Opinion
No. 05-07-00535-CR
Opinion Filed April 7, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-73696-UW.
Before Justices WHITTINGTON, RICHTER, and MAZZANT.
MEMORANDUM OPINION
Jim Cleveland Windham was convicted of robbery and sentenced to thirty years confinement, enhanced. See Tex. Penal Code Ann. §§ 12.42(b), 29.02(a)(2) (Vernon 2003 Supp. 2007). On appeal, Windham asserts in two issues that the court abused its discretion in granting the State's motion to exclude the victim's prior criminal record and the judgment incorrectly reflects he was convicted of a state jail felony. Finding error in the judgment, we modify the judgment and affirm as modified. Windham's first issue stems from the State's pretrial motion in limine to exclude evidence of the victim's 1991 voluntary manslaughter conviction. The victim served five years in prison for this conviction and was released in 1996, over ten years prior to Windham's April 2007 trial. The State, relying on rule 609(b) of the Texas Rules of Evidence, sought to prevent Windham from alluding to or mentioning this impeachment evidence at trial. See Tex. R. Evid. 609(b) (evidence of felony conviction or conviction for crime of moral turpitude not admissible if period of more than ten years has elapsed since date of conviction or release of witness from confinement, whichever is later, unless court determines, in interest of justice, that probative value of impeachment evidence substantially outweighs its prejudicial effect). The trial court granted the State's motion, and Windham now complains the court's ruling was erroneous because the court failed to consider whether the probative value of the evidence substantially outweighed its prejudicial effect. See id. In response, the State argues Windham did not preserve error. We agree with the State. A pretrial ruling on a motion to exclude evidence is a preliminary ruling only and, as such, is subject to reconsideration throughout trial and insufficient to preserve error on appeal. Geuder v. State, 115 S.W.3d 11, 14-15 (Tex.Crim.App. 2003); Warner v. State, 969 S.W.2d 1, 2 (Tex.Crim.App. 1998). To preserve error regarding the exclusion of evidence, the complaining party must offer the evidence at trial. See Tex. R. Evid. 103(a)(2); Roberts v. State, 220 S.W.3d 521, 532 (Tex.Crim.App.), cert. denied, 128 S.Ct. 282 (2007); Warner, 969 S.W.2d at 2. The record, here, reflects Windham did not do that. Windham did not seek reconsideration of the ruling when the State called the victim to the stand and did not seek to admit the evidence of conviction during his examination of the victim or at any time during trial. Because Windham failed to offer the evidence at trial, no error is preserved. See Tex. R. Evid. 103(a)(2); Roberts, 220 S.W.3d at 532; Warner, 969 S.W.2d at 2. We resolve Windham's first issue against him. In his second issue, Windham argues the judgment incorrectly reflects he was convicted of a state jail felony. The State agrees, as do we. Section 29.02(b) of the Texas Penal Code specifically provides that robbery is a second degree felony. Tex. Penal Code Ann. § 29.02(b). Accordingly, we sustain this issue and modify the judgment to reflect Windham was convicted of a second degree felony. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993). As modified, we affirm the trial court's judgment.