony Nelson appeals his conviction for aggravated sexual assault of a child, claiming that the trial court erred in sustaining the State’s relevance objection to evidence that appellant claims would have established a witness’s bias against him.  We affirm.

Factual and Procedural Background

Appellant was charged with the offense of aggravated sexual assault of a child, his five-year-old stepdaughter, Alison.[1]  Appellant pleaded “not guilty” to the charged offense.

At trial, Alison’s mother, Victoria, testified that Alison’s maternal grandmother Maria sought custody of Alison.  According to Victoria, Maria did not like appellant because he was black and did not work.  In the State’s cross-examination, Victoria admitted Maria also disliked appellant because he smoked “a lot of pot.” 

Appellant called Maria to testify.  In her testimony, she acknowledged that the reason she sought custody of Alison even before she learned of the charged offense was because appellant was using “a lot of pot and drugs” and failed to remain employed.  In reference to Maria’s son, Carlos, appellant asked Maria, “Isn’t it true that Carlos does pot and drugs?”  The State objected on relevance grounds, and the trial court sustained the objection. Appellant had no other questions of Maria.

The jury found appellant guilty as charged.  After finding an enhancement paragraph to be true, the trial court sentenced appellant to twenty-five years’ confinement.

In his sole issue on appeal, appellant claims the trial court erred in sustaining the State’s objection on relevance grounds to Maria’s testimony about Carlos’s drug use, which appellant asserts would have demonstrated that Maria was biased against appellant.

Analysis

To preserve error in the exclusion of evidence, the complaining party must make an offer of proof or file a bill of exceptions to make the substance of the evidence known.  See Tex. R. Evid. 103(a)(2); LaHood v. State, 171 S.W.3d 613, 621 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).  Otherwise, a reviewing court cannot assess whether the exclusion was erroneous or harmful.  LaHood, 171 S.W.3d at 621.  When, as in this case, the excluded evidence was intended to call into question a witness’s “bias, interest, prejudice, inconsistent statement, traits of character affecting credibility, or evidence that might go into any impairment or disability affecting the witness’s credibility,” the accused has less rigid requirements to preserve error for appeal.  See id. at 622; Mumphrey v. State, 155 S.W.3d 651, 662 (Tex. App.—Texarkana 2005, pet ref’d).  In that situation, the proponent of the evidence must establish the general subject matter on which the party desired to examine the witness and, if challenged, show on the record why such should be admitted into evidence.  Mumphrey, 155 S.W.3d at 662; LaHood, 171 S.W.3d at 622.

According to appellant, the State introduced evidence of appellant’s narcotics use to rebut the defensive theory that Maria was biased against appellant because of his race.  Appellant argues on appeal that the evidence of Carlos’s narcotics use was relevant and admissible in demonstrating that Maria’s bias against appellant was not attributed to appellant’s narcotics use because she did not exhibit the same bias against her own son.  Appellant contends that the evidence, had it been admitted, would have undermined Maria’s credibility.  Appellant established the general subject matter that he desired to pursue.  See Mumphrey, 155 S.W.3d at 662 (concluding that accused preserved error by establishing general subject matter and indicating on the record that the evidence affected a witness’s bias).  However, appellant made no such explanation as to what the evidence might show or why it should have been admitted.  See LaHood, 171 S.W.3d at 622 (concluding an accused failed to preserve error on complaint that trial court sustained the State’s relevancy objection to evidence of a witness’s most recent drug use). Appellant made no offer of proof or bill of exceptions; rather, after the trial court sustained the State’s relevancy objection, appellant posed no other questions to Maria and passed the witness.  Appellant has failed to preserve error for appellate review.  See id.  We overrule appellant’s sole issue on appeal.

The trial court’s judgment is affirmed.

                                                            /s/                    Kem Thompson Frost

                                                                                    Justice

Panel consists of Justices Anderson, Frost, and Brown.

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

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[1] To protect the privacy of the complainant in this case, we identify her by a pseudonym, “Alison.”