Reyna, Ramon

• Court: Court of Criminal Appeals of Texas
• Decided: June 29, 2005
• Docket: PD-0255-04
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0255-04 RAMON REYNA, Appellant

v.

THE STATE OF TEXAS

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE ELEVENTH COURT OF APPEALS

COLLIN COUNTY

Keasler, J., delivered the opinion of the Court in which Keller, P.J., and Meyers, Price, Hervey, and Cochran, JJ., joined. Holcomb, J., filed a dissenting opinion in Part I of which Womack, J., joined and in which Johnson, J., joined in full.

O P I N I O N

At Ramon Reyna's trial, he attempted to introduce evidence which the trial judge excluded. He did not argue that the Confrontation Clause demanded admission of the evidence, but the Court of Appeals reversed the conviction on these grounds. We conclude that the appellate court erred because Reyna, as the proponent of the evidence, was required to offer the evidence for its admissible purpose, and he did not do so.

FACTS

Reyna was charged with indecency with a child. At trial, after the State had examined the victim, Reyna sought to introduce evidence of the victim's prior false allegation of sexual assault and her recantation of that allegation. The judge conducted the following in camera hearing:

[DEFENSE COUNSEL]: Your Honor, for the record, the witness in front of the Court now is named [the victim]. The question that I would put to her is whether or not she was the victim of a sexual assault by a Mr. Miorga, her mother's boyfriend. The date of the event would have occurred in 1995 or '96, where she took her two siblings and ran across the street to another house to report the sexual misconduct. And subsequent to that Angela was informed by the children what had happened, and Grandma Pat Reyna was also informed what had happened. And that after the incident was discussed amongst the adults and the children, [the victim] would testify that it did not happen, and that the allegation was false and no charges were filed against Mr. Miorga. The witnesses that also would testify similar to that testimony would be Pat Reyna, the grandmother; Les Gage, the, I guess you call step-father; Angela Rhea, [the victim]'s mother; Leslie Gage, [the victim]'s sister; and Joshua Gage, is [the victim]'s brother.

THE COURT: What you are saying is she would testify that she made an allegation of sexual abuse against a man in '95, and then admitted that it didn't happen, and she would testify it never happened?

[DEFENSE COUNSEL]: That's correct.

THE COURT: The purpose of bringing that in?

[DEFENSE COUNSEL]: Credibility issue at this point in time, Your Honor. She's making similar allegations later on against another gentleman. And I'm not offering it to prove the truth of the matter asserted. I'm not offering it to go into her sexuality. I'm offering it to demonstrate that as to prior sexual activities, that she made allegations that there were prior sexual allegations, and recanted.

THE COURT: State objects?

[PROSECUTOR]: Yes.

THE COURT: The objection is sustained.

The judge then ordered that the record of the hearing be sealed for appeal.

PROCEDURAL HISTORY

The jury found Reyna guilty and assessed punishment at 10 years in prison and a $10,000 fine. The judge followed the jury's recommendation to suspend the sentence and placed Reyna on community supervision for 10 years.

Reyna filed a motion for new trial arguing that "[e]vidence was withheld from the trier of fact in violation of the laws of the State of Texas." He did not elaborate but cited Kesterson v. State ⁽¹⁾ and Fox v. State ⁽²⁾ in support. The motion was overruled by operation of law.

On appeal, Reyna argued in his third point of error that the trial court erred "in regards to the matters of the hearing outside the presence of the jury." Within this point, he "urge[d] any and all points of error from the sealed hearing." He argued he was "denied a fair and impartial trial based upon the exclusion of evidence which was exculpatory in nature." And he argued that he was denied his right to "fully cross examine critical witnesses, including but not limited to the accusing witness." He offered no authority or argument in his brief, although he did state that he brought "to the attention of the trial court" Kesterson and Fox.

The Court of Appeals resolved these arguments in Reyna's favor in a single sentence: "Evidence that a complainant has made previous false allegations of sexual misconduct is admissible." ⁽³⁾ The court cited but did not discuss Hughes v. State ⁽⁴⁾ and Thomas v. State. ⁽⁵⁾

The State moved for rehearing and simultaneously filed a motion to view the sealed record. The Court of Appeals granted the motion to view the record but overruled the motion for rehearing.

We granted the State's petition for discretionary review on four grounds.

ANALYSIS

Sealed Record

The State argues in its first ground for review that the Court of Appeals erred in reversing the judgment without unsealing the record. The State contends that, since the in camera hearing never should have been sealed in the first place, the Court of Appeals should have unsealed the record and allowed the parties to review it and brief the issues accordingly. In lieu of that, the State argues, the Court of Appeals should have independently reviewed the record and determined whether any issues were preserved.

We agree that the appellate court should have unsealed the record. As the Court of Appeals recognized, there was no basis for sealing the record in this case. ⁽⁶⁾ Although the trial judge's rationale is not revealed in the record, the parties and the appellate court presume that the judge sealed the record pursuant to Evidence Rule 412(d). But as the Court of Appeals notes, that rule applies to cases of sexual assault, aggravated sexual assault, or an attempt to commit those offenses. ⁽⁷⁾ It does not on its face apply to a case of indecency with a child.

Since the record of the in camera hearing never should have been sealed, the appellate court should have unsealed it and allowed the parties to view it before briefs were filed. Nevertheless, after handing down its opinion, the Court of Appeals granted the State's motion to view the record, and both parties have had the opportunity to review it in filing briefs before this Court. We therefore proceed to the merits of the case.

Preservation of Error

In its second ground for review, the State complains that Reyna made only an evidentiary argument to the trial judge, but the appellate court reversed the conviction on constitutional grounds. Although the Court of Appeals did not mention the Confrontation Clause in its opinion, the cases that it cited both rely on the Confrontation Clause. The State contends that Reyna failed to preserve this constitutional argument in the trial court and, as a result, it should not be the basis for reversal on appeal.

Legal Background

At first blush, the State's argument appears to lack merit. We have held, and the Rules of Evidence make clear, that to preserve error in the exclusion of evidence, the proponent is required to make an offer of proof and obtain a ruling. ⁽⁸⁾ Since Reyna did both these things, he seems to have preserved error.

But a less common notion of error preservation comes into play in this case, although certainly not a novel one. Professors Goode, Wellborn and Sharlot refer to it as "party responsibility." They explain it this way:

To the question, which party has the responsibility regarding any particular matter, it is infallibly accurate to answer with another question: which party is complaining now on appeal? This is because in a real sense both parties are always responsible for the application of any evidence rule to any evidence. Whichever party complains on appeal about the trial judge's action must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the evidence rule in question and its precise and proper application to the evidence in question. ⁽⁹⁾

The basis for party responsibility is, among other things, Appellate Rule 33.1. It provides that as a prerequisite to presenting a complaint for appellate review, the record must show that the party "stated the grounds for the ruling that [he] sought from the trial court with sufficient specificity to make the trial court aware of the complaint." ⁽¹⁰⁾ So it is not enough to tell the judge that evidence is admissible. The proponent, if he is the losing party on appeal, must have told the judge why the evidence was admissible.

We recently discussed this notion in Martinez v. State. ⁽¹¹⁾ There, the defendant moved to suppress oral statements due to the State's failure to comply with Art. 20.17. The State argued for the first time on appeal that Art. 20.17 did not apply. We concluded that the State forfeited this argument by failing to bring it to the trial judge's attention. We explained that "both Texas Rule of Appellate Procedure 33.1 and Texas Rule of Evidence 103 are 'judge-protecting' rules of error preservation. The basic principle of both rules is that of 'party responsibility.'" ⁽¹²⁾ We recognized that "the party complaining on appeal (whether it be the State or the defendant) about a trial court's admission, exclusion, or suppression of evidence must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the evidence rule or statute in question and its precise and proper application to the evidence in question." ⁽¹³⁾ The issue, we said, "is not whether the appealing party is the State or the defendant or whether the trial court's ruling is legally 'correct' in every sense, but whether the complaining party on appeal brought to the trial court's attention the very complaint that party is now making on appeal." ⁽¹⁴⁾

Similarly, in Willover v. State, ⁽¹⁵⁾ the defendant sought to admit two videotaped interviews of the victim. At trial, "it [was] clear that, although [the defendant] did not actually recite the specific rule of evidence he was relying upon, [he] sought to admit the videotapes for impeachment purposes. [He] did not argue, nor was there any discussion at trial, that the tapes were not hearsay or that the videotapes were admissible under any exception to the hearsay rule other than Article 38.071 or for impeachment purposes." ⁽¹⁶⁾

On appeal, the defendant argued for the first time that the videotapes were not hearsay. We relied on the notion of "party responsibility" to reject this argument because "[i]n order to have evidence admitted under a hearsay exception, the proponent of the evidence must specify which exception he is relying upon." ⁽¹⁷⁾ It was up to the defendant, we said, and "not the trial court, to specify which exception to the hearsay rule he was relying upon or to specify how the evidence was not hearsay." ⁽¹⁸⁾

In some cases, we have applied the "party responsibility" theory without using those precise words. In Clark v. State, ⁽¹⁹⁾ the State presented the testimony of Dr. James Grigson that the defendant would be a future danger. The defendant sought at trial to introduce a letter and accompanying report which listed eleven individuals convicted of capital murder whose sentences had later been commuted or reduced. In several of those cases, Dr. Grigson had predicted that the individual would be a future danger. The trial court refused to admit the evidence. ⁽²⁰⁾

On appeal, the defendant argued that the excluded evidence was admissible to impeach Dr. Grigson and show that his prior future dangerousness predictions had turned out to be incorrect. But the defendant had not articulated this basis for admission at trial. At trial, he had argued the evidence was admissible to impeach statements that Dr. Grigson had made in Lubbock County. The State had objected that the impeachment went to a collateral matter, and the trial judge had agreed.

We rejected the defendant's argument on appeal because he "did not clearly articulate" that he wanted to admit the evidence to demonstrate Grigson's past mistakes in predicting future dangerousness. ⁽²¹⁾ We said that the trial judge "never had the opportunity to rule upon [the defendant's] appellate rationale." ⁽²²⁾ Since the defendant "did not sufficiently clearly expressly offer the evidence for the purpose which he now claims on appeal," that argument could not be raised on appeal. ⁽²³⁾

Finally, in Jones v. State, ⁽²⁴⁾ the defendant sought at trial to admit the grand jury testimony of a witness who asserted her Fifth Amendment privilege against self-incrimination and refused to testify. The State objected, claiming hearsay. We concluded that the defendant failed to preserve error because he never specified which portions of the witness's testimony he wanted to admit into evidence. ⁽²⁵⁾ We said:

The trial court need never sort through challenged evidence in order to segregate the admissible from the excludable, nor is the trial court required to admit only the former part or exclude only the latter part. If evidence is offered and challenged which contains some of each, the trial court may safely admit it all or exclude it all, and the losing party, no matter who he is, will be made to suffer on appeal the consequences of his insufficiently specific offer or objection. In this case, because the trial court chose to exclude the evidence, appellant is the party adversely affected by his own default. Because appellant failed to specify which portion of the transcript he intended to introduce into evidence, the court was presented with a proffer containing both admissible and inadmissible evidence. When evidence which is partially admissible and partially inadmissible is excluded, a party may not complain upon appeal unless the admissible evidence was specifically offered. ⁽²⁶⁾

Application

In this case, Reyna argued to the trial judge that the evidence should be admitted for "credibility." He said that he was "not offering it to prove the truth of the matter asserted" and "not offering it to go into her sexuality." Instead, he argued, "I'm offering it to demonstrate that as to prior sexual activities, that she made allegations that there were prior sexual allegations, and recanted."

Reyna did not cite to any rules of evidence, cases, or constitutional provisions. Reyna's references to "the truth of the matter asserted" reflect that he was arguing that the evidence was not hearsay under Evidence Rule 801(d). His claim that he was not offering it "to go into her sexuality" reflects his argument that the evidence should not be excluded under Evidence Rule 412(b). These arguments are both based on the Rules of Evidence. Reyna's reference to "credibility" could be a reference to either the Rules of Evidence or the Confrontation Clause.

Reyna told the trial judge that the purpose of admitting the evidence was to attack the victim's credibility, but he did not provide the basis for admitting the evidence. He could have been relying on the Rules of Evidence or the Confrontation Clause. It was up to the judge to discern some basis for admitting the evidence.

We have said that "[t]he purpose of requiring [an] objection is to give to the trial court or the opposing party the opportunity to correct the error or remove the basis for the objection." ⁽²⁷⁾ When a defendant's objection encompasses complaints under both the Texas Rules of Evidence and the Confrontation Clause, the objection is not sufficiently specific to preserve error. ⁽²⁸⁾ An objection on hearsay does not preserve error on Confrontation Clause grounds. ⁽²⁹⁾

Although this case involves a proffer of evidence rather than an objection, the same rationale applies. Reyna did not argue that the Confrontation Clause demanded admission of the evidence. Reyna's arguments for admitting the evidence could refer to either the Rules of Evidence or the Confrontation Clause. His arguments about hearsay did not put the trial judge on notice that he was making a Confrontation Clause argument. Because Reyna "did not clearly articulate" that the Confrontation Clause demanded admission of the evidence, the trial judge "never had the opportunity to rule upon" this rationale. ⁽³⁰⁾ As the losing party, Reyna must "suffer on appeal the consequences of his insufficiently specific offer." ⁽³¹⁾ Reyna did not do "everything necessary to bring to the judge's attention the evidence rule or statute in question and its precise and proper application to the evidence in question." ⁽³²⁾ The Court of Appeals erred in reversing Reyna's conviction on a ground that he did not present to the trial judge.

JUDGMENT

Because of our resolution of the State's first two grounds for review, we need not reach the remaining grounds. They are dismissed. We reverse the judgment of the Court of Appeals and reinstate the judgment of the trial court.

DATE DELIVERED: June 29, 2005

PUBLISH

1. 997 S.W.2d 290 (Tex. App. - Dallas 1999, no pet.)

2. 115 S.W.3d 550 (Tex. App. - Houston [14^th Dist.] 2002, pet. ref'd).

3.

Reyna v. State, No. 11-02-00232-CR (Tex. App. - Eastland, November 26, 2003) (not designated for publication).

4. 850 S.W.2d 260 (Tex. App. - Fort Worth 1993, pet. ref'd).

5. 669 S.W.2d 420 (Tex. App. - Houston [1

^st Dist.] 1984, pet. ref'd).

6.

Reyna, slip op. at 5.

7.

Id.

8.

Williams v. State, 937 S.W.2d 479, 489 (Tex. Crim. App. 1996); Green v. State, 840 S.W.2d 394, 407 (Tex. Crim. App. 1992); Stewart v. State, 686 S.W.2d 118, 122 (Tex. Crim. App. 1984); Tex. R. Evid. 103(a)(2).

9. 1 Stephen Goode,

et al., Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal § 103.2 (2d ed. 1993) (emphasis deleted).

10. Tex. R. App. P. 33.1(a)(1).

11. 91 S.W.3d 331 (Tex. Crim. App. 2002).

12.

Id. at 335.

13.

Id. at 335-36 (internal quotations omitted).

14.

Martinez, 91 S.W.3d at 336, citing State v. Mercado, 972 S.W.2d 75 (Tex. Crim. App. 1998).

15. 70 S.W.3d 841 (Tex. Crim. App. 2002).

16.

Id. at 844.

17.

Id. at 846 and n.4.

18.

Id. at 845-56.

19. 881 S.W.2d 682 (Tex. Crim. App. 1994).

20.

Id. at 694.

21.

Id.

22.

Id.

23.

Id.

24. 843 S.W.2d 487 (Tex. Crim. App. 1992).

25.

Id. at 492-93.

26.

Id.

27.

Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000).

28.

Cantu v. State, 939 S.W.2d 627, 634 (Tex. Crim. App. 1997).

29.

Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004).

30.

See Clark, 881 S.W.2d at 694.

31.

See Jones, 843 S.W.2d at 492.

32.

See Martinez, 91 S.W.3d at 335-36.