                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NOS. 02-10-00075-CR
                                  02-10-00076-CR


WILLIAM DOYLE HICKS                                                APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 415TH DISTRICT COURT OF PARKER COUNTY

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                        MEMORANDUM OPINION1
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      After a paid informant helped officers catch Appellant William Doyle Hicks

transporting a methamphetamine lab in the back of his pickup truck, a jury found

Appellant guilty of possessing certain chemicals with intent to manufacture a

controlled substance and possessing four grams or more but less than 200

grams of methamphetamine.         Appellant pleaded true to the indictments’


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      See Tex. R. App. P. 47.4.
enhancement paragraphs, the jury assessed two life sentences as punishment,

and the trial court sentenced Appellant accordingly, ordering the sentences to run

concurrently.

       The informant was one of several witnesses who testified for the State at

Appellant’s trial. In his sole point on appeal, Appellant claims that the trial court

abused its discretion by not allowing him to present opinion testimony as to the

informant’s credibility. We affirm.

       After the State rested on guilt-innocence, Appellant called the informant’s

brother to the stand. The brother testified that he knew the informant used drugs,

had a reputation among their mutual friends as a ―habitual liar,‖ and that, based

upon his own personal knowledge of and experiences with the informant, he

believed she had a propensity to lie. Later, during the State’s cross-examination,

the brother testified that his opinion of the informant’s reputation was that she

was a liar and a bad person, who was not entitled to belief:

       Q.    And your opinion of your sister’s reputation is that she’s a liar
       and a bad person and shouldn’t be believed, correct?

       A.    Yes, sir.

       Now Appellant complains that the trial court ―cut [him] off from pursuing‖

opinion testimony as to the informant’s credibility. Our reading of the record,

however, informs us that the trial court did not prevent Appellant from eliciting

from the brother his opinion of the informant’s credibility. Specifically, the brother

testified:



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          Q.    (BY [APPELLANT’S COUNSEL])              Do you believe [the
          informant] has a propensity to lie?

          A.    Yes, sir, I do.

          Q.    Does that come from you own personal knowledge – –

          A.    Yes, sir.

          Q.    – – and experiences with her?

          A.    Yes, sir.

          At that point, the trial court sustained the State’s objection that Appellant

was asking about specific instances of conduct. However, the State did not

request, and the trial court did not issue, an instruction to the jury to disregard. In

holding that under similar circumstances an appellant preserved nothing for

review, one of our sister courts explained:

                 Appellant answered counsel’s question and since there was
          no instruction to disregard, that testimony was before the jury for
          consideration. Had the prosecutor desired to keep the testimony out
          of the jury’s hearing, he should have objected before appellant
          answered. Once the answer is given, the only way to limit its
          evidentiary strength is to request that the court instruct the jury to
          disregard. Without such an instruction, the testimony is within the
          jury’s review and appellant has nothing to complain of.

Wills v. State, 867 S.W.2d 852, 855 (Tex. App.—Houston [14th Dist.] 1993, pet.

ref’d).

          Appellant concedes that, to the extent that the trial court’s ruling excluded

specific instances of conduct offered to attack the credibility of the State’s

witness, it was ―arguably correct‖ under rule 608(b). See Tex. R. Evid. 608(b).

Still, he argues, ―[T]he trial court’s ruling went too far. In sustaining the State’s


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objection to that specific question, the court went on to opine that the only thing

admissible was the informant’s reputation for truthfulness. That is clearly not the

law.‖ We read the record differently. The prosecutor, not the trial judge, is the

one who opined that only the informant’s reputation was admissible.

      Moreover, for us to address the propriety of a trial court’s ruling excluding

evidence a party wished to admit, the record must show what that evidence

would have been.      In other words, to preserve error, the substance of the

excluded evidence must be shown by offer of proof unless it is apparent from the

context of the questions asked. Tex. R. Evid. 103(a)(2); Tex. R. App. P. 33.2;

Holmes v. State, 323 S.W.3d 163, 168 (Tex. Crim. App. 2009). Error may be

preserved by an offer of proof in question-and-answer form or in the form of a

concise statement by counsel. Tex. R. Evid. 103(b); Holmes, 323 S.W.3d at 168.

Counsel’s concise statement must include a summary of the evidence offered.

Holmes, 323 S.W.3d at 168.       Error is not preserved if the offer of proof is

inadequate. Id.; see also Mays v. State, 285 S.W.3d 884, 889–90 (Tex. Crim.

App. 2009) (holding that error was not preserved when appellant failed to proffer

with some degree of specificity the substantive evidence he intended to present).

      As already discussed, the record in this case shows that Appellant elicited

the witness’s opinion testimony about the informant’s credibility. We cannot tell

what other evidence, if any, Appellant sought to admit. Therefore, because the

opinion testimony Appellant claims he was not allowed to admit was actually

admitted before the jury, and because Appellant did not make a record showing


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what other evidence he wished to elicit, we hold that he has failed to preserve his

claim for review. See Tex. R. Evid. 103(b); Tex. R. App. P. 33.2; Holmes, 323

S.W.3d at 168; Wills, 867 S.W.2d at 855. Accordingly, we overrule Appellant’s

sole point, and affirm the judgment of the trial court.




                                                     LEE GABRIEL
                                                     JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 16, 2011




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