Joe Briseno v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00029-CR
JOE BRISENO APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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A jury found Appellant Joe Briseno guilty of aggravated assault with a
deadly weapon, and after he pleaded true to the enhancement allegation, the jury
assessed punishment at twenty-five years’ imprisonment. The trial court
sentenced him accordingly. In a single point, Briseno contends that the trial court
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See Tex. R. App. P. 47.4.
abused its discretion by excluding evidence of a State’s witness’s prior bad acts.
We will affirm.
Monica Henderson knew Briseno and his wife Melissa. Henderson was at
home with her children watching TV when Briseno entered her home
unannounced, carrying a gun in his hand. Briseno pointed the gun at Henderson
and questioned her regarding his wife Melissa’s whereabouts. When Henderson
denied knowing Melissa’s location, Briseno pointed the gun at Henderson’s
seven-year-old son sitting beside her. Briseno continued to threaten Henderson
and her children as he searched her home, looking for his wife. Approximately
thirty minutes after entering Henderson’s home, Briseno told Henderson not to
talk to the police about the incident, threatening to send his “homeboys [to] finish
the job” if she did, and he left. Henderson later reported the incident to police
and testified as a witness for the State at trial.
Briseno argues that the trial court abused its discretion by not allowing him
to impeach Henderson on cross-examination by asking her whether she had
gone to Briseno’s residence after the incident to buy marijuana. Briseno also
argues that by disallowing this line of questioning, the trial court denied him the
right to confront his accuser.
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Landers v. State, 402 S.W.3d
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252, 254 (Tex. Crim. App. 2013); Sample v. State, 405 S.W.3d 295, 300 (Tex.
App.—Fort Worth 2013, pet. ref’d). A complaint that the trial court abused its
discretion by excluding impeachment evidence may not be pursued on appeal
unless the proponent perfected an offer of proof or a bill of exception. See Tex.
R. App. P. 33.2; Tex. R. Evid. 103(a)(2); Guidry v. State, 9 S.W.3d 133, 153
(Tex. Crim. App. 1999), cert. denied, 531 U.S. 837 (2000). A reviewing court
should not address the merits of an issue that has not been preserved for appeal.
Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh’g);
Sample, 405 S.W.3d at 300.
Prior to trial, the State filed a motion in limine seeking to have the trial court
rule outside the jury’s presence on the admission of any evidence of a State’s
witness’s bad acts. Defense counsel received a copy of the motion in limine, and
the trial court granted the motion with no objection from defense counsel. At trial,
defense counsel questioned Henderson about the number of times she had been
to Briseno’s house and the nature of her visits. Henderson testified that she had
been to Briseno’s house several times in order to buy marijuana from him. The
trial court sustained the State’s objection when defense counsel asked
Henderson whether she had returned to his house after the incident to buy
marijuana. Defense counsel did not identify for the record what the excluded
testimony would have been, nor did she object that the excluded testimony would
have been admissible to impeach Henderson. See Tex. R. App. P. 33.1(a)(1);
Tex. R. Evid. 103(a)(2). Defense counsel also did not object that by excluding
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this line of questioning, the trial court denied Briseno the right to confront his
accuser. See Parker v. State, No. 02-01-00275-CR, 2003 WL 21357571, at *1
(Tex. App.—Fort Worth June 12, 2003, no pet.) (mem. op., not designated for
publication). Accordingly, we must conclude that Briseno has not preserved his
complaint for appeal. See Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103(a)(2);
Guidry, 9 S.W.3d at 153. We overrule Briseno’s sole point.
Having overruled Briseno’s point, we affirm the trial court’s judgment.
PER CURIAM
PANEL: WALKER, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 29, 2014
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