Jason Eugene Arnold v. State

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-18-00022-CR
___________________________

JASON EUGENE ARNOLD, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 396th District Court
Tarrant County, Texas
Trial Court No. 1424463D

Before Gabriel, Kerr, and Birdwell, JJ.
Memorandum Opinion by Justice Gabriel
 MEMORANDUM OPINION

Appellant Jason Eugene Arnold appeals from his conviction for the second-

degree felony offense of sexual assault for which he received a ten-year, probated

sentence. See Tex. Penal Code Ann. § 22.011(a)(1). He argues that the trial court

abused its discretion by limiting his cross-examination of the complainant, which he

asserts violated his constitutional confrontation rights, and by excluding portions of

his custodial-interrogation video, which he contends violated his constitutional rights

to due process and evidentiary rule 106. Arnold’s arguments regarding the cross-

examination limits either were not preserved or did not violate the confrontation

clause. Arnold did not raise his constitutional arguments regarding the video in the

trial court, and the trial court did not abuse its discretion under the rules of evidence

by excluding the redacted portions of the video. Accordingly, we affirm the trial

court’s judgment.

I. BACKGROUND

A. THE SEXUAL ASSAULT1

In August 2015, Arnold’s adult stepdaughter Angela2 stayed at her mother and

Arnold’s house. She woke up that night with Arnold naked and on top of her with

his penis in her vagina. Angela immediately ran to her mother’s room, woke her up,

1
Arnold does not attack the sufficiency of the evidence to support his
conviction; thus, we briefly recount the facts to put his evidentiary complaints in
context.
2
This is an alias. See Tex. R. App. P. 9.8 cmt., 9.10(a)(3).

2
and told her what had happened. Angela then called her boyfriend Paul3 to come pick

her up. When he arrived and Angela told him what Arnold had done, Paul

immediately called the police. Angela submitted to a sexual-assault exam and several

vaginal swabs were taken. Sperm was detected on the swabs with a mixed profile that

included a major contributor and “at least one minor contributor.” Arnold could not

be excluded as the major contributor of the Y chromosome DNA found in the

samples;4 but Arnold was excluded as a minor contributor of the Y chromosome

DNA. Angela’s DNA was found on Arnold’s penis after officers obtained a penile

swab.

B. THE TRIAL

A grand jury indicted Arnold for sexual assault. Before trial, the State notified

Arnold that Angela had been arrested and convicted of theft in 2014 and had been

arrested for misdemeanor driving while intoxicated (DWI) approximately three

months before Arnold’s trial date. At a hearing outside the jury’s presence shortly

before opening statements were made, the State sought to exclude evidence of the

pending DWI charge. Arnold argued that this evidence should be admitted if “there’s

been any promises or concessions made to [Angela] regarding that case” because she

would be in a “vulnerable relationship” with the State. The State represented that it

had made “[n]o deals, no promises” with Angela “about any pending matters she may

Again, this is an alias.
3

However, 99.937% of the population could be excluded.
4

3
have.” The trial court implicitly excluded the evidence, noting that “if her DWI is still

pending, that’s a pending offense” and that “there’s been representation by the

prosecutor that there’s no deals . . . made.” See Tex. R. App. P. 33.1(a)(2)(A).

At an additional hearing outside the jury’s presence before opening statements

to the jury, Arnold questioned Angela in an offer of proof regarding her previous

sexual conduct. See Tex. R. Evid. 103(c), 412. Angela testified that she had had

unprotected sex with Paul approximately three days before Arnold sexually assaulted

her. She further testified that her mother and Arnold had sent her to drug

rehabilitation for her heroin addiction “three or four” times before she completely

quit using the drug in February 2015. Arnold then requested that Angela’s previous

sexual history be admitted under the rules of evidence to explain the DNA evidence,

specifically the unidentified sperm found in Angela’s vagina during the sexual-assault

exam. See Tex. R. Evid. 412(b)(2)(A). The trial court ruled that it would allow Arnold

to question Angela about having sex with Paul three days before the assault5 but that

Arnold could not question Angela about her prior heroin addiction, citing rule 608(b).

See Tex. R. Evid. 608(b).

During Angela’s subsequent trial testimony, she stated that she previously had

“moved to Michigan with my real dad” when she was eighteen. Arnold sought to

cross-examine her about the reasons she had moved to Michigan. The State objected

that such testimony was not relevant, and Arnold responded that Angela had “opened

Arnold did so during Angela’s testimony before the jury.
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4
the door” to such evidence. The trial court sustained the State’s objection and

allowed Arnold to make an offer of proof outside the presence of the jury. During

Arnold’s offer, Angela testified that her mother and Arnold had forced her to go to

Michigan to live with her father for the final six weeks of her senior year of high

school. Angela agreed that this caused her to be angry with Arnold, but she stated, “It

was actually nice to see my dad. It wasn’t good for me, but it was nice to go up

there.” Angela denied that she was sent to Michigan because of a drug problem. At

the end of the hearing, the trial court stated that the State’s objection “remains

sustained.”

The State also introduced into evidence a portion of Arnold’s videotaped

custodial interrogation, having redacted Arnold’s references to Angela’s past heroin

use, to her stays at drug-rehabilitation clinics, and to the fact that Arnold had not

allowed her to invite “someone else” over to his house the night of the alleged assault.

Arnold objected to the redactions and argued that the entire video should be

considered by the jury under the rules of evidence because Arnold’s refusal to let

Angela have a friend over close in time to the sexual-assault allegations showed her

motive to fabricate:

Under Texas Rule of Evidence 106, remainder of or related writings or
recorded statements, if a party introduces all or part of a writing or
recorded statement, the adverse party may introduce at that time any
other part of any other writing or recorded statement that in fairness
ought to be considered at the same time.

....

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 And I think in - - under Rule 106, in fairness, the jury should hear
the whole statement because Mr. Arnold is telling the detective that
anytime [Angela] comes over, she’s a drama factory, it’s a major
malfunction, that there’s always problems. He’s trying to provide some
context to the story to, you know, what happened.

He discusses the incident of how he claims - - Mr. Arnold claims
that to her he’s always the asshole, excuse my language, but that’s what
he said on the tape, because of putting his foot down on Friday night to
not allow someone else to come over to the house, which could go to
motive or bias against Mr. Arnold. He talks about how . . . [Angela] just
isn’t happy with her life and the choices that she’s made.

It puts a lot of the things into context, Judge. And I think under
Rule 106, I think that we are entitled to publish the entirety of the
statement. . . . I think it would also leave a false impression with the jury
that this is maybe the entire statement. . . . But we - - at the very least we
should be able to publish the entirety of it.

See Tex. R. Evid. 106. The trial court overruled Arnold’s objection. Arnold then

asked that the unredacted version be admitted as part of the appellate record “because

we’re being denied the opportunity to show bias and motive against Mr. Arnold,

which is always a relevant matter for cross-examination.” See Tex. R. Evid. 404(b)(2)

(providing evidence of person’s extraneous bad acts, while generally inadmissible to

prove character conformity, may be admissible to prove motive or intent). The trial

court admitted the unredacted video for purposes of our review. The redacted video

later was admitted into evidence during the investigating police officer’s testimony,

and Arnold unsuccessfully renewed his “previous objections.”

During Angela’s testimony, the State objected to Arnold’s cross-examination

about whether Arnold had refused to let her have “someone” over. The State

6
explained that Arnold’s statements on the video about this incident had been redacted

“because it’s implying that [Angela] wants to invite somebody over to have a sexual

relationship with them and [Arnold] wouldn’t let her.” The trial court ruled that

Arnold could question Angela about why she would have been mad at him but could

not “argue anything else.” In response to Arnold’s question concerning whether

Angela wanted to invite someone over late that night, she testified that she could not

remember if the incident had occurred, but if it had, she identified which male friend

it would have been. Arnold did not question Angela further about the incident.

Angela agreed, during cross-examination, that she and Arnold never had a good

relationship and that she “never really cared for him.”

The jury found Arnold guilty of sexual assault. After a punishment hearing, the

jury assessed his punishment at ten years’ confinement with a $10,000 fine and

recommended that the trial court suspend imposition of the sentence and place him

on community supervision and that the payment of the assessed fine be ordered as a

condition of community supervision. See Tex. Code Crim. Proc. Ann. art. 42A.055(a).

The trial court followed the jury’s recommendation, suspending imposition of the ten-

year sentence (but not the payment of the fine) and placing Arnold on community

supervision for ten years.

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 II. THE CONFRONTATION CLAUSE

Arnold argues in his first issue that the trial court abused its discretion by not

allowing him to cross-examine Angela about her motive to fabricate6—anger about

Arnold and her mother forcing Angela to move to Michigan—and by refusing his

request to question Angela about her then pending DWI charge. He substantively

bases these arguments solely on the Confrontation Clause found in both the United

States and Texas Constitutions. U.S. Const. amend. VI; Tex. Const. art. I, § 10. We

recognize that in one sentence of his summary of the argument of his brief, Arnold

asserts that the trial court’s refusal to allow him to explore Angela’s motive to

fabricate violated “his State and Federal Constitutional rights and the Texas Rules of

Evidence.” [Emphasis added.] But the substance of his argument pertaining to this

issue addresses only the Confrontation Clause, failing to cite a rule of evidence as

authority and advancing no argument founded on the evidentiary rules. We address

this issue as Arnold briefed it—under the Confrontation Clause.7 See Tex. R. App. P.

38.1(i); see, e.g., Buntion v. State, 482 S.W.3d 58, 70 n.4 (Tex. Crim. App. 2016)

6
On appeal, Arnold asserts that these motives arose from her anger at Arnold
for forcing her to go to drug rehab in Michigan at the end of her senior year of high
school, which he characterizes as a “long-festering grudge.” Arnold argues that the
exclusion of this evidence left the jury “with no explanation for why [Angela] would
have made such an allegation.”
7
Arnold does not argue that the Texas Constitution provides greater
protections than does the United States Constitution; thus, his first issue arises solely
under the federal confrontation right. See Aldrich v. State, 928 S.W.2d 558, 560 (Tex.
Crim. App. 1996).

8
(addressing issue as substantively briefed and not as stated in issues-presented portion

of brief); Merrick v. State, Nos. 02-17-00035-CR, 02-17-00036-CR, 2018 WL 651375, at

*4 (Tex. App.—Fort Worth Feb. 2, 2018, pet. ref’d) (“[W]e will address his issues as

he substantively briefed them . . . .”).

To preserve a complaint for our review, a party must have presented to the trial

court a timely request, objection, or motion stating the specific grounds, if not

apparent from the context, for the desired ruling.8 See Tex. R. App. P. 33.1(a)(1)(A);

Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). While preservation is

not a hyper-technical inquiry, the party seeking admission of excluded evidence must

clearly tell the trial judge what he wants and why he is arguably entitled to it at a time

when the judge can address the issue. See Golliday v. State, 560 S.W.3d 664, 670 (Tex.

Crim. App. 2018); Merrick, 2018 WL 651375, at *7. The complaint made on appeal

must comport with the complaint made in the trial court. See Clark v. State,

365 S.W.3d 333, 339 (Tex. Crim. App. 2012).

In response to the State’s relevance objection to evidence regarding Angela’s

forced move to Michigan, Arnold merely made a “general appeal to a proffer’s

relevance” based on his assertion that Angela had raised the issue during her

8
Even though the State does not raise preservation on appeal, we must
independently review the record because preservation is a systemic requirement. See
Darcy v. State, 488 S.W.3d 325, 327–28 (Tex. Crim. App. 2016).

9
testimony—she had “opened the door.”9 Golliday, 560 S.W.3d at 671. Even though

Arnold made an offer of proof of the excluded testimony, Arnold’s general relevance

argument was insufficient to present his Confrontation Clause argument to the trial

court and thereby preserve it for our review. See id. at 668–69 (relying on Reyna v.

State, 168 S.W.3d 173, 175, 179 (Tex. Crim. App. 2005)).

Regarding admission of Angela’s pending DWI, Arnold argued to the trial

court that the evidence was admissible based on her “vulnerable relationship” with

the State and pointed to “Davis versus Alaska as [his] legal authority regarding being

able to question about the DWI.” Davis is a well-known Supreme Court case holding

that the refusal to allow a defendant to cross-examine a State’s witness about his

probation status violated his constitutional right to confront the witnesses against

him. Davis v. Alaska, 415 U.S. 308, 316–18 (1974). We conclude that this argument

sufficiently apprised the trial court that he sought admission of the DWI evidence

under the Confrontation Clause. See Ford v. State, 305 S.W.3d 530, 533 n.16 (Tex.

Crim. App. 2009); Clarke v. State, 270 S.W.3d 573, 578–80, 582–83 (Tex. Crim. App.

2008); Turner v. State, 413 S.W.3d 442, 449 (Tex. App.—Fort Worth 2012, no pet.).

Even so, we review the trial court’s exclusion for an abuse of discretion,

recognizing that a trial judge retains wide latitude to impose reasonable limits on

cross-examination. See Johnson v. State, 433 S.W.3d 546, 555 (Tex. Crim. App. 2014).

9
Angela testified that she did not attend her mother’s wedding to Arnold
because she was living in Michigan at the time.

10
To establish that Angela’s DWI charge was relevant and admissible, Arnold was

required to establish “a logical connection between the evidence suggesting bias or

motive”—the pending DWI charge—and Angela’s testimony. Irby v. State,

327 S.W.3d 138, 152 (Tex. Crim. App. 2010); see Carpenter v. State, 979 S.W.2d 633,

634–35 (Tex. Crim. App. 1998); Pritchard v. State, No. 2-08-137-CR, 2009 WL 112717,

at *5 (Tex. App.—Fort Worth Jan. 15, 2009, pet. ref’d) (mem. op., not designated for

publication). Without this causal nexus, a pending yet unrelated charge will not ipso

facto create a vulnerable relationship allowing impeachment. See Irby, 327 S.W.3d at

152; Carpenter, 979 S.W.2d at 634 n.4; Ramirez v. State, No. 08-11-00298-CR, 2015 WL

5050134, at *4–5 (Tex. App.—El Paso Aug. 26, 2015, no pet.) (not designated for

publication).

Arnold did not establish a logical connection between the pending charge and

Angela’s testimony and wholly failed to respond to the State’s assertion that there was

no vulnerable relationship potentially causing Angela to testify favorably for the State

in exchange for favorable treatment in her pending DWI case. Based on this record,

we cannot conclude that the trial court abused its discretion by excluding this

evidence and thereby limiting Arnold’s cross-examination of Angela regarding the

pending DWI. See Carpenter, 979 S.W.2d at 634–35 & nn.4–5; Gilmore v. State,

323 S.W.3d 250, 265–66 (Tex. App.—Texarkana 2010, pet. ref’d); Pritchard, 2009 WL

112717, at *5.

We overrule Arnold’s first issue.

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 III. THE REDACTED INTERROGATION VIDEO

In his second issue, Arnold contends that that the trial court’s exclusion of the

redacted portions of his custodial-interrogation video was an abuse of discretion and

violated rule 106 and his federal and state due-process rights.10 See U.S. Const. amend.

XIV; Tex. Const. art. I, § 19; Tex. R. Evid. 106. We review the trial court’s exclusion

of evidence for an abuse of discretion. See Gonzalez v. State, 544 S.W.3d 363, 370 (Tex.

Crim. App. 2018).

We begin, as we must, with preservation. At no point while seeking admission

of the redacted portions did Arnold argue that his due-process rights would be

violated by their exclusion. Arnold clearly limited his trial arguments to rule 106.

Thus, we will address this issue under that rule. See Tex. R. App. P. 33.1(a)(1)(A);

Golliday, 560 S.W.3d at 670–71.

At trial, Arnold argued that the entirety of the video should be admitted under

rule 106 and that its exclusion denied him the opportunity to explore Angela’s motive

or bias based on Arnold’s refusal to let her have her friend come over near the time of

the sexual assault.11 The trial court overruled Arnold’s proffer and stated that

Arnold’s statements about the refused late-night visitor were “kind of self-serving

As with his first issue, Arnold does not assert that the Texas Constitution
10

provides greater due-process protections.
11
In his brief, Arnold seems to also argue that the redacted portions dealing
with Angela’s drug-rehabilitation stays should have been admitted; however, Arnold
did not raise this portion of his statement in seeking admission under rule 106. See
Tex. R. App. P. 33.1(a).

12
[because Angela] said, yes, we had a disagreement and now [Arnold is] going into it

also [in the redacted portion of the video].”

Indeed, Arnold’s statements about Angela being denied her request to have a

male friend come over to Arnold’s house were self-serving declarations that were

inadmissible as proof of the fact asserted. See Allridge v. State, 762 S.W.2d 146, 152

(Tex. Crim. App. 1988); Lopez v. State, No. 02-16-00310-CR, 2018 WL 359957, at *2

(Tex. App.—Fort Worth Jan. 11, 2018, pet. ref’d) (mem. op., not designated for

publication). The redacted video did not give the jury a false impression, and Arnold

failed to establish why the redacted portions were necessary for context; thus, the trial

court did abuse its discretion by overruling Arnold’s request under rule 106. Accord

United States v. Branch, 91 F.3d 699, 728 (5th Cir. 1996). See generally Elmore v. State,

116 S.W.3d 801, 807 (Tex. App.—Fort Worth 2003, pets. ref’d) (explaining purpose

of rule 106 is to avoid confusion, distortion, or false impression); Gilmore v. State,

744 S.W.2d 630, 631 (Tex. App.—Dallas 1987, pet. ref’d) (same).

But even if it were an abuse of discretion to exclude this discrete portion of the

video, we would disregard the error because it did not affect Arnold’s substantial

rights. See Tex. R. App. P. 44.2(b). Angela testified during cross-examination that her

relationship with Arnold was fractious and although she stated she did not remember

asking Arnold to have a friend over late at night,12 she was able to name which friend

12
Contrary to Arnold’s assertion in his brief, Angela did not deny that the
disagreement occurred.

13
it would have been. See Womble v. State, 618 S.W.2d 59, 62 (Tex. Crim. App. [Panel

Op.] 1981); accord United States v. Abroms, 947 F.2d 1241, 1250 (5th Cir. 1991) (op. on

reh’g) (applying rule 106 to exclusion of recording and finding no abuse of discretion

or harm). We overrule issue two.

IV. CONCLUSION

Arnold did not raise a constitutional, confrontation objection to the exclusion

of his cross-examination about why Angela moved to Michigan; therefore, he has not

preserved this issue for our review. He sufficiently raised an objection based on the

Confrontation Clause to the exclusion of the evidence that Angela had a pending

DWI charge. But because he failed to establish the required causal connection that

would render such evidence relevant, we cannot conclude that the trial court abused

its discretion. Finally, the trial court did not abuse its discretion by excluding an

inadmissible, redacted portion of his recorded statement even though Arnold sought

to admit it to avoid a false impression to the jury. Accordingly, we affirm the trial

court’s judgment. See Tex. R. App. P. 43.2(a).

/s/ Lee Gabriel

Lee Gabriel
Justice

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

Delivered: January 10, 2019

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