NUMBER 13-23-00277-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DARIN JOHNSON Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE COUNTY COURT AT LAW NO. 14 OF BEXAR COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Silva Memorandum Opinion by Justice Longoria
Appellant Darin Johnson was convicted by a jury of assault causing bodily injury,
a class B misdemeanor, and was sentenced to one year in county jail, suspended for two
years of community supervision. See TEX. PENAL CODE ANN. § 25.11(a). By one issue, Johnson argues that her constitutional rights were violated when the trial court
“constrain[ed her] cross-examination of [a] witness.” We affirm.
I. BACKGROUND 1
Johnson was charged by complaint with assault causing bodily injury. Trial
consisted solely of the complainant’s testimony. Mark Clanton, the complainant, testified
that he taught special education for fifteen years after retiring from the Air Force. He
explained that he has lived in his current home since 2002 and that Johnson moved next
door to him in 2019. Clanton explained that on September 19, 2021, his wife “called for
[his] assistance” because Johnson had been removing tree limbs from his trees over his
fence. He stated that Johnson had done that in the past when he and his wife were not
home. Clanton stated that he then began to record Johnson “cutting [his] trees and
violating the property line.” The video was admitted into evidence without objection. On
the video, Johnson is seen on her side of the fence cutting down branches from a tree in
Clanton’s yard. Johnson then, noticing Clanton recording her, swings a saw at his phone
two times. According to Clanton, the first swing struck his phone and the second swing
“raked across the back of [his] hand.” The saw cut open his hand, causing him to bleed.
He stated he was “shocked” that she had done that. He was concerned at the time
because he was on blood thinners after recent triple bypass surgery. A photograph taken
by either Clanton or his wife of the cut across the back of Clanton’s hand was admitted
into evidence. He testified that the cut came from Johnson striking him with the saw.
1 This appeal was transferred to this Court from the Fourth Court of Appeals in San Antonio pursuant
to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §§ 22.220(a) (delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is “good cause” for the transfer). We are bound by the precedent of the transferring court to the extent that it conflicts with our own. See TEX. R. APP. P. 41.3.
2 On cross-examination, Clanton explained that the portion of the video shown was
not the full video. A still shot from the longer video was admitted into evidence where
Clanton testified that he could see no injury to his hand from that angle. The timestamp
on the video shows that it was after the incident when Johnson swung the saw at him. He
said Johnson wanted the trees cut down because when they blossomed, the flowers fell
into her pool. He agreed that the type of tree he had in his yard could “dangle down” over
the fence line into Johnson’s yard but that she reached across the property line to cut his
tree branches down. Clanton agreed that he and Johnson did not get along. After the
incident, Clanton did not seek medical attention, but he did call the police.
On re-direct, the longer video was admitted and shown to the jury. In the video,
Clanton can be heard telling his wife that he was bleeding after Johnson struck him with
the saw.
The jury found Johnson guilty, and punishment was assessed as described above.
This appeal followed.
II. DISCUSSION
Johnson’s sole complaint on appeal is that she was denied the right to fully present
her defense when she was unable to question Clanton regarding previous incidents
between herself and the Clantons which she argues would have exposed Clanton’s bias.
A. Standard of Review & Applicable Law
We review a trial court’s decision to limit cross-examination for an abuse of
discretion. Walker v. State, 300 S.W.3d 836, 843 (Tex. App.—Fort Worth 2009, pet. ref’d).
The trial court abuses its discretion when its decision goes beyond the zone of reasonable
disagreement. See id.
3 Relevant evidence is generally admissible. See TEX. R. EVID. 402. Any possible
bias or attack on the credibility of a witness is always relevant. See Billodeau v. State,
277 S.W.3d 34, 42–43 (Tex. Crim. App. 2009). Thus, trial courts should give defendants
“great latitude to reveal any relevant facts that reflect on the credibility of the witness.”
Walker, 300 S.W.3d at 844; see Johnson v. State, 433 S.W.3d 546, 551 (Tex. Crim. App.
2014) (“[I]t is not within a trial court’s discretion to prohibit a defendant from engaging in
otherwise appropriate cross-examination designed to show a prototypical form of bias on
the part of the witness.” (internal quotations omitted)). However, it is still within the trial
court’s authority to impose reasonable limits on cross-examination. See Johnson, 433
S.W.3d at 552; Billodeau, 277 S.W.3d at 42–43 (“[T]he defendant is entitled, subject to
reasonable restrictions, to show any relevant fact that might tend to establish ill feeling,
bias, motive, interest, or animus on the part of any witness testifying against him.”);
Walker, 300 S.W.3d at 844–45 (“[T]he Confrontation Clause guarantees an opportunity
for effective cross-examination, not cross-examination that is effective in whatever way,
and to whatever extent, the defense might wish.” (quoting Delaware v. Fensterer, 474
U.S. 15, 20 (1985))). For example, a trial court may limit cross-examination “based on
concerns about, among other things, harassment, prejudice, confusion of the issues, the
witness’[s] safety, or interrogation that is repetitive or only marginally relevant.” Walker,
300 S.W.3d at 845 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
B. Analysis
We first address the State’s argument that Johnson has waived this issue. The
State argues that Johnson failed to make an offer of proof or seek reconsideration of the
granted motion in limine. Before trial began, a motion in limine was filed by the State,
4 wherein, the State requested that counsel approach and obtain a ruling on admissibility
regarding certain testimony relating to prior instances of conflict between Johnson and
Clanton’s wife and an ongoing civil suit between Johnson and the Clantons related to
their property lines. The trial court granted the motion and asked the parties to approach
before broaching those topics. A ruling on a State’s motion in limine that excludes defense
evidence is subject to reconsideration throughout trial and to preserve error an offer of
the evidence must be made at trial. Warner v.
Free access — add to your briefcase to read the full text and ask questions with AI
NUMBER 13-23-00277-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DARIN JOHNSON Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE COUNTY COURT AT LAW NO. 14 OF BEXAR COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Silva Memorandum Opinion by Justice Longoria
Appellant Darin Johnson was convicted by a jury of assault causing bodily injury,
a class B misdemeanor, and was sentenced to one year in county jail, suspended for two
years of community supervision. See TEX. PENAL CODE ANN. § 25.11(a). By one issue, Johnson argues that her constitutional rights were violated when the trial court
“constrain[ed her] cross-examination of [a] witness.” We affirm.
I. BACKGROUND 1
Johnson was charged by complaint with assault causing bodily injury. Trial
consisted solely of the complainant’s testimony. Mark Clanton, the complainant, testified
that he taught special education for fifteen years after retiring from the Air Force. He
explained that he has lived in his current home since 2002 and that Johnson moved next
door to him in 2019. Clanton explained that on September 19, 2021, his wife “called for
[his] assistance” because Johnson had been removing tree limbs from his trees over his
fence. He stated that Johnson had done that in the past when he and his wife were not
home. Clanton stated that he then began to record Johnson “cutting [his] trees and
violating the property line.” The video was admitted into evidence without objection. On
the video, Johnson is seen on her side of the fence cutting down branches from a tree in
Clanton’s yard. Johnson then, noticing Clanton recording her, swings a saw at his phone
two times. According to Clanton, the first swing struck his phone and the second swing
“raked across the back of [his] hand.” The saw cut open his hand, causing him to bleed.
He stated he was “shocked” that she had done that. He was concerned at the time
because he was on blood thinners after recent triple bypass surgery. A photograph taken
by either Clanton or his wife of the cut across the back of Clanton’s hand was admitted
into evidence. He testified that the cut came from Johnson striking him with the saw.
1 This appeal was transferred to this Court from the Fourth Court of Appeals in San Antonio pursuant
to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §§ 22.220(a) (delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is “good cause” for the transfer). We are bound by the precedent of the transferring court to the extent that it conflicts with our own. See TEX. R. APP. P. 41.3.
2 On cross-examination, Clanton explained that the portion of the video shown was
not the full video. A still shot from the longer video was admitted into evidence where
Clanton testified that he could see no injury to his hand from that angle. The timestamp
on the video shows that it was after the incident when Johnson swung the saw at him. He
said Johnson wanted the trees cut down because when they blossomed, the flowers fell
into her pool. He agreed that the type of tree he had in his yard could “dangle down” over
the fence line into Johnson’s yard but that she reached across the property line to cut his
tree branches down. Clanton agreed that he and Johnson did not get along. After the
incident, Clanton did not seek medical attention, but he did call the police.
On re-direct, the longer video was admitted and shown to the jury. In the video,
Clanton can be heard telling his wife that he was bleeding after Johnson struck him with
the saw.
The jury found Johnson guilty, and punishment was assessed as described above.
This appeal followed.
II. DISCUSSION
Johnson’s sole complaint on appeal is that she was denied the right to fully present
her defense when she was unable to question Clanton regarding previous incidents
between herself and the Clantons which she argues would have exposed Clanton’s bias.
A. Standard of Review & Applicable Law
We review a trial court’s decision to limit cross-examination for an abuse of
discretion. Walker v. State, 300 S.W.3d 836, 843 (Tex. App.—Fort Worth 2009, pet. ref’d).
The trial court abuses its discretion when its decision goes beyond the zone of reasonable
disagreement. See id.
3 Relevant evidence is generally admissible. See TEX. R. EVID. 402. Any possible
bias or attack on the credibility of a witness is always relevant. See Billodeau v. State,
277 S.W.3d 34, 42–43 (Tex. Crim. App. 2009). Thus, trial courts should give defendants
“great latitude to reveal any relevant facts that reflect on the credibility of the witness.”
Walker, 300 S.W.3d at 844; see Johnson v. State, 433 S.W.3d 546, 551 (Tex. Crim. App.
2014) (“[I]t is not within a trial court’s discretion to prohibit a defendant from engaging in
otherwise appropriate cross-examination designed to show a prototypical form of bias on
the part of the witness.” (internal quotations omitted)). However, it is still within the trial
court’s authority to impose reasonable limits on cross-examination. See Johnson, 433
S.W.3d at 552; Billodeau, 277 S.W.3d at 42–43 (“[T]he defendant is entitled, subject to
reasonable restrictions, to show any relevant fact that might tend to establish ill feeling,
bias, motive, interest, or animus on the part of any witness testifying against him.”);
Walker, 300 S.W.3d at 844–45 (“[T]he Confrontation Clause guarantees an opportunity
for effective cross-examination, not cross-examination that is effective in whatever way,
and to whatever extent, the defense might wish.” (quoting Delaware v. Fensterer, 474
U.S. 15, 20 (1985))). For example, a trial court may limit cross-examination “based on
concerns about, among other things, harassment, prejudice, confusion of the issues, the
witness’[s] safety, or interrogation that is repetitive or only marginally relevant.” Walker,
300 S.W.3d at 845 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
B. Analysis
We first address the State’s argument that Johnson has waived this issue. The
State argues that Johnson failed to make an offer of proof or seek reconsideration of the
granted motion in limine. Before trial began, a motion in limine was filed by the State,
4 wherein, the State requested that counsel approach and obtain a ruling on admissibility
regarding certain testimony relating to prior instances of conflict between Johnson and
Clanton’s wife and an ongoing civil suit between Johnson and the Clantons related to
their property lines. The trial court granted the motion and asked the parties to approach
before broaching those topics. A ruling on a State’s motion in limine that excludes defense
evidence is subject to reconsideration throughout trial and to preserve error an offer of
the evidence must be made at trial. Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App.
1998).
During Clanton’s cross-examination, Johnson’s attorney attempted to question
Clanton regarding the discord between Johnson and Clanton’s wife, and the following
exchange occurred:
[Defense Counsel]: Mr. Clanton, would it be fair to say you and Ms. Johnson don’t get along?
[Clanton]: That’s more than fair.
[Defense Counsel]: Okay. And I am not asking you to speak for your wife, but you live with the woman. She doesn’t get along with Ms. Johnson either?
[The State]: Objection, Your Honor. This is speculation and also is irrelevant. We are here today because Ms. Darin Johnson allegedly assaulted Mr. Mark Clanton, not his wife.
[The Court]: I will sustain the objection. Next question.
To adequately and effectively preserve error in a trial court’s exclusion of evidence,
the substance of the excluded evidence must be shown by an offer of proof unless it is
apparent from the context of the questions asked. See TEX. R. EVID. 103(a)(2); Mays v.
State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009). The purpose of the offer of proof is
5 to show what the witness’s testimony would have been; otherwise, there is nothing before
the appellate court to show reversible error in the trial court’s ruling. See Stewart v. State,
686 S.W.2d 118, 122 (Tex. Crim. App. 1984); see also Guidry v. State, 9 S.W.3d 133, 153
(Tex. Crim. App. 1999). Error may be preserved by an offer of proof in question-and-
answer form or in the form of a concise statement by counsel. See TEX. R. EVID. 103(b);
Mays, 285 S.W.3d at 889–90; Warner, 969 S.W.2d at 2. Counsel’s concise statement
“must include a reasonably specific summary of the evidence offered and must state the
relevance of the evidence unless the relevance is apparent, so that the court can
determine whether the evidence is relevant and admissible.” Mays, 285 S.W.3d at 889–
90 (quoting Warner, 969 S.W.2d at 2). Error is not preserved if the offer of proof is
inadequate. Warner, 969 S.W.2d at 2. “The primary purpose of an offer of proof is to
enable an appellate court to determine whether the exclusion was erroneous and harmful.
A secondary purpose is to permit the trial judge to reconsider his ruling in light of the
actual evidence.” Mays, 285 S.W.3d at 890 (quoting STEVEN GOODE, ET AL., 1 TEXAS
PRACTICE–GUIDE TO THE TEXAS RULES OF EVIDENCE: CIVIL AND CRIMINAL § 103.3 (2d
ed.1993)).
Here, Johnson did not make an offer of proof setting forth the substance of the
proffered evidence as required. As such, we hold that Johnson did not preserve her
complaint for appeal. See id. at 891.
However, even assuming that the substance of the excluded evidence would be
apparent from the context of the questions asked, see Mays, 285 S.W.3d at 889, the trial
court did not err in excluding the testimony. Johnson argues that limiting her cross-
examination of Clanton regarding the discord between Johnson and the Clantons limited
6 her ability to “confront her accuser regarding his bias and motive as a witness.” We
disagree. Johnson was able to ask Clanton specifically about his relationship with
Johnson, and she did so. He admitted that he did not have an amicable relationship with
Johnson and stated that this was not their first confrontation. Johnson was limited in
asking questions about Clanton’s wife, who was not a witness. “[T]he trial court retains
wide latitude to impose reasonable limits on such cross-examination ‘based on concerns
about, among other things, harassment, prejudice, confusion of the issues, the witness’[s]
safety, or interrogation that is repetitive or only marginally relevant.’” Johnson v. State,
490 S.W.3d 895, 907 (Tex. Crim. App. 2016) (quoting Van Arsdall, 475 U.S. at 679).
Because the dispute at issue involved Clanton and Johnson and not Clanton’s wife, the
trial court was within its discretion to limit Johnson’s cross-examination to that which was
relevant to the issue before the jury: whether Johnson assaulted Clanton causing bodily
injury. Johnson’s sole issue is overruled.
III. CONCLUSION
The judgment of the trial court is affirmed.
NORA L. LONGORIA Justice
Do not publish. TEX. R. APP. P. 47.2 (b).
Delivered and filed on the 15th day of August, 2024.