                                                                                ACCEPTED
                                                                           06-14-00133-CR
                                                                 SIXTH COURT OF APPEALS
                                                                      TEXARKANA, TEXAS
                                                                      2/10/2015 9:44:23 AM
                                                                           DEBBIE AUTREY
                                                                                    CLERK

                   No. 06-14-00133-CR

                                                           FILED IN
                                                    6th COURT OF APPEALS
                          IN THE                      TEXARKANA, TEXAS
                                                    2/10/2015 9:44:23 AM
                  COURT OF APPEALS                      DEBBIE AUTREY
                                                            Clerk

               FOR THE SIXTH SUPREME

            JUDICIAL DISTRICT OF TEXAS

                      TEXARKANA




              DAVID MICHAEL DOLLINS,

                         Appellant

                             V.

                 THE STATE OF TEXAS,

                         Appellee




              Appealed in Cause No. F-8840

    8th Judicial District Court of Franklin County, Texas


                 BRIEF FOR APPELLEE


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    By:/s/ Nicholas C. Harrison
      Nicholas C. Harrison
      Assistant District Attorney
      State Bar No 24062768
      P.O. Box 882
      Sulphur Springs, Texas 75483
      (903) 885-0641




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                            TABLE OF CONTENTS

TABLE OF CONTENTS                                 3

TABLE OF AUTHORITIES                              4

SUMMARY OF THE ARGUMENT                           5

ARGUMENT AND AUTHORITIES                          5

STANDARD OF REVIEW                                5

I.   Appellant failed to preserve error, if any   5

PRAYER FOR RELIEF                                 7

CERTIFICATE OF SERVICE                            9




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                                       TABLE OF AUTHORITIES
Cases
Tillman v. State, 354 S.W.3d 425, 435 (Tex.Crim.App.2011) ...................................5
Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App.2010) .................................5
Virts v. State, 739 S.W.2d 25 (Tex.Crim.App.1987) .................................................6
Mumphrey v. State, 155 S.W.3d 651 (Tex.App.- Texarkana 2005) ...........................6
Rules
TRE 103; ....................................................................................................................6




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                        SUMMARY OF THE ARGUMENT

Appellant failed to preserve any error regarding the cross-examination of Deputy

Ricks.

                        ARGUMENT AND AUTHORITIES

Appellant presents a sole issue for review: Did the trial court err in prohibiting

Appellant from cross-examining Deputy Ricks about whether she obtained a

written statement from the Victim.

                             STANDARD OF REVIEW

         Matters concerning the admission of evidence are reviewed for an abuse of

discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex.Crim.App.2011). A trial

court abuses its discretion only if its decision “lies outside the zone of reasonable

disagreement.” Martinez v. State, 327 S.W.3d 727,736 (Tex.Crim.App.2010).

         I.    Appellant failed to preserve error, if any.

         Counsel for Appellant asked Deputy Ricks, “Now, did you ask [the Victim]

for a written statement?” The State objected to relevance and the trial court

sustained the objection. Counsel for Appellant then moved on to the next issue,

asking whether Deputy Ricks recovered a knife from the crime scene. (R.R. Vol. 4

pg 50).
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      Texas Rule of Evidence 103(a)(2) requires a party to make known to the

court by offer, the substance of excluded testimony, unless the substance of the

testimony is apparent from the context. Appellant failed to make an offer of proof,

and the substance of Appellant’s intended line of questioning cannot be discerned

from the record.

      In the context of excluded cross-examination, Texas law recognizes two

categories: situations in which a formal offer of proof is necessary to preserve error

and situations in which less than a formal offer of proof will preserve error. Virts v.

State, 739 S.W.2d 25 (Tex. Crim. App. 1987). When a defendant seeks to elicit

certain, specific responses from a state’s witness but is precluded by the trial court

from doing so, a formal offer of proof is required. But when a defendant is not

permitted to question a state’s witness about a certain general subject that might

affect the witness’ credibility, less than a formal offer of proof will preserve error.

Virts. This law was also applied by this Court of Appeals in Mumphrey v. State,

155 S.W.3d 651 (Tex.App.-Texarkana 2005).

      In this case, Appellant was seeking to elicit certain, specific responses from

Deputy Ricks. Appellant asserts the following in his brief:

      “Here, the defense strategy was to develop a reasonable doubt regarding two

      elements of the offense required by the indictment and Court’s Charge. First,

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      that the arresting officer, Deputy Ricks, did not have probable cause to arrest

      Appellant. Second, that the probable cause to arrest was sufficient only for

      misdemeanor Assault, not felony Aggravated Assault, by eliminating the

      probable cause that a knife was used or exhibited during the Assault.”

      (Appellant’s Brief p. 15)

      Appellant was seeking to elicit facts that would diminish probable cause as

to the arrest for Aggravated Assault, specifically whether the Deputy took a written

statement from the Victim. Appellant was not assailing Deputy Ricks’ credibility

in general. Appellant’s somewhat complex two-pronged purpose behind the

prohibited cross-examination is further proof that the substance of the excluded

testimony was not apparent from context. It should also be noted that the “general

subject” of probable cause was permitted to be fully developed by Appellant in the

subsequent line of questioning. (R.R. Vol. 4 pg 51-53).

      Because Appellant did not make an offer of proof of the questions Appellant

would have asked and the answers expected had such questioning in the presence

of the jury been permitted, Appellant failed to preserve error. Virts, 739 S.W.2d at

29.

                             PRAYER FOR RELIEF



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The State requests that this Court AFFIRM Appellant’s conviction.




                                  By:/s/ Nicholas C. Harrison
                                     Nicholas C. Harrison
                                     Assistant District Attorney
                                     State Bar No 24062768
                                     P.O. Box 882
                                     Sulphur Springs, Texas 75483
                                     (903) 885-0641




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                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing

instrument was forwarded to counsel for Appellant, Martin Braddy, on this the 10th

day of February, 2015.

                                   By:/s/ Nicholas C. Harrison
                                      Nicholas C. Harrison
                                      Assistant District Attorney




                         CERTIFICATE OF WORD COUNT

      I certify that this document contains 836 words according to the counting

tool in the program used to generate this document.

                                   By:/s/ Nicholas C. Harrison
                                      Nicholas C. Harrison
                                      Assistant District Attorney




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