                           NUMBER 13-18-00467-CR

                              COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


JOE DAVID CUELLAR,                                                         Appellant,

                                            v.

THE STATE OF TEXAS,                                                        Appellee.


                      On appeal from the 24th District Court
                           of Victoria County, Texas.


                           MEMORANDUM OPINION

  Before Chief Justice Contreras and Justices Benavides and Longoria
           Memorandum Opinion by Chief Justice Contreras
          Appellant Joe David Cuellar appeals from the revocation of his community

supervision for three separate offenses. By one issue, appellant argues that the trial court

erred when it limited his examination of a defense witness at the revocation hearing. We

affirm.
                                          I.   BACKGROUND

       In January 2017, appellant was indicted for: one count of engaging in organized

criminal activity, a first-degree felony, see TEX. PENAL CODE ANN. § 71.02(a)(1); one count

of burglary of a habitation with intent to commit a felony, a first-degree felony, see id.

§ 30.02(d); and two counts of aggravated assault, a second-degree felony.                         See id.

§ 22.02(a)(2).

       Appellant entered into a plea agreement with the State, pleaded guilty to engaging in

organized criminal activity, burglary of a habitation with intent to commit a felony, and to one

count of aggravated assault. The State agreed to abandon one count of aggravated assault.

The trial court accepted the plea agreement and: placed appellant on seven years of

deferred adjudication community supervision for the offense of engaging in organized

criminal activity; found appellant guilty of burglary of a habitation and sentenced him to ten

years’ imprisonment, suspended for seven years of community supervision, along with a

$3,000 fine; and placed appellant on seven years of deferred adjudication community

supervision for the offense of aggravated assault.

       In April 2018, the State moved to revoke appellant’s community supervision for the

burglary of a habitation conviction and to adjudicate guilt for the two other offenses.                For

each of the three offenses for which appellant was on community supervision, the State

alleged appellant violated the conditions of his supervision by: committing a new offense of

assault,1 failing to pay $120 in court costs, failing to pay $600 in supervision fees to the

community supervision department, failing to pay a $10 crime stopper fee, and associating

“with anyone who has weapons of any description.” At the hearing, however, the State only



       1  The State pleaded in its motions that appellant committed aggravated assault with a deadly weapon
but revised the allegation to one of ordinary assault at the hearing on the motions.
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presented evidence of appellant’s alleged new offense of assault and did not present

evidence supporting the other violations it alleged in the motions. Likewise, the trial court

only asked appellant whether he pleaded true or not true to the assault allegation; appellant

pleaded not true.

       The State presented testimony from multiple officers who responded to the incident

regarding the assault. In general, the officers testified that they responded to a disturbance

and learned that an individual had suffered injuries after being shot by appellant with a BB

gun. The complainant testified that appellant shot him with a BB gun and provided evidence

of a feud existing between him and appellant.

       As his sole defense witness, appellant called his father, Vicente Morales, and the

following exchange occurred:

       [Defense Counsel]:           Okay. Did you or your family ever have to call law
                                    enforcement on [the complainant]?

       [State]:                     State is going to object to the relevance of that
                                    question.

       [The Court]:                 Objection is sustained. You don’t have to answer
                                    that.

       [Morales]:                   Okay.

       [Defense Counsel]:           Pass the witness, Judge.

Appellant did not make an offer of proof or file a bill of exception.

       The trial court found the allegation that appellant committed a new offense of assault

to be true. Accordingly, it adjudicated guilt for the offense of organizing in criminal activity

and sentenced appellant to fifteen years’ imprisonment plus court costs; revoked his

community supervision for burglary of a habitation with intent to commit a felony and

sentenced appellant to ten years’ imprisonment; and adjudicated guilt as to the aggravated



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assault with a deadly weapon charge and sentenced appellant to fifteen years’ imprisonment

plus court costs. This appeal followed.

                                       II.   DISCUSSION

       We review a trial court’s decision to exclude evidence for an abuse of discretion.

Bryant v. State, 534 S.W.3d 471, 472 (Tex. App.—Corpus Christi–Edinburg 2017, pet. ref’d).

A trial court abuses its discretion if its decision is so clearly wrong as to lie outside the zone

of reasonable disagreement. Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008).

       To preserve error in the exclusion of evidence, the proponent is required to make an

offer of proof and obtain a ruling. TEX. R. EVID. 103(a)(2); Reyna v. State, 168 S.W.3d 173,

176 & n.8 (Tex. Crim. App. 2005); see TEX. R. APP. P. 33.2 (prescribing bills of exception).

The complaining party’s offer of proof must set forth the substance of the proffered evidence.

Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009) (citing TEX. R. EVID. 103(a)(2)).

Error may not be predicated upon a ruling which excludes evidence unless a substantial

right of the party is affected and the substance of the evidence was made known to the court

by offer of proof or was apparent from the context within which questions were asked. TEX.

R. EVID. 103(a)(2). “The offer of proof may consist of a concise statement by counsel, or it

may be in question-and-answer form.” Mays, 285 S.W.3d at 889. “If 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

trial court can determine whether the evidence is relevant and admissible.” Mata v. State,

517 S.W.3d 257, 264 (Tex. App.—Corpus Christi–Edinburg 2017, pet. ref’d). “The primary

purpose of an offer of proof is to enable an appellate court to determine whether the

exclusion was erroneous and harmful.” Mays, 285 S.W.3d at 890. “A secondary purpose

is to permit the trial judge to reconsider his ruling in light of the actual evidence.” Id.

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       Here, appellant argues that the trial court “improperly limited the scope of [his] cross-

examination of a witness” and that “error was preserved”; however, appellant presents no

argument explaining how error was preserved. Our review of the record shows that, after

the trial court sustained the State’s objection to appellant’s question to Morales, appellant

did not ask Morales any other questions and did not make an offer of proof or file a bill of

exception. Without an offer of proof, we decline to speculate about the nature of the

excluded testimony. Mata, 517 S.W.3d at 265. Therefore, we conclude that appellant’s

complaint was not preserved for appellate review. See TEX. R. APP. P. 33.2; Mata, 517

S.W.3d at 265.

       Finally, appellant states in his brief “[a]lternatively, if the court finds that error was not

properly preserved, then appellant argues that Defense counsel was ineffective in failing to

assert the 6th Amendment right of confrontation in response to the state’s objection, or for

making an offer of proof.”      However, apart from this sentence, appellant presents no

argument and cites no authority in support of his contention that defense counsel was

ineffective. Accordingly, we conclude this argument has been inadequately briefed and has

been waived. See TEX. R. APP. P. 38.1.

       We overrule appellant’s sole issue.

                                      III.   CONCLUSION

       We affirm the trial court’s judgment.


                                                                   DORI CONTRERAS
                                                                   Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
18th day of July, 2019.

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