In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-24-00436-CR ___________________________
BRENDAN GERAD QUIRK, Appellant
V.
THE STATE OF TEXAS
On Appeal from County Criminal Court No. 6 Tarrant County, Texas Trial Court No. 1796366
Before Sudderth, C.J.; Wallach and Walker, JJ. Memorandum Opinion by Justice Wallach MEMORANDUM OPINION
Appellant Brendan Gerad Quirk challenges his conviction for assault causing
bodily injury of Ashley, a family member. 1 See Tex. Penal Code Ann. § 22.01(a)(1).
During trial in Tarrant County, the prosecution called two officers from the Dallas
Police Department to testify about each officer’s experience responding to a call
reporting violence between Quirk and Ashley. Before the officers testified, Quirk
requested a hearing outside the jury’s presence “to determine [the] admissibility” of
their testimony. Each officer testified during the hearing that in preparation for his
testimony that day, he had reviewed his bodycam video from the incident. Quirk
objected to the officers’ testimony, arguing among other grounds 2 that the
prosecution had not produced the bodycam videos to the defense. Quirk’s attorney
argued that the prosecution’s failure to produce the videos violated Texas Code of
Criminal Procedure Article 39.14 and that the appropriate remedy for the violation
was to exclude the officers’ testimony. The trial court overruled the objection.
On appeal, Quirk argues in two issues that “[t]he State . . . committed reversible
error by failing to produce material evidence” and that the trial court reversibly erred
1 We use an alias to protect the complainant’s identity. See Tex. R. App. P. 9.8 cmt.; McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982). 2 Quirk also objected based on the Sixth Amendment to the United States Constitution, hearsay, and Texas Rule of Evidence 403.
2 by admitting the officers’ testimony. Because Quirk did not preserve his complaints,
we will affirm.
Background
Quirk does not challenge the sufficiency of the evidence to sustain his
conviction, so we limit our discussion of the trial proceedings to the parts relevant to
his issues. See Hance v. State, 714 S.W.3d 775, 789 n.3 (Tex. App.—Fort Worth 2025,
no pet.) (op. on reh’g).
Quirk filed a motion for discovery in June 2024, requesting among other things
a list of the prosecution’s trial witnesses. The trial court granted the request, and the
prosecutor filed a witness list that did not include the Dallas officers but included
“[a]ny and all persons named or referenced in any document provided to or made
available to the Defendant by the State.” The State subsequently provided to defense
counsel the Dallas officers’ offense reports. On the evening of November 4, 2024, the
State filed an application for a subpoena for each Dallas officer, and on the following
day, it filed a supplemental witness list naming the Dallas officers as possible
witnesses. Jury voir dire began the next day, November 6.
At a hearing before voir dire, Quirk objected “due to undue surprise” to the
Dallas officers’ testifying, arguing that they had not been timely disclosed as witnesses.
The prosecutor responded that the State had provided the offense reports for those
incidents to defense counsel in July 2024; that in August, the State had provided a
notice of extraneous offenses that included the offenses for which the Dallas officers
3 were being called to testify; and that the defense thus should not have been surprised
by the State’s calling the officers as witnesses. The trial court overruled Quirk’s
objection but stated that Quirk could take the witnesses on voir dire prior to their
testimony. Quirk did not request a continuance.
Trial testimony began the next day. Before the Dallas officers testified, Quirk’s
attorney asked to take the officers on voir dire. After the officers’ voir dire testimony
referencing the bodycam videos, Quirk’s attorney argued that he had “a few issues”
with their testifying, including the fact that the bodycam videos had not been
provided to him by the prosecution. He argued that the officers would be “testifying
based on information that [he had] not seen and [that] . . . ha[d] not been provided
from the State,” despite their being in “continuous possession of the State,” which
had an “obligation to provide them.” He asserted that any testimony by the officers
would be “tainted with evidence that’s not been properly disclosed by the State.”
The prosecutor responded that the videos were “not in our possession nor
would it be in the control of the State as it is applied through [the Court of Criminal
Appeals’ recent opinion in State v.] Heath,” which discussed the State’s obligation
under Article 39.14 to produce evidence to the defense. See Tex. Code Crim. Proc.
Ann. art. 39.14 (providing that on defendant’s request, the State must produce
reports, documents, and witness statements, including witness statements of law
enforcement officers, and “other tangible things not otherwise privileged” that
constitute evidence material to a matter in the action and that “are in the possession,
4 custody, or control of the [S]tate or any person under contract with the [S]tate”); State
v. Heath, 696 S.W.3d 677, 693 (Tex. Crim. App. 2024) (holding that “the [S]tate” in
Article 39.14 encompasses law enforcement). Referencing Heath’s footnote 102, 3 the
prosecutor compared the situation to one in which the State calls out-of-state
witnesses to testify. Finally, the prosecutor asked that if the trial court believed that
Article 39.14 applied to the bodycam footage, then “the remedy be a limiting
instruction to . . . say that the jury is allowed to consider that there is a lack of body
camera [video].”
Quirk’s attorney disagreed that Dallas County was comparable to a separate
state, argued that the prosecution’s failure to produce the videos violated Article
39.14, and asserted that under Watkins, “the only true remedy” was excluding the
Dallas officers’ testimony. See Watkins v. State, 619 S.W.3d 265, 271–91 (Tex. Crim.
App. 2021) (discussing meaning of phrase “material to any matter involved in the
action” in Article 39.14). He concluded, “I don’t see how these officers can testify,
particularly given that they’re basing their testimony on something that has been
withheld . . . from us by the State.”
The prosecutor responded that Quirk had access to the same police report that
the State had, that the report mentioned the bodycam videos, and that Quirk
696 S.W.3d at 699 n.102 (stating that “[f]or purposes of Brady [v. Maryland, 3
373 U.S. 83, 87, 83 S. Ct. 1194 (1963)],” “‘the State’ includes, in addition to the prosecutor, other lawyers and employees in his office and members of law enforcement connected to the investigation and prosecution of the case’” (emphasis added)).
5 nevertheless had not included the videos in his discovery request. Thus, the
prosecution “complied with their request under [Article] 39.14.”
After reading Heath, the trial court ruled that the officers could testify but could
not testify about anything “observed in the body[ ]cam [videos] or any reference to
the body[ ]cam [videos] whatsoever” or anything about what the complainant had said
to them. The trial court stated, “So the officers’ testimony will be limited to their
observations, the reason for the call, [and] anything that they observed or discovered
in their investigation that did not come from any statements made by the injured
party.” The trial court then asked if there was “anything else Defense needed a ruling
on,” and Quirk’s attorney expressed his concern that there was no way for him to
know or verify what information in the officers’ testimony would be drawn from the
bodycam videos. To that, the trial court reiterated its ruling that the officers could
“testify from their own recollection as well as what they have ascertained from
reviewing their police reports [that] have been supplied to the Defense by the State.”
The court further stated, “If there is an objection to be made and we need to go
outside the presence of the jury to clarify, I’m happy to do that.” Such exchange never
occurred.
Quirk then requested that a limiting instruction be given before the officers’
testimony, and the trial court granted that request. Quirk did not at any point ask for a
continuance so that the bodycam videos could be obtained and reviewed. The trial
resumed, and both Dallas officers testified without further objection or a request by
6 Quirk’s counsel for a hearing outside the jury’s presence. The Grapevine police
officers who had responded to Ashley’s 911 call that led to the assault charge in this
case also testified.
Ashley testified in his defense. Quirk’s defense was that Ashley had repeatedly
lied to police because of a mental health condition, and Ashley testified accordingly.
In other words, Quirk’s defense—and Ashley’s testimony—was that her mental
health condition made her untruthful (and that for one of the Dallas incidents, she
was drunk) and that her words thus could not be trusted. In line with that defense,
she did not deny telling the Dallas officers or the Grapevine officers who responded
to her 911 call giving rise to the instant charge that Quirk had assaulted her, although
she claimed to have no memory some of it. Her testimony was simply that Quirk had
never assaulted her regardless of what she had told the Dallas officers, the Grapevine
officers, or the other Grapevine officers who had responded to a previous call
involving the couple.
The jury found Quirk guilty, and the trial court made an affirmative finding of
family violence and assessed Quirk’s punishment at 180 days’ confinement in the
Tarrant County Jail and a $2,000 fine.
Discussion
I. Arguments in Quirk’s Original Brief
In Quirk’s first issue, he argues that the State “committed reversible error by
failing to produce material evidence (police body worn camera videos . . . from two
7 extraneous offenses) that were in the possession, custody, and control of the State in
violation” of Heath, Watkins, and Article 39.14. In his second issue, he asserts that the
trial court committed reversible error by admitting the testimony of the Dallas police
officers “that: (1) were not timely included in the State’s pretrial disclosures, and
(2) refreshed their memories prior to testifying with the same [bodycam] videos that
the State failed to produce.” He argues that the State’s failure to produce the bodycam
videos prevented him “from effectively preparing a defense to the State’s trial and
punishment strategy, cross[-]examinations, and impeaching or rebutting the Dallas
[o]fficers’ testimony” and that the trial court’s error in allowing the officers’ testimony
requires reversal and a new trial. In summary, he argues that the trial court reversibly
erred by admitting the officers’ testimony when they had not been timely disclosed as
witnesses and when their testimony may have been based in part on bodycam videos
that the prosecution had failed to produce in violation of Article 39.14.
When the State fails to produce evidence it is required to produce under Article
39.14 and the trial court denies the defendant’s request to exclude the evidence or to
dismiss the indictment, the defendant does not preserve that complaint for appellate
review unless the defendant seeks a continuance. See Derrough v. State, No. 02-24-
00281-CR, 2025 WL 1774761, at *9 (Tex. App.—Fort Worth June 26, 2025, no pet.)
(mem. op., not designated for publication) (stating that “[t]o preserve error regarding
the State’s violation of Article 39.14,” a defendant must request a continuance); see also
Cadena v. State, No. 11-22-00225-CR, 2023 WL 8459093, at *5 (Tex. App.—Eastland
8 Dec. 7, 2023, no pet.) (mem. op., not designated for publication) (holding appellant
had not preserved complaint about trial court’s overruling his objection to late-
disclosed evidence because he had not requested a continuance); Rodriguez v. State,
630 S.W.3d 522, 524 (Tex. App.—Waco 2021, no pet.) (rejecting defendant’s
argument that Article 39.14 violation “had a material effect on her trial strategy and
thereby deprived her of due process” when she did not request a continuance); Byrd v.
State, No. 02-15-00288-CR, 2017 WL 817147, at *4 (Tex. App.—Fort Worth Mar. 2,
2017, pet. ref’d) (mem. op., not designated for publication) (holding that requesting a
continuance would have allowed defendant to avoid claimed prejudice and
impairment of his defense from late disclosure of records); cf. Tex. Code Crim. Proc.
Ann. art. 29.13 (providing that trial court may grant continuance after trial begins if it
determines that “by some unexpected occurrence since trial began, which no
reasonable diligence could have anticipated, the applicant is so taken by surprise that a
fair trial cannot be had”).
Here, Quirk’s attorney objected to the Dallas officers’ testimony “due to
surprise” because they had not been timely disclosed as witnesses. The next day, he
objected that he had not received the bodycam videos and argued, “I’m not going to
know what these officers are pulling from their review of the body[ ]cam [videos] that
they have already done today versus what they are just pulling from their report that
we have had access to.” His concerns could have been addressed by seeking a
continuance. See Ruffins v. State, 691 S.W.3d 166, 186–87 (Tex. App.—Austin 2024, no
9 pet.); see also Schard v. State, No. 09-16-00291-CR, 2018 WL 1630891, at *8 (Tex.
App.—Beaumont Apr. 4, 2018, no pet.) (mem. op., not designated for publication)
(noting that trial judge had sent an order to hospital mid-trial to require production of
records and had recessed proceedings to give defendant opportunity to review the
records before nurse’s testimony). Quirk did not request that relief. Accordingly, he
has not preserved his complaints that the officers’ testimony should have been
excluded on the basis that the bodycam videos were not provided and that the
officers had not been timely disclosed as witnesses.
II. Quirk’s Reply Brief Argument
The State’s brief pointed out Quirk’s failure to seek a continuance. In response,
Quirk filed a reply brief making two arguments. First, he contends that a motion for
continuance “is only necessary as a result of the State’s belated disclosure of evidence
to be used at trial or the State’s offer of undisclosed evidence at trial,” and neither
situation occurred in this case because the State never offered the videos or disclosed
them as evidence to be used during trial. He argues that because the State “never
intended to use or disclose the [bodycam] videos at trial and has continuously argued
that the State has no duty to provide” the videos, a motion for continuance “was
useless and unnecessary.”
We disagree. In the trial court, Quirk complained that the Dallas officers’
testimony—which the State did intend to use—would be based in part on the
bodycam videos that he had not seen despite the State’s duty to produce them under
10 Article 39.14. He argued that without seeing the bodycam videos, he could not know
what part of their testimony would be derived from those videos, and his original
brief argued that the State’s failure to produce them prevented him “from effectively
preparing a defense to the State’s trial and punishment strategy, cross examinations,
and impeaching or rebutting” the Dallas officers’ testimony. These Article
39.14-based issues could have been cured by the production of the videos during a
continuance. Thus, to preserve an objection based on Article 39.14, Quirk was
required to request a continuance. See Derrough, 2025 WL 1774761, at *9; see also
Ruffins, 691 S.W.3d at 186–87; Rodriguez, 630 S.W.3d at 524.
Quirk’s second reply brief argument is that the State had also been required to
produce the bodycam videos under Texas Rule of Evidence 612 and that he did not
need to seek a continuance to preserve a complaint based on that rule.
Under Rule 612, “when a witness uses a writing to refresh memory” before
testifying, the adverse party “is entitled to have the writing produced at the hearing, to
inspect it, [and] to cross-examine the witness about it.” Tex. R. Evid. 612(a), (b). “If
the producing party”—here the State—“claims that the writing includes unrelated
matter, the court must examine the writing in camera, delete any unrelated portion,
and order that the rest be delivered to the adverse party.” Tex. R. Evid. 612(b).
Generally, if the writing “is not produced or is not delivered as ordered, the court may
issue any appropriate order,” but in a criminal case, “if the prosecution does not
11 comply,” then the trial court “must strike the witness’s testimony or—if justice so
requires—declare a mistrial.” Tex. R. Evid. 612(c).
Quirk’s new argument faces two hurdles. First, he did not raise a Rule
612 complaint in his original brief. See Chambers v. State, 580 S.W.3d 149, 161 (Tex.
Crim. App. 2019) (“[N]ew issues raised in a reply brief should not be considered.”).
Although he mentioned in his brief that the Dallas officers had used the bodycam
videos to refresh their memories, he never mentioned Rule 612 and did not cite any
case applying that rule. Second, even if we were to consider his new Rule
612 argument to be sufficiently related to his original brief issues such that we could
consider it, he did not preserve this complaint below. See Tex. R. App. P. 33.1; Tex. R.
Evid. 103(a).
To preserve a complaint for our review, a party must have presented to the trial
court a timely request, objection, or motion sufficiently stating the specific grounds, if
not apparent from the context, for the desired ruling. Montelongo v. State, 623 S.W.3d
819, 822 (Tex. Crim. App. 2021); Silva v. State, Nos. 14-23-00324-CR,
14-23-00325-CR, 2024 WL 3507508, at *1 (Tex. App.—Houston [14th Dist.] July 23,
2024, no pet.) (mem. op., not designated for publication) (noting that to preserve a
complaint, party must state the specific factual and legal basis for the ruling that the
party seeks); see Tex. R. App. P. 33.1. “[T]he complaining party bears the responsibility
of clearly conveying to the trial judge the party’s particular complaint, the precise and
proper application of law, as well as the underlying rationale.” De La Cerda v. State,
12 No. 14-22-00471-CR, 2023 WL 7401512, at *2 (Tex. App.—Houston [14th Dist.]
Nov. 9, 2023, no pet.) (mem. op., not designated for publication) (citing Pena v. State,
285 S.W.3d 459, 464 (Tex. Crim. App. 2009)). “As a general rule, an appellate court
reviewing a trial court’s ruling on the admission or exclusion of evidence must do so
in light of the arguments, information, and evidence that was available to the trial
court at the time it ruled.” Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003)
(holding court of appeals erred in considering arguments appellant made for first time
on appeal).
No “specific words or technical considerations” are required to preserve a
complaint; a party who has “let the trial court know what he wants and why he feels
himself entitled to it clearly enough for the judge to understand him” has satisfied
preservation requirements. Vasquez v. State, 483 S.W.3d 550, 554 (Tex. Crim. App.
2016). “But, a general or imprecise objection will not preserve error for appeal unless
‘the legal basis for the objection is obvious to the court and to opposing counsel.’” Id.
(quoting Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006)). “‘Usually, for
a complaint to be obvious,’ there will ‘have been statements or actions on the record
that clearly indicate what the judge and opposing counsel understood the argument to
be.’” Ex parte Nuncio, 662 S.W.3d 903, 914 (Tex. Crim. App. 2022) (quoting Clark v.
State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012)).
Here, Quirk clearly objected to the Dallas officers’ testimony, he asserted that
the State had failed in its duty to provide the bodycam videos, and he articulated his
13 belief that their testifying would be unfair to him because their testimony could be
based in part on videos that he had not seen. However, as we will explain, while he
clearly argued that the State should have disclosed the videos, what he did not make
obvious was that the legal bases for his objection included Rule 612.
After the second Dallas officer’s voir dire testimony, Quirk made a series of
objections. As noted above, he began by stating that he had “a few issues” with the
officers’ testifying:
Judge, I have a few issues here. One, I’m learning today that there are body[ ]cams from both officers that we don’t have. They have been in continuous possession of the State. It’s the State’s obligation to provide them. We don’t have them. Both officers reviewed their body camera, so they’ve looked it over, prepared their testimony based on that, so they are going to be testifying based on information that we have not seen and we have not been provided from the State. I have an objection to any testimony because it’s tainted with evidence that’s not been properly disclosed by the State. [Emphases added.]
This argument arguably could have been referencing Rule 612’s requirements
to provide to an adverse party any writing used to refresh memory, but it equally
could have been invoking Article 39.14’s requirement that the State turn over
impeachment evidence as well as discovery “material to any matter involved in the
action” when the material is in the State’s possession, custody, or control. See Tex.
Code Crim. Proc. Ann. art. 39.14(a), (h); Tex. R. Evid. 612. Thus, this argument was
insufficient to make it obvious to the trial court that he was objecting based on Rule
612. See Resendez v. State, 306 S.W.3d 308, 314 (Tex. Crim. App. 2009) (holding that “a
complaint that could, in isolation, be read to express more than one legal argument
14 will generally not preserve all potentially relevant arguments for appeal” and that
“[o]nly when there are clear contextual clues indicating that the party was, in fact,
making a particular argument will that argument be preserved”); Broxton v. State,
909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (“An objection stating one legal theory
may not be used to support a different legal theory on appeal.” (citation and quotation
marks omitted)); Sedeno v. State, No. 14-07-00327-CR, 2008 WL 5104169, at *3 (Tex.
App.—Houston [14th Dist.] Nov. 25, 2008, no pet.) (mem. op., not designated for
publication) (holding that defendant’s comments to trial court “did not state his
complaint with sufficient specificity to make the trial court aware he wished to refresh
[the witness’s] recollection with the NHTSA manual” and thus defendant had not
preserved Rule 612 complaint).
Then, Quirk made further arguments before the trial court ruled, and in those
arguments he explicitly invoked Article 39.14 but never mentioned Rule 612. First,
Quirk responded to the State’s references to Article 39.14 and Heath by specifically
arguing that the State had violated Article 39.14. He argued,
Judge, . . . the argument as I understand it is even though the officers are testifying based on their review of evidence that we have not seen, the State’s under no obligation to provide us with that evidence, which would be the [videos]. And we -- I think that’s a violation of 39.14 clearly. And Dallas, as much as some of us would like to make it so, is not in a separate state. They’re not that far away. [Emphasis added.] So I think that’s problematic, just like the [prosecutor’s] argument [earlier that morning] that officers get to testify routinely about hearsay because they don’t, as we saw this morning.
15 So I think with our arguments that we have made, Judge, I don’t see how these officers can testify, particularly given that they’re basing their testimony on something that has been withheld from the State -- withheld from us by the State.
....
I would point out since we’re talking about Heath, from the actual body of the opinion, the court specifically states that Article 39.14[‘s] use of the word State means exactly what one would think it means, the State of Texas[,] and it does say that is to be used in the broadest sense. [Emphasis added.]
Then, after the State argued that a remedy for an Article 39.14 violation is a
limiting instruction, Quirk did not mention Rule 612 or argue that the evidentiary rule
required the production of writings used to refresh a witness’s memory and exclusion
of the officers’ testimony if the videos were not produced. See Tex. R. Evid. 612(a),
(c). Instead, Quirk cited Watkins, a Court of Criminal Appeals opinion that addresses
Article 39.14 and does not mention Rule 612. See Watkins, 619 S.W.3d at 268–91.
Further, the record does not reflect that the trial court clearly understood Quirk
to be raising an objection based on Rule 612. After the parties made their arguments,
the trial court took a moment to “read[ ] over parts of Heath.” The trial court then
stated,
Okay. Having heard arguments from both the State and the Defense, I am going to allow the officers’ testimony. However, as the [videos] ha[ve] not been supplied, I’m going to exclude any mention to anything observed in the [videos] or any reference to the [videos] whatsoever. I am also going to sustain the objection as to hearsay as to any statements made by the injured party in this case. So the officers’ testimony will be limited to their observations, the reason for the call, anything that they
16 observed or discovered in their investigation that did not come from any statements made by the injured party.
Nothing suggests that the trial court had considered Rule 612 in its ruling, and its
pausing proceedings to read Heath indicates that it was considering the application of
Article 39.14. The trial court further stated that it was overruling “the 403 objection
and the Crawford and Sixth Amendment objections 4 made by the Defense.” Nothing
in those rulings indicated that the trial court understood that Quirk was making a Rule
612 objection. Moreover, nothing indicates that the prosecutor understood Rule
612 to be Quirk’s objection, either; all of the prosecutor’s arguments about the State’s
obligation to produce discovery related to Article 39.14.
After those rulings, Quirk made one more argument regarding the Dallas
officers’ testimony, and that argument did not cite Rule 612 or obviously refer to it, as
opposed to Article 39.14:
Judge, I would ask – I know it’s a little late. Well, I guess my concern is I’m not going to know what these officers are pulling from their review of the [videos] that they have already done today versus what they are just pulling from their report that we have had access to. I don’t know how we can verify that or determine that.
I know looking at the police report, a lot of what testimony they gave us this afternoon was not included in the police report and so I
4 A violation of the Sixth Amendment right to cross-examine witnesses and a violation of Rule 612 can both be implicated by the exclusion of evidence that could be used in cross-examination. See Young v. State, 891 S.W.2d 945, 948 (Tex. Crim. App. 1994). Nevertheless, an objection based on a constitutional provision does not necessarily alert the trial court to an objection based on a statutory provision. See, e.g., Broxton, 909 S.W.2d at 918.
17 think my only assumption has to be that it came from the [video] footage that the Court just said that they can’t allude to or reference. So I’m finding difficulty in determining how they can testify to anything and we can verify that they got it strictly from this police report that we have had access to. That’s my concern.
This argument, like the objection he began with, is one that he could have
made to support a Rule 612 objection, but it would also have relevance to an
objection under Article 39.14. Given that Quirk to that point had specifically
referenced Article 39.14 and cases applying it but had not mentioned Rule 612, this
argument was not enough to apprise the trial court that he was also objecting based
on Rule 612. See Resendez, 306 S.W.3d at 314; Broxton, 909 S.W.2d at 918.
Quirk cites Young v. State, 830 S.W.2d 122, 125 n.3 (Tex. Crim. App. 1992)
(plurality op.), for the proposition that to preserve a Rule 612 complaint, a defendant
“is not required to undertake the practically impossible task of somehow unilaterally
acquiring the materials for inclusion in the record to preserve the matter for appeal”
and that “[t]he error is complete and preserved when a criminal defendant is denied
access to materials he is entitled.” That footnote addressed the State’s argument in
that case that the defendant had not preserved his Rule 612 5 complaint for appeal
because he had not ensured that the writing used to refresh the witness’s memory—
which the witness had not brought to trial—was made a part of the appellate record.
Young discussed former Texas Rule of Criminal Evidence 611, which is now 5
Texas Rule of Evidence 612. See Powell v. State, 5 S.W.3d 369, 379 n.4 (Tex. App.— Texarkana 1999, pet. ref’d).
18 Id. at 124, 125 n.3. The Young court held, “To say that in order to ‘demonstrate that
the court erred’ an appellant must nonetheless unilaterally somehow acquire [the
materials] from the witness for inclusion in the appellate record by way of a bill of
exception is to impose a practically impossible task that the law or rule does not
require.” Id. at 125 n.3. But Young does not hold that a defendant has no need to make
a Rule 612 objection to preserve error, and the court specifically noted that the
defendant was entitled to have the records produced for inspection by his counsel
“[w]hen [he] invoked Rule [612].” Id. at 124–25.
Although Quirk was not required to use any specific words to preserve his
complaint, he was required to make the legal basis for his objection obvious to the
trial court. Vasquez, 483 S.W.3d at 554. He did not do so with respect to the Rule
612 complaint that he raises in his reply brief. Thus, he did not preserve this
complaint for appeal.6
We overrule both of Quirk’s issues.
6 Because of our holding, we need not decide if it matters for preservation or harm-analysis purposes that the officers were not asked—and thus the record does not reflect—what the officers remembered independently of the bodycam videos versus what, if anything, they remembered because they watched the footage. We further note that nothing in the record indicates that the officers did not follow the trial court’s ruling to refrain from mentioning anything that they had observed in the video. Moreover, the record suggests that the bodycam footage did not work to refresh either officer’s memory, or at least they did not retain that memory by the time of their voir dire testimony.
19 Conclusion
Having overruled Quirk’s two issues, we affirm the trial court’s judgment.
/s/ Mike Wallach Mike Wallach Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: September 18, 2025