David Michael Dollins v. State

Opinion

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

3 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

4 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). 5 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,

6 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

7 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