Alejandro Isidoro Rodriguez v. State

Opinion

Opinion issued June 4, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00606-CR ——————————— ALEJANDRO ISIDORO RODRIGUEZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court Harris County, Texas Trial Court Case No. 1251132

MEMORANDUM OPINION

Appellant, Alejandro Isidoro Rodriguez, was charged by indictment with

aggravated sexual assault. 1 He pleaded not guilty. A jury found him guilty and

assessed punishment at 45 years’ confinement. In one issue, appellant argues that

1 See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i), (a)(2)(A)(iv) (Vernon Supp. 2012). the trial court abused its discretion when it limited the scope of his cross-

examination of the complainant.

We affirm.

Background

On February 8, 2010, appellant was at a bar where men could pay women to

dance with them. He danced with the complainant many times. At the end of their

time dancing, appellant owed her more money than he had on him. Appellant

convinced a man giving the complainant and the complainant’s daughter a ride

home to take appellant to his apartment complex first, so he could pay the

complainant the remainder of what he owed her. Once there, appellant walked into

the complex and came back a short time later. He lured the complainant out of the

car, at which point he produced a gun and forced her to come with him into the

apartment complex. The driver of the car and the complainant’s daughter called

the police.

Appellant pulled the complainant into his apartment, forced her to remove

her clothing, and forced her to have sexual intercourse with him. Some time later,

appellant attempted to take the complainant to another location. He was

apprehended by police and arrested.

Immediately before the complainant testified in the guilt-innocence phase of

appellant’s trial, the State sought to prohibit appellant from cross-examining the

2 complainant about her pending application for a visa for permanent residency

authorized under the federal Violence Against Women Act. The trial court

instructed appellant not to cross-examine her on the matter. The court explained,

though, “[I]n the event that I think that it becomes relevant, I will let you go into it

and if you think it becomes relevant and you want to re-urge your position, you are

not precluded from doing that.” Appellant did not re-urge the matter during his

cross-examination of the complainant. After the jury retired for deliberation,

appellant presented an offer of proof to establish the intended scope of the cross-

examination of the complainant on her application for the visa and its relevance.

Cross-Examination

In one issue, appellant argues that the trial court abused its discretion when it

limited the scope of his cross-examination of the complainant. The State argues

this issue has been waived. We agree.

Rule 103 of the Texas Rules of Evidence provides that one of the

requirements for reversal based on exclusion of evidence is that “the substance of

the evidence was made known to the court by offer, or was apparent from the

context within which questions were asked.” TEX. R. EVID. 103(a)(2). There were

no questions asked regarding the complainant’s application for a visa.

Accordingly, the substance of the evidence had to have been made known by an

offer of proof. An offer of proof must be made “as soon as practicable, but before

3 the court’s charge is read to the jury.” TEX. R. EVID. 103(b). A party must comply

with rule 103 in order to preserve a claim of error based on the trial court’s

exclusion of evidence. Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App.

2009).

It is undisputed that appellant did not present his offer of proof about cross-

examination based on the complainant’s visa application until after the jury had

begun deliberations. Because the offer of proof was not presented before the

court’s charge was read to the jury, this issue has been waived. See TEX. R. EVID.

103(b); Mays, 285 S.W.3d at 889.

We overrule appellant’s sole issue.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley Justice

Panel consists of Justices Keyes, Higley, and Bland.

Do not publish. TEX. R. APP. P. 47.2(b).