                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-15-00416-CR


JOSHUA GOLLIDAY                                                           APPELLANT

                                           V.

THE STATE OF TEXAS                                                               STATE


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           FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
                       TRIAL COURT NO. 1379815D

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                         DISSENTING OPINION ON
                       EN BANC1 RECONSIDERATION
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      The requirements of preserving a complaint for our review are settled and

uncomplicated: a party must make a timely request, objection, or motion in the

trial court that states the grounds for the desired ruling with sufficient specificity to

make the trial court aware of the complaint, and the trial court must rule on that


      1
          See Tex. R. App. P. 49.7.
request, objection, or motion (or the complaining party must object to a refusal to

rule).    Tex. R. App. P. 33.1(a).   This preservation rule generally applies to

constitutional arguments, and it particularly applies to a defendant’s complaint

that a trial court denied the defendant an opportunity to present a defense. See

Garza v. State, 435 S.W.3d 258, 260–61 (Tex. Crim. App. 2014); Schumm v.

State, 481 S.W.3d 398, 399 (Tex. App.—Fort Worth 2015, no pet.) (“Although

Appellant . . . [argues] that a defendant is entitled to testify and to present a

defense, he directs us to no place in the record where he raised a constitutional

basis for admitting the excluded evidence. He has therefore not preserved his

due process claim or any other constitutional claim.”). The preservation rule

serves two purposes: “(1) it informs the judge of the basis of the objection and

affords him an opportunity to rule on it, and (2) it affords opposing counsel an

opportunity to respond to the complaint.” Douds v. State, 472 S.W.3d 670, 674

(Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1461 (2016). Serving the first

purpose, the rule requires a party to inform the trial court “what he wants and why

he feels himself entitled to it clearly enough for the judge to understand him.”

Vasquez v. State, 483 S.W.3d 550, 554 (Tex. Crim. App. 2016) (emphasis

added).

         In this appeal, appellant Joshua Golliday contends that the trial court

violated his constitutional rights of confrontation, due process, and the ability to

present a defense by restricting his cross-examination of two witnesses. He did

not raise those complaints at any point in the trial court. Thus, the principles of


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preservation require us to conclude that he forfeited the complaints. Indeed, our

own cases compel this result. Because the majority instead sustains appellant’s

first two points and reverses his sexual assault conviction on arguments that he

presents for the first time in this court, I must dissent.

      In appellant’s first point, he argues that the trial court violated his

constitutional rights of confrontation and due process by restricting his cross-

examination of the complainant concerning her outpatient and inpatient treatment

at “Millwood,” along with other matters. At the end of appellant’s questioning of

the complainant outside of the jury’s presence, the following exchange occurred:

             [DEFENSE COUNSEL]: Judge, we would submit that all of
      this testimony is relevant and should come before the jury so the jury
      can get the whole picture of the situation. So . . . we’d like to ask
      these questions in front of the jury.

             [THE STATE]: Your Honor, we’d object as hearsay. Also, it is
      not relevant to anything related to the elements in this case. Also, it
      should not be admissible under 404. Argue none of it should be
      admissible.

             THE COURT: Sorry. I didn’t hear that last part.

             [THE STATE]: Under 404, it should not be admissible. And
      also, additionally, I stated -- I believe it’s hearsay and not relevant.

             THE COURT: I sustain the objection.

      In his second point, appellant contends that the trial court violated his

constitutional rights of confrontation and due process by limiting his cross-

examination of Jill Zuteck, the complainant’s sexual assault nurse examiner.

During appellant’s cross-examination of Zuteck, the following exchange occurred:




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              [DEFENSE COUNSEL]: The State has asked this witness
      about her report as to the past medical history given to her by the
      victim, and she repeated several things about the patient’s history
      that was given to her by [the complainant]. Included in that report
      and part of the past medical history is that she was taking Xanax
      and Zoloft and that she had been suffering from anxiety as a current
      condition and also that she had a chronic problem with herpes. That
      is all in the medical report.

             . . . So I think the State has opened the door to discussing the
      rest of the medical history.

            THE COURT: And specifically what are you trying to get into?

           [DEFENSE COUNSEL]: The fact that she -- all of it, Your
      Honor. It’s on the --

             THE COURT: Let me hear it for the record. What is it you’re
      trying to get into?

             [DEFENSE COUNSEL]: That [the complainant] was taking
      Xanax and Zoloft, that she had current problems with anxiety, and
      that she had a chronic problem of herpes.

            THE COURT: Response?

            [THE STATE]: Yes, Your Honor.

            ....

            I think they’re trying to elaborate on something that wasn’t
      asked of this witness. And besides that, they’re still trying to get into
      404 information, relevance of this information, other than to basically
      smear this victim’s character, which isn’t acceptable at this time.
      That violates 404. So we continue our objections. We do not
      believe the door has been opened.

      After this exchange, the trial court heard brief testimony from Zuteck

outside of the jury’s presence concerning the medications the complainant had

taken, the complainant’s problems with anxiety, and the complainant’s herpes

condition. At the end of the testimony, appellant urged the trial court to allow


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Zuteck to testify concerning the same facts to the jury, contending that the

testimony was “relevant to explaining some of [the complainant’s] behavior that

evening.” The State contended that the testimony was “not relevant and still

goes to 404.” The trial court sustained the State’s objection to the testimony.

      On appeal, appellant contends that the trial court’s decisions to sustain the

State’s objections to the complainant’s and to Zuteck’s testimony were erroneous

because the decisions did not allow the jury to fairly and fully evaluate the

complainant’s credibility or allow him to present his defensive theory.       Citing

Hammer v. State, he emphasizes that the constitution is “offended if the state

evidentiary rule would prohibit him from cross-examining a witness . . . to such an

extent that he could not present a vital defensive theory.” 296 S.W.3d 555, 562–

63 (Tex. Crim. App. 2009).

      The constitutional right to a meaningful opportunity to present a defense is

subject to forfeiture if not raised in the trial court. Anderson v. State, 301 S.W.3d

276, 280 (Tex. Crim. App. 2009).        Thus, to preserve an argument that the

exclusion of defensive evidence violates constitutional principles, a defendant

must present that contention in response to the State’s objection to the evidence

in the trial court. Reyna v. State, 168 S.W.3d 173, 174 (Tex. Crim. App. 2005)

(“[Reyna] attempted to introduce evidence which the trial judge excluded. He did

not argue that the Confrontation Clause demanded admission of the evidence,

but the Court of Appeals reversed the conviction on these grounds. We conclude

that the appellate court erred because Reyna, as the proponent of the evidence,


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was required to offer the evidence for its admissible purpose, and he did not do

so.”).       Appellant did not present constitutional arguments in response to the

State’s objections, so he forfeited those arguments. See id.

         The majority appears to rely on two theories to hold that appellant

preserved his constitutional complaints. First, relying on rule of evidence 103,2

the majority appears to conclude that because appellant was the proponent of

the excluded evidence, he needed only make an offer of proof, which served the

purpose of informing the trial court what he wanted to introduce,3 and needed not

provide constitutional grounds for the admission of the evidence, which would

have informed the trial court why he wanted to introduce it. See Majority Op. at

9–11.

         The court of criminal appeals rejected this exact argument in Reyna. 168

S.W.3d at 176–80. There, the State charged Reyna with indecency with a child,

and at trial, after the State questioned the complainant, Reyna sought to

introduce evidence of the complainant’s prior false allegation of sexual assault.

         2
             See Tex. R. Evid. 103.
         3
             The majority writes,

                Appellant did exactly what he was supposed to do. He told
         the trial court clearly what evidence he wanted the jury to hear, the
         prosecution objected, and the trial court sustained the objections,
         thereby holding that Appellant could not present his impeachment
         evidence before the jury. He therefore preserved his complaints
         about the exclusion of evidence.

Majority Op. at 11 (emphasis added).


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Id. at 174. Reyna made an offer of proof, informing the trial court what the

complainant and other witnesses would likely testify to concerning that prior

allegation. Id. at 174–75. The State objected to the admission of the evidence,

and Reyna did not offer a constitutional basis for its admission. Id. at 175. On

appeal from his conviction, Reyna argued that he had been denied the

constitutional right of cross-examination. Id. The State argued that Reyna had

not preserved that complaint. Id. at 176. The court of criminal appeals held that

the complaint was not preserved and reasoned,

             At first blush, the State’s argument appears to lack merit. We
      have held, and [rule of evidence 103] make[s] clear, that to preserve
      error in the exclusion of evidence, the proponent is required to make
      an offer of proof and obtain a ruling. Since Reyna did both these
      things, he seems to have preserved error.

            But a less common notion of error preservation comes into
      play in this case, although certainly not a novel one. Professors
      Goode, Wellborn and Sharlot refer to it as “party responsibility.”
      They explain it this way:

            To the question, which party has the responsibility
            regarding any particular matter, it is infallibly accurate to
            answer with another question:              which party is
            complaining now on appeal? This is because in a real
            sense both parties are always responsible for the
            application of any evidence rule to any evidence.
            Whichever party complains on appeal about the trial
            judge’s action must, at the earliest opportunity, have
            done everything necessary to bring to the judge’s
            attention the evidence rule in question and its precise
            and proper application to the evidence in question.

            The basis for party responsibility is, among other things,
      Appellate Rule 33.1. . . . [I]t is not enough to tell the judge that
      evidence is admissible. The proponent, if he is the losing party on
      appeal, must have told the judge why the evidence was admissible.


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            ....

            Although this case involves a proffer of evidence rather than
      an objection, the same rationale applies. Reyna did not argue that
      the Confrontation Clause demanded admission of the evidence.
      Reyna’s arguments for admitting the evidence could refer to either
      the Rules of Evidence or the Confrontation Clause. His arguments
      about hearsay did not put the trial judge on notice that he was
      making a Confrontation Clause argument. . . . The Court of Appeals
      erred in reversing Reyna’s conviction on a ground that he did not
      present to the trial judge.

Id. at 176–80 (emphasis added) (footnotes and citations omitted).

      Following Reyna’s lead, this court—including in opinions written by the

honorable author of the majority opinion in this appeal—has correctly held on

many occasions that when a defendant offers evidence and the State objects,

the defendant must then propose constitutional grounds for admission to

preserve constitutional complaints for appeal. See, e.g., Schumm, 481 S.W.3d

at 399 (Dauphinot, J.); Smallwood v. State, 471 S.W.3d 601, 614 (Tex. App.—

Fort Worth 2015, pet. ref’d) (op. on reh’g) (Dauphinot, J.) (“[Appellant] did not

sustain his burden of explaining to the trial court . . . why . . . testimony was

admissible . . . under a constitutional provision.       We therefore overrule

Appellant’s fourth and fifth issues.”); Taylor v. State, No. 02-11-00037-CR, 2012

WL 662373, at *3 (Tex. App.—Fort Worth Mar. 1, 2012, pet. ref’d) (mem. op., not

designated for publication) (Dauphinot, J.) (citing Reyna to hold that

constitutional complaints were not preserved and stating that “the party must, in

addition to showing the trial court what the actual testimony would be, explain

why the ruling is erroneous” (emphasis added)). Honorable justices joining the


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majority opinion in this appeal have joined (and in some cases authored) similar

opinions to the three cited above. See, e.g., Harper v. State, No. 02-15-00374-

CR, 2016 WL 4045203, at *5 (Tex. App.—Fort Worth July 28, 2016, no pet.)

(mem. op., not designated for publication); Gonzalez v. State, No. 02-14-00229-

CR, 2015 WL 9244986, at *12 (Tex. App.—Fort Worth Dec. 17, 2015, pet. ref’d)

(mem. op., not designated for publication), cert. denied, 137 S. Ct. 169 (2016);

Chavezcasarrubias v. State, No. 02-14-00418-CR, 2015 WL 6081502, at *3 (Tex.

App.—Fort Worth Oct. 15, 2015, no pet.) (mem. op., not designated for

publication). The majority opinion does not offer an adequate basis for overruling

these precedential decisions or for disregarding the binding holding in Reyna.

      Second, the majority appears to hold that if appellant was required to raise

constitutional complaints in the trial court to preserve them for appeal, he did so

by merely stating that he offered the evidence to present “the rest of the story”4

and to allow the jury to “get the whole picture.” Majority Op. at 11–12. These

comments, however, were insufficient to make the trial court and the State aware

that appellant was raising constitutional complaints, as rule 33.1(a)(1)(A)

requires. See Tex. R. App. P. 33.1(a)(1)(A).

      In Reyna, the court held that when a trial court excludes a defendant’s

offered evidence and the defendant’s rationale for admitting the evidence is

      4
        Appellant’s “rest of the story” comment was not made during his attempt
to introduce the excluded evidence. Rather, the comment was made during
appellant’s opening statement to the jury, which occurred after the challenged
rulings and after the State rested.


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unclear, the defendant must “suffer on appeal the consequences of his

insufficiently specific offer.” 168 S.W.3d at 179. The court further explained that

when a defendant’s proposal for admission “encompasses complaints under both

the Texas Rules of Evidence and [constitutional provisions], the objection is not

sufficiently specific to preserve error.” Id.

      Generally, for a non-explicit complaint to serve the two purposes of

preservation explained above—allowing the trial court to rule on the complaint

and allowing the State to respond to it—there must be “statements or actions on

the record that clearly indicate what the judge and opposing counsel understood

the argument to be.” Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App.

2012).      An appellant may not “bootstrap” a constitutional complaint from an

“innocuous trial objection.” Id.

      After the complainant testified outside of the jury’s presence about her stay

at Millwood, the State objected on grounds of hearsay and relevancy. Appellant

responded to those objections by arguing that the testimony was relevant:

“Judge, we would submit that all of this testimony is relevant and should come

before the jury so the jury can get the whole picture of the situation.” Concerning

the admission of Zuteck’s testimony, appellant argued that the State had opened

the door to the complainant’s medical history and that Zuteck’s testimony was

relevant.     Nothing in the record indicates that anyone in the courtroom

understood appellant to be raising constitutional complaints.




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      Nor has appellant ever argued that the “get the whole picture” or “rest of

the story” comments raised constitutional complaints. In his original brief, he did

not address preservation with regard to his first two points. He did not file a reply

brief to respond to the preservation arguments that the State made within its

brief. In his response to the State’s motion for rehearing, he argued that his offer

of proof—which showed what evidence he wanted to admit but not any

constitutional reasons he wanted to admit it—was sufficient to preserve error. He

asserted,

             Everyone in the courtroom at the time the trial court heard the
      proffered testimony outside of the jury knew exactly what evidence
      was being offered by Appellant, and why the prosecutor was
      objecting. . . . The trial court was on clear notice what the proffered
      testimony was, as well as why the State objected. Error was
      preserved. [Emphasis added.]

      At trial, appellant did not comply with the fundamental, explicit, systemic

requirement to state “the grounds for the ruling that [he] sought from the trial

court with sufficient specificity to make the trial court aware of the complaint.”

Tex. R. App. P. 33.1(a)(1)(A); Snodgrass v. State, 490 S.W.3d 261, 268 (Tex.

App.—Fort Worth 2016, no pet.) (stating that preservation of error “is a systemic

requirement”).    As the losing party at trial, he cannot benefit from his

“insufficiently specific offer.” Reyna, 168 S.W.3d at 179.

      For all these reasons, this court should conclude that appellant did not

preserve his constitutional complaints for our review, and we should not reach

the merits of the complaints. See Tex. R. App. P. 33.1(a)(1)(A); Snodgrass, 490



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S.W.3d at 268 (“A reviewing court should not address the merits of an issue that

has not been preserved for appeal.”).        We should not reverse appellant’s

conviction on an argument that the trial court never considered. We also should

not depart from the precedent of the court of criminal appeals and from this court.

Because the majority’s opinion does so, I respectfully dissent.



                                                   /s/ Terrie Livingston
                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

WALKER, GABRIEL, and KERR, JJ., join.

PUBLISH

DELIVERED: July 27, 2017




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