Opinion issued March 22, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00542-CR
____________
DAVID CARL WORMINGTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 1005810
MEMORANDUM OPINION
A jury found appellant, David Carl Wormington, guilty of the offense of solicitation of capital murder (1) and assessed his punishment at confinement for seventy-five years and a $10,000 fine. In two points of error, appellant contends that he was "denied his constitutional right to present a defense" when the trial court erred in excluding evidence of the number of times that the State had used, as an informant, a fellow jail inmate and, alternatively, that the error affected his substantial rights.
We affirm.
Factual and Procedural Background
Appellant filed a pretrial motion to suppress evidence, requesting that "[a]ny oral and/or written statements" of appellant be excluded "since such statements are inadmissible pursuant to Chapter 38 of the Texas Code of Criminal Procedure." (2) At the pretrial hearing on the motion, Gary Johnson, an investigator with the Harris County District Attorney's Office, testified that on October 28, 2004, another investigator in his office asked him to go interview "an informant . . . who potentially had some information about a solicitation of capital murder."
Johnson interviewed M.S., an inmate at the Harris County Jail, who told Johnson that a fellow inmate wanted to have his wife killed. Johnson gave M.S. "a phone number and a name and a story to give to the guy," and told M.S. to have the inmate call Johnson if he was interested. Johnson instructed M.S. not to further proceed on the matter if the inmate was not interested. Later that evening, Johnson received a collect telephone call at his home from the Harris County Jail. Johnson first spoke with M.S., who told Johnson, "David wants to talk to you." M.S. "hollered Dave," and a man came to the phone. That individual, later identified as appellant, introduced himself as "David" and "contracted with [Johnson] to kill his wife."
Johnson explained that because appellant had a pending charge against him, the permissible scope of his conversation was limited. Appellant "did all the talking," and Johnson did not ask appellant any questions. In order to confirm his identity, Johnson arranged for another telephone conversation with appellant. Observing the pay phone at the jail, a Harris County Sheriff's deputy confirmed that appellant in fact used the phone to speak with Johnson. In their second conversation, appellant gave Johnson instructions "on how to kill and where to kill and when to kill" his wife. Johnson explained that "all [Johnson] did was listen" and "didn't really elicit anything."
On cross-examination, Johnson testified that M.S. "is just a petty thief" and calls Johnson "every time he goes to jail." M.S. had previously contacted Johnson "[p]robably five or six times" with information regarding an inmate. In this case, M.S. initially contacted Hal Kennedy, a Houston Police Department homicide detective, who then contacted Johnson, who met with M.S. at the jail. When asked by appellant's counsel what he told M.S. on how to "proceed with this solicitation," the following exchange occurred,
[Johnson]: Yeah. I told him I said, "don't approach the subject. If he brings it up again, just tell him, you know, you don't want any part, but you will give him a number if he wants to talk to the guy, he will set up the call."
[Appellant's Counsel]: Okay. Did you tell [M.S.] kind of what story to tell him on how to come up with the solicitation case?
[Johnson]: Actually, that was all done. [M.S.] also told him that I was his half brother. And [M.S.] is black. So, I hadn't--that was all done before I got involved.
Johnson explained that M.S. was in custody for stealing "two pork chops and a bag of chips." In exchange for his cooperation in appellant's case, M.S. was released from jail "four or five days early." At the conclusion of the pretrial hearing, the trial court denied appellant's motion to suppress.
During the trial, Johnson further testified that, during their first telephone conversation, appellant told Johnson where he lived and how he wanted his wife killed. When Johnson asked appellant if anyone other than his wife would be at home, appellant explained that he "wanted it to look like an accident." Appellant initially suggested that Johnson murder his wife inside the home, but then suggested that Johnson drown her "in an old dirty pool that hadn't been cleaned in several years and she had been talking about cleaning it, so [Johnson] could drown her in there and it would look cool." Appellant provided Johnson with directions to the home and told Johnson his wife's daily schedule, instructing Johnson that he wanted his wife killed before his daughter returned home from school, so that "she wouldn't find her mother floating in the swimming pool." Appellant was to pay Johnson "$10,000 as soon as [appellant] got out" of jail. Toward the end of their conversation, Johnson asked appellant, "Are you sure this is what you want? Because you and I probably won't talk again. And you can't pull out after this." Appellant responded, "I don't want to pull out. Do it." (3)Erroneously Excluded Evidence
In his first point of error, appellant argues that he was "denied his constitutional right to present a defense" because the trial court erroneously excluded evidence "as to the number of times M.S. had worked for Johnson as an 'inside the jail house snitch.'" Appellant notes that, during the charge conference, he attempted to raise the defense of entrapment. (4) However, in order to do so, appellant had to prove that M.S. "was acting as an agent of the State." He contends that the trial court's exclusion of the evidence prevented him from presenting his entrapment defense and is subject to a constitutional harmless error review. See Tex. R. App. P. 44.2(a). In his second point of error, appellant asserts that, assuming that the trial court's error did not "rise to the level of constitutional error," it was an error that affected his substantial rights. See id. 44.2(b).
During the trial, appellant's counsel questioned Johnson as to the number of times that M.S. had worked for Johnson as an "inside-the-jail-house snitch." The State objected, asserting that the evidence was not relevant. Appellant offered no response to the objection, and the trial court sustained the objection. On appeal, appellant contends that because he "was not allowed to introduce the number of times M.S. had been used by the State, [a]ppellant could not prove M.S., due to his experience, was capable of inducing, enticing or working [a]ppellant into such a frenzy over [a]ppellant's wife's refusal to bond him out [of jail] that [a]ppellant would not talk 'trash' when speaking to Officer Johnson on the phone."
Error in the exclusion of evidence may not be urged unless the proponent perfected an offer of proof or a bill of exceptions. Tex. R. Evid. 103(a)(2); Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999). Absent a showing of what such testimony would have been, or an offer of a statement concerning what the excluded evidence would show, nothing is presented for review. Tex. R. Evid. 103(a)(2); Guidry, 9 S.W.3d at 153. Furthermore, the record must show that the party "stated the grounds for the ruling that [he] sought from the trial court with sufficient specificity to make the trial court aware of the complaint." Tex. R. App. P. 33.1(a)(1); Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005). "[T]he complaining party on appeal (whether it be the State or the defendant) about a trial court's admission, exclusion, or suppression of evidence must, at the earliest opportunity, have done 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." Martinez v. State, 91 S.W.3d 331, 335-36 (Tex. Crim. App. 2002) (internal quotations omitted). Thus, the proponent of excluded evidence must inform the trial court why the evidence is admissible. See Reyna, 168 S.W.3d at 177.
Here, appellant did not make an offer of proof after the trial court sustained the State's relevancy objection. Nor did he inform the trial court that the evidence was necessary to establish the defense of entrapment or argue that the exclusion of the evidence violated his constitutional right to present a defense. In fact, appellant offered no response to the State's relevancy objection, and he did not mention his entrapment defense to the trial court until the charge conference. Although Johnson had previously testified at the hearing on the motion to suppress that M.S. had contacted him "[p]robably five or six times," appellant never informed the trial court that the testimony was relevant to the defense of entrapment. Accordingly, we hold that appellant has preserved nothing for our review.
We overrule appellant's first and second points of error.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
Do not publish. Tex. R. App. P. 47.2(b).
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