NUMBER 13-11-00370-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOE CECILIO VILLARREAL JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 377th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Vela
Memorandum Opinion by Chief Justice Valdez
Appellant, Joe Cecilio Villarreal Jr., was convicted of murder, see TEX. PENAL
CODE ANN. § 19.02(b)(3) (West 2011), a first-degree felony, and intoxication assault,
see id. § 49.07 (West 2011), a third-degree felony enhanced to a second-degree
felony.1 Appellant was sentenced to sixty years for the murder and ten years for the
1
The jury found that appellant was a repeat felony offender. See TEX. PENAL CODE ANN. § 12.42
(West Supp. 2011).
intoxication assault, and the sentences were ordered to run concurrently. By one issue,
appellant contends that during the punishment phase of the trial, the trial court
improperly prevented his trial counsel from eliciting “background evidence that
illuminates aspects of [his] life helpful to the jury in fairly assessing punishment.” We
affirm.
I. BACKGROUND
During the punishment phase of trial, appellant presented testimony from, among
others, Larry Helms, Russell Cain, and Marilyn Tranel.2 While Helms was testifying, the
State objected, arguing that Helms had not known appellant prior to the criminal
offenses and that appellant was attempting to elicit improper character evidence. The
trial court instructed defense counsel to confine his questioning to Helms’ knowledge of
appellant’s reputation. Defense counsel agreed. The prosecutor further objected,
stating that he did not believe that Helms could testify regarding appellant’s reputation.
The trial court disagreed and stated that if the witness answered that he was aware of
appellant’s reputation, the witness would be allowed to testify regarding appellant’s
reputation.
When asked if he was familiar with appellant’s reputation, Helms replied that it
was “a difficult question to answer” and stated, “He served in our church, came to
church on a regular basis. We greeted each other in the lobby. My interaction with him
seemed to be a strong person of faith.” Appellant’s trial counsel asked Helms how he
came to that conclusion and Helms said, “Him stopping and talking to me coming in and
out of church each week.” Trial counsel asked, “Does [appellant] have a reputation in
2
In the record, this witness is identified as “Marilyn Tramel” and “Marilyn Tramer”; however, the
witness introduced herself as “Marilyn Tranel” during her testimony.
2
your church as being someone there that—someone that is there regularly?” Helms
responded, “Yes, sir.” The trial court interjected, stating that although he would allow
the testimony to be admitted, trial counsel was eliciting improper character evidence.
Defense counsel finished his examination of Helms, passed the witness, and the State
cross-examined him. Defense counsel and the State excused Helms as a witness.
Russell testified next, stating that he had known appellant and his wife for about
a year and a half. The State objected on the basis that Russell had only known the
appellant after the offenses were committed. The prosecutor stated, “I don’t think any
character evidence is relevant in this case.” The trial court replied that Russell could
testify about appellant’s reputation but would not be allowed to testify regarding “specific
acts of character.”
After Russell’s testimony, defense counsel asked for a hearing outside the
presence of the jury, and the trial court complied. During the hearing, defense counsel
stated that he wished to “submit a bill of what and proffer what” he anticipated each
witness would testify about concerning appellant’s reputation. Defense counsel
explained that he was not asking that the trial court admit “specific acts” but that he was
merely requesting admission of “reputation evidence of who he is.” The prosecutor
argued that pursuant to rule 405(a), he objected to any character evidence “from a
witness who does not know the basis of that reputation prior to the day of the offense or
didn’t form their opinion about [appellant] prior to the day of the offense.” See TEX. R.
EVID. 405. The prosecutor agreed that “more leeway” should be given to any witness
who knew appellant prior to the offenses, but that he was objecting to any character
evidence “from a witness who either they didn’t hear about [appellant’s] reputation prior
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to the day of the offense[s] and didn’t form their own opinion of [appellant’s] character
prior to the date of the offense[s].” Defense counsel stated that he did not disagree with
“the [prosecutor’s] interpretation of either rule he referenced” but that he understood the
trial court’s ruling to be that he could not ask the witnesses “anything other than his
reputation as a law-abiding citizen and can’t go past that.” The trial court stated, “I think
that’s what that Rule says. Well, no. No. No. . . . You can’t go past that unless he
brings it up on cross examination.”
Defense counsel objected to the trial court’s limitation on his questioning the
witnesses and “proffered a bill about what each witness [would] testify to.” Defense
counsel then stated the following:
Your Honor, with regard to [Helms] who has already testified, I
would have proffered that he would have talked about [appellant’s]
reputation in the church and reputation for how that affects his ability to
follow the law.
I would also tender to the [trial] court that he was prepared to testify
about [appellant’s] faith and how that causes him—his actions under the
law in the State of Texas. Next, we would call Danny Pena and Danny
Pena is prepared to testify about [appellant’s] community involvement.[3]
....
He’s going to talk about his work ethic, how he helps, his law-
abiding nature is to help those around him and those in need and the
general character of [appellant].
....
He’s not going to talk about any specific act. He’s going to talk
about a general trait, that he’s willing to do whatever is needed for others.
I would next call Cheri Cain. [She] has known [appellant] for twelve years.
She’s familiar with him in the community and his reputation in the
community and she’s going to talk about that.
3
Danny Pena did not testify at the punishment phase of appellant’s trial.
4
The prosecutor stated that he had no objection to Cheri’s testimony.
The trial court reminded defense counsel that he was not allowed to elicit
character evidence and that he could elicit testimony regarding appellant’s reputation.
The trial court also reiterated that defense counsel should not ask about specific acts
and clarified that defense counsel could ask questions regarding what other people
thought about appellant.
II. DISCUSSION
On appeal, appellant does not specify what admissible evidence the trial court
excluded and only generally cites to the hearing held outside the presence of the jury.
Thus, we will assume that appellant complains of the exclusion of the testimony offered
by defense counsel in the hearing outside the jury’s presence. During that hearing,
defense counsel stated that Helms would talk about appellant’s “reputation in the church
and reputation for how that affects his ability to follow the law.” The trial court did not
specifically exclude this evidence, but instead told defense counsel he would be limited
to asking questions regarding appellant’s reputation and would not be allowed to inquire
into specific acts.
The proponent of the evidence must tell the trial court why the evidence is
admissible. Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) (“The basis
for party responsibility is, among other things, Appellate Rule 33.1. It provides that as a
prerequisite to presenting a complaint for appellate review, 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.’ So it is not enough
to tell the judge that evidence is admissible. The proponent, if he is the losing party on
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appeal, must have told the judge why the evidence was admissible.”); Martinez v. State,
91 S.W.3d 331, 335–36 (Tex. Crim. App. 2002) (“Thus, the party complaining 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.’”) (citations omitted).
Here, appellant did not tell the trial court what specific acts Helms would relate during
his testimony. He also did not state the basis for the admission of those specific acts.
Therefore, error, if any, by the trial court in limiting Helm’s testimony regarding specific
acts is not preserved for our review. See Reyna, 168 S.W.3d at 176; Martinez, 91
S.W.3d at 335–36.
However, regarding Helms’ testimony about appellant’s faith, even assuming
without deciding, that the trial court should have allowed such testimony, we conclude
that the error, if any, was harmless because we are convinced beyond a reasonable
doubt that the trial court’s ruling made no contribution to the jury’s determination of
appellant’s sentence. See Smith v. State, 919 S.W.2d 96, 102–103 (Tex. Crim. App.
1996) (plurality opinion) (finding that the error in admitting victim impact evidence during
the punishment phase was harmless beyond a reasonable doubt). The trial court
allowed appellant to present evidence of appellant’s good reputation. During closing
argument, defense counsel stated that appellant was a good person and that everyone
who had encountered appellant had testified that appellant was a good and hard-
working person.
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During its closing argument, the State acknowledged that appellant is a “nice
guy.” The State, however, pointed out that appellant killed his victim after driving his
vehicle with a blood alcohol level of .27. Also, the State presented ample evidence at
the punishment phase of the trial regarding appellant’s criminal history, including that:
(1) appellant had pleaded guilty to felony driving while intoxicated on April 5, 2001 and
was sentenced to three years’ incarceration; (2) appellant was convicted of “driving
while intoxicated subsequent offense” on August 4, 1992 and was placed on community
supervision for a period of five years that was extended for two years; (4) appellant had
pleaded guilty to the felony offense of operating a motor vehicle while intoxicated on
June 26, 1990 and had been sentenced to forty-five days’ confinement with his license
suspended for one year; (5) appellant was indicted by a grand jury on January 20, 1989
for the offense of driving while intoxicated on December 18, 1988; and (6) appellant had
been convicted of driving and operating a motor vehicle in a public place while
intoxicated on February 12, 1987 and on October 12, 1982. Finally, the State told the
jury that it was irrelevant that appellant was a “nice guy” because appellant “continued
to put our community at danger [sic] his entire adult life until he finally, finally he killed
somebody.” The State averred that although appellant probably did not intend to kill
anyone, he “knew it was going to be a possibility when he kept doing the same conduct
over and over and over again.”
The trial court allowed defense counsel to question Helms regarding appellant’s
reputation in the church and his record of attendance. Helms testified that appellant
had “served” in their church and went to church on a regular basis. He further stated
that appellant was “a strong person of faith” and had a reputation of being at church
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regularly. Defense counsel did not ask Helms any questions regarding appellant’s
ability to follow the law, and the trial court did not prevent defense counsel from asking
such a question. Therefore, to the extent that appellant complains on appeal that the
trial court prevented him from asking Helms such a question; we conclude that this
complaint is also without merit. See TEX. R. APP. P. 33.1 (providing that to preserve
error, the defendant must make a timely request or objection and obtain a ruling from
the trial court).
Furthermore, under rule 103, reviewable error “may not be predicated upon a
ruling which admits or excludes evidence unless a substantial right of the party is
affected.” TEX. R. EVID. 103(a). Here, appellant has not shown that the exclusion of
Helms’ testimony regarding appellant’s faith affected a substantial right. See id.
Finding no harm, we overrule appellant’s sole issue.
Finally, as a sub-issue, appellant asserts that the trial court limited Tranel’s
testimony based on the State’s objections, which “interrupted the flow of mitigating
testimony.” Appellant has not presented a clear and concise argument with citation to
appropriate authority in support of this assertion. See id. R. 38.1(i). Therefore, we
conclude that it is inadequately briefed. We overrule appellant’s sub-issue.
III. CONCLUSION
We affirm the trial court’s judgments.
__________________
ROGELIO VALDEZ
Chief Justice
Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
19th day of July, 2012.
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in the Interest of A.R., A.B.r, A.L.A., A.L.A., A.J.R., Children
Combined Opinion