Opinion issued October 7, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00859-CR
JUAN ALVAREZ MUNOZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 935224
MEMORANDUM OPINION
A jury found Juan Alvarez Munoz guilty of aggravated assault with a deadly weapon and assessed punishment at four years’ confinement and a $2000 fine, both suspended. In a single issue, Munoz contends that the trial court improperly excluded testimony that he did not have a weapon. We affirm.
Background
On January 6, 2003, Munoz and his wife, Celeste Munoz Rodriguez, engaged in an argument. Munoz held a gun to Rodriguez’s head and threatened to shoot her if she called 911. Rodriguez did not testify at trial, and thus the State presented hearsay testimony admitted under the excited utterance exception to the hearsay rule. Tex. R. Evid. 803(2). The State offered Rodriguez’s 911 tapes of the disturbance call containing Rodriguez’s statement that her husband had a gun. The apartment manager and police officers also testified that Rodriquez had told them that her husband had a gun.
During trial, defense counsel called Sara Greene as a witness. Greene interviewed Rodriguez at the Harris County District Attorney’s office. Defense counsel asked whether Rodriguez had told Greene during that interview that Munoz did not have a gun when they had argued. The State objected to the question as hearsay. In a hearing outside the presence of the jury, defense counsel urged that the trial court should admit Greene’s testimony to impeach Rodriquez’s statements to police that her husband had a gun. The defense sought to introduce Greene’s testimony under three different theories. During the hearing, the State asserted that, if the court admitted Greene’s testimony, the State could introduce Rodriguez’s written statement to Officer Resendez immediately after the incident, in which she stated that Munoz had a gun. The written statement had not been introduced into evidence. The court indicated that it would admit Rodriguez’s written statement to police that Munoz had a gun if it allowed Greene’s testimony that Rodriquez said Munoz did not have a gun. At that point, defense counsel withdrew the question:
[The State]:Your Honor I would argue if you find that this is part of the same transaction then also her written statement that she gave at the time should also come in.
[Court]: What do you think [defense counsel]?
[Defense]:I’ll withdraw it Your Honor.
[Court]:Okay. Do you have any other questions?
[Defense]:If The Court agrees with the State on that point –
[Court]:Well if I allow this statement in then I feel that I would have to let the written statement in. I do agree with that.
[Defense]:. . . I’ll withdraw the questioning of this witness.
Exclusion of Testimony
Munoz contends that the trial court erred in excluding Greene’s testimony regarding statements Rodriquez made during the interview at the district attorney’s office. We review a trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); Roberts v. State, 29 S.W.3d 596, 600 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). As a prerequisite to presenting a complaint for appellate review, the record must show that counsel made the complaint to the trial court by a timely request, objection, or motion, and that the trial court ruled on the request, objection, or motion, either expressly or implicitly. Tex. R. App. P. 33.1.
The State asserts that Munoz waived error. Here, the trial court sustained the State’s objections to admission of the testimony under Rules of Evidence 806 (attacking & supporting credibility of declarant) and 803(24) (statement against interest). The trial court, however, offered to admit the hearsay statement on a third basis. The court explained that if it admitted one hearsay statement, however, it would admit another that the State sought to admit. The defense then made the strategic decision to withdraw the question and to discontinue questioning of this witness. Because the trial court offered to admit the statement on another evidentiary basis, and counsel then chose to withdraw his question, we hold that Munoz presents nothing for appellate review. See Tex. R. App. P. 33.1(a); see Napier v. State, 887 S.W.2d 265, 266–67 (Tex. App.—Beaumont 1994, no pet.) (holding error was waived because counsel withdrew question before court sustained State’s objection); see also United States v. Tiger, 223 F.3d 811, 813–14 (8th Cir. 2000) (holding that district court did not rule on matter before defense counsel withdrew his question; therefore, counsel preserved nothing for review).
Munoz also contends that exclusion of the statement violated the Confrontation Clause of the United States Constitution. U.S. Const. amend VI. We find no merit Munoz’s contention because defense counsel made the strategic decision to withdraw the line of questioning. Cf. Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986 (holding any error in admission of hearsay is harmless if fact to which hearsay relates is sufficiently proved by other competent and unobjected to evidence).
Conclusion
We affirm the trial court’s judgment.
Jane Bland
Justice
Panel consists of Justices Taft, Jennings, and Bland.
Do not publish. Tex. R. App. P. 47.2(b).