ROBERT RAMIREZ v. THE STATE OF TEXAS (2010)

MEMORANDUM OPINION

Opinion By Justice Richter

A jury convicted appellant of aggravated sexual assault of a child younger than fourteen years and sentenced him to fifteen years' imprisonment.   In a single issue on appeal, appellant argues the trial court abused its discretion by excluding some of the complainant's treatment records.   Concluding the issue has not been preserved for our review, we affirm the trial court's judgment.   The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit our recitation of the facts.   We issue this memorandum opinion pursuant to Tex.R.App. P. 47.4 because the law to be applied in this case is well settled.

Appellant pled not guilty to sexually assaulting his 12 year-old stepdaughter.   During a hearing outside the presence of the jury regarding the admissibility of several prospective defense witnesses' testimony, appellant's trial counsel stated that he intended to call the custodian of records to enter the complainant's treatment records into evidence.   The trial court ruled that the records were not admissible under rule 608(b), or alternatively, under rule 403.   The trial court further stated “it is confusing for the jury and also being an unnecessary rabbit trail and cumulative of other testimony.”   Appellant's counsel indicated that he would like to make an offer of proof and include the evidence in the record for record purposes.   The trial court allowed the inclusion of the records, and counsel made the following offer of proof:

[Appellant] makes this offer of proof and would offer the affidavit and medical records from MetroCare Services.   Affidavit signed by Linda Thompson.

When the trial court asked counsel if he had anything further, counsel replied “[n]o, that is it.”

In a single issue on appeal, appellant asserts the trial court abused it discretion in denying the admission of the evidence because the medical records were admissible to show the complainant's bias and motive, under the rule of optional completeness, and to rebut an implied charge of recent fabrication.   Appellant also maintains the evidence was not properly excluded under Tex.R. Evid. 403.   Appellant fails to address, however, how these issues may have been preserved for our review.

Rule 103(a)(2) provides that “[e]rror may not be predicated upon a ruling which ․ excludes evidence unless a substantial right of a party is affected, and ․ the substance of the evidence was made known to the court by offer, or was apparent from the context within which the questions were asked.”   Tex.R. Evid. 103(a)(2).   When, as here, the offer of proof is in the form of a statement, the proffer “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.”   See Warner v. State, 969 S.W.2d 1, 2 (Tex.Crim.App.1998).   An offer of proof serves two purposes.   First, it enables an appellate court to determine whether the exclusion was erroneous and harmful.   Second, it allows the trial judge to reconsider his ruling in light of the actual evidence.   See Mays v. State, 285 S.W.3d 884, 890 (Tex.Crim.App.2009) (citations omitted).

Here, appellant did not summarize the evidence offered in his proffer, nor did he make any statement concerning the relevance of the evidence he sought to have the trial court admit.   None of the arguments appellant now asserts on appeal were made to the trial court.   As a result, the proffer was not sufficient to permit the trial judge to reconsider his ruling, or to preserve the issue for our review.   See Tex.R.App. P. 33(a)(1)(A);  Tex.R. Evid. 103(a)(2).   Appellant's sole issue is overruled.   The judgment of the trial court is affirmed.

MARTIN RICHTER JUSTICE