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Wilson v. State

Court of Appeals Fifth District of Texas at Dallas
Jul 16, 2019
No. 05-18-00131-CR (Tex. App. Jul. 16, 2019)

Opinion

No. 05-18-00131-CR

07-16-2019

JEREMY DALE WILSON, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 366th Judicial District Court Collin County, Texas
Trial Court Cause No. 366-80583-2017

MEMORANDUM OPINION

Before Justices Bridges, Partida-Kipness, and Carlyle
Opinion by Justice Bridges

Jeremy Dale Wilson appeals his sexual assault of a child conviction. A jury convicted appellant and sentenced him to four years' confinement. In a single issue, appellant argues the trial court erred when it denied cross examination of the State's forensic interviewer. We affirm the trial court's judgment.

In February 2017, appellant was charged by indictment with sexual assault of his fifteen-year-old stepdaughter, S.S. At trial, appellant testified he sexually assaulted S.S. The State presented evidence that DNA testing of S.S.'s underwear determined appellant could not be excluded as a contributor of the DNA. During defense counsel's cross examination of the forensic interviewer, McKenzie McIntosh, the following exchange occurred:

[Defense Counsel]: [Appellant] was the stepdad, stepfather to [S.S.]?

McIntosh: Yes.
[Defense Counsel]: In fact, what actually was said or expressed by [S.S.] was not that she loved and cared for [appellant], quite the opposite, isn't it true what was expressed by [S.S.] is that [appellant] knows she does not want a stepdad?

McIntosh: She did say something, yes, she said something.

[Defense Counsel]: You didn't tell the jury that, did you?

McIntosh: I wasn't asked.

[Defense Counsel]: Yes, you were asked. You started commenting on how much she loved and cared for him, you neglected to tell them, oh, also, [S.S.] said she didn't want a stepdad?

[Prosecutor]: Objection, argumentative.

[The Court]: Sustained.

[Defense Counsel]: Isn't it true [S.S.] said [appellant] has asked to adopt her and she blows off his request?

McIntosh: I can look real quick.

[Defense Counsel]: Sure.

McIntosh: I do remember something about that, and she was saying she had promised her dad she would keep his last name until she married.
The jury found appellant guilty of sexual assault of a child, and this appeal followed.

In a single issue, appellant argues the trial court committed non-structural Constitutional error when it denied cross examination of the State's forensic interviewer. Specifically, appellant complains the trial court improperly sustained the State's "argumentative" objection when the interviewer was asked if [S.S.] conceded she did not want a stepdad.

In order to preserve alleged error for appellate review, a party must make a timely objection to the trial court or make some request or motion apprising the trial court what the party seeks by the line of questioning, thereby giving the trial court an opportunity to remedy any purported error. Dollins v. State, 460 S.W.3d 696, 698 (Tex. App.—Texarkana 2015, no pet.); see TEX. R. APP. P. 33.1(a). Failure to properly object and preserve a complaint waives any appellate review of the matter. See Vidaurri v. State, 49 S.W.3d 880, 885-86 (Tex. Crim. App. 2001). In order to preserve error regarding improperly excluded evidence, a party must timely object, obtain a ruling from the trial court (or object to the trial court's refusal to rule), and prove the substance of the excluded evidence via an offer of proof. See TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a); Roberts v. State, 220 S.W.3d 521, 532 (Tex. Crim. App. 2007). An explicit objection is not necessary if "the specific grounds" of the complaint are "apparent from the context" of the trial proceeding. TEX. R. APP. P. 33.1(a)(1).

However, in the exchange quoted above, appellant asked for nothing from the trial court and made no offer of proof to the trial court explaining what he was attempting to achieve in his cross examination of McIntosh, but which he was prohibited from pursuing by the trial court's ruling. See Dollins, 460 S.W.3d at 699. "Appellant may not complain on appeal of the exclusion of testimony in the absence of an offer of the testimony and a ruling by the trial court excluding it from evidence." Barnard v. State, 730 S.W.2d 703, 718 (Tex. Crim. App. 1987). If appellant claims he was prevented from cross examining McIntosh about whether or not S.S. "want[ed] a stepdad," he was obligated to "make an offer of proof of the questions he would have asked and the answers he might have received had he been permitted to question the witness in the presence of the jury." Koehler v. State, 679 S.W.2d 6, 9 (Tex. Crim. App. 1984). Under these circumstances, we conclude appellant has failed to preserve his complaint for our review. See TEX. R. APP. P. 33.1(a); Dollins, 460 S.W.3d at 699. We overrule appellant's issue.

We affirm the trial court's judgment.

/David L. Bridges/

DAVID L. BRIDGES

JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b) 180131F.U05

JUDGMENT

On Appeal from the 366th Judicial District Court, Collin County, Texas
Trial Court Cause No. 366-80583-2017.
Opinion delivered by Justice Bridges. Justices Partida-Kipness and Carlyle participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered July 16, 2019


Summaries of

Wilson v. State

Court of Appeals Fifth District of Texas at Dallas
Jul 16, 2019
No. 05-18-00131-CR (Tex. App. Jul. 16, 2019)
Case details for

Wilson v. State

Case Details

Full title:JEREMY DALE WILSON, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals Fifth District of Texas at Dallas

Date published: Jul 16, 2019

Citations

No. 05-18-00131-CR (Tex. App. Jul. 16, 2019)