ACCEPTED
06-14-00133-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
2/10/2015 9:44:23 AM
DEBBIE AUTREY
CLERK
No. 06-14-00133-CR
FILED IN
6th COURT OF APPEALS
IN THE TEXARKANA, TEXAS
2/10/2015 9:44:23 AM
COURT OF APPEALS DEBBIE AUTREY
Clerk
FOR THE SIXTH SUPREME
JUDICIAL DISTRICT OF TEXAS
TEXARKANA
DAVID MICHAEL DOLLINS,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appealed in Cause No. F-8840
8th Judicial District Court of Franklin County, Texas
BRIEF FOR APPELLEE
1
By:/s/ Nicholas C. Harrison
Nicholas C. Harrison
Assistant District Attorney
State Bar No 24062768
P.O. Box 882
Sulphur Springs, Texas 75483
(903) 885-0641
2
TABLE OF CONTENTS
TABLE OF CONTENTS 3
TABLE OF AUTHORITIES 4
SUMMARY OF THE ARGUMENT 5
ARGUMENT AND AUTHORITIES 5
STANDARD OF REVIEW 5
I. Appellant failed to preserve error, if any 5
PRAYER FOR RELIEF 7
CERTIFICATE OF SERVICE 9
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TABLE OF AUTHORITIES
Cases
Tillman v. State, 354 S.W.3d 425, 435 (Tex.Crim.App.2011) ...................................5
Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App.2010) .................................5
Virts v. State, 739 S.W.2d 25 (Tex.Crim.App.1987) .................................................6
Mumphrey v. State, 155 S.W.3d 651 (Tex.App.- Texarkana 2005) ...........................6
Rules
TRE 103; ....................................................................................................................6
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SUMMARY OF THE ARGUMENT
Appellant failed to preserve any error regarding the cross-examination of Deputy
Ricks.
ARGUMENT AND AUTHORITIES
Appellant presents a sole issue for review: Did the trial court err in prohibiting
Appellant from cross-examining Deputy Ricks about whether she obtained a
written statement from the Victim.
STANDARD OF REVIEW
Matters concerning the admission of evidence are reviewed for an abuse of
discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex.Crim.App.2011). A trial
court abuses its discretion only if its decision “lies outside the zone of reasonable
disagreement.” Martinez v. State, 327 S.W.3d 727,736 (Tex.Crim.App.2010).
I. Appellant failed to preserve error, if any.
Counsel for Appellant asked Deputy Ricks, “Now, did you ask [the Victim]
for a written statement?” The State objected to relevance and the trial court
sustained the objection. Counsel for Appellant then moved on to the next issue,
asking whether Deputy Ricks recovered a knife from the crime scene. (R.R. Vol. 4
pg 50).
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Texas Rule of Evidence 103(a)(2) requires a party to make known to the
court by offer, the substance of excluded testimony, unless the substance of the
testimony is apparent from the context. Appellant failed to make an offer of proof,
and the substance of Appellant’s intended line of questioning cannot be discerned
from the record.
In the context of excluded cross-examination, Texas law recognizes two
categories: situations in which a formal offer of proof is necessary to preserve error
and situations in which less than a formal offer of proof will preserve error. Virts v.
State, 739 S.W.2d 25 (Tex. Crim. App. 1987). When a defendant seeks to elicit
certain, specific responses from a state’s witness but is precluded by the trial court
from doing so, a formal offer of proof is required. But when a defendant is not
permitted to question a state’s witness about a certain general subject that might
affect the witness’ credibility, less than a formal offer of proof will preserve error.
Virts. This law was also applied by this Court of Appeals in Mumphrey v. State,
155 S.W.3d 651 (Tex.App.-Texarkana 2005).
In this case, Appellant was seeking to elicit certain, specific responses from
Deputy Ricks. Appellant asserts the following in his brief:
“Here, the defense strategy was to develop a reasonable doubt regarding two
elements of the offense required by the indictment and Court’s Charge. First,
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that the arresting officer, Deputy Ricks, did not have probable cause to arrest
Appellant. Second, that the probable cause to arrest was sufficient only for
misdemeanor Assault, not felony Aggravated Assault, by eliminating the
probable cause that a knife was used or exhibited during the Assault.”
(Appellant’s Brief p. 15)
Appellant was seeking to elicit facts that would diminish probable cause as
to the arrest for Aggravated Assault, specifically whether the Deputy took a written
statement from the Victim. Appellant was not assailing Deputy Ricks’ credibility
in general. Appellant’s somewhat complex two-pronged purpose behind the
prohibited cross-examination is further proof that the substance of the excluded
testimony was not apparent from context. It should also be noted that the “general
subject” of probable cause was permitted to be fully developed by Appellant in the
subsequent line of questioning. (R.R. Vol. 4 pg 51-53).
Because Appellant did not make an offer of proof of the questions Appellant
would have asked and the answers expected had such questioning in the presence
of the jury been permitted, Appellant failed to preserve error. Virts, 739 S.W.2d at
29.
PRAYER FOR RELIEF
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The State requests that this Court AFFIRM Appellant’s conviction.
By:/s/ Nicholas C. Harrison
Nicholas C. Harrison
Assistant District Attorney
State Bar No 24062768
P.O. Box 882
Sulphur Springs, Texas 75483
(903) 885-0641
8
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
instrument was forwarded to counsel for Appellant, Martin Braddy, on this the 10th
day of February, 2015.
By:/s/ Nicholas C. Harrison
Nicholas C. Harrison
Assistant District Attorney
CERTIFICATE OF WORD COUNT
I certify that this document contains 836 words according to the counting
tool in the program used to generate this document.
By:/s/ Nicholas C. Harrison
Nicholas C. Harrison
Assistant District Attorney
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