                                     NO. 07-08-00261-CR

                                 IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                            PANEL A

                                         MAY 26, 2010


                           RUBEN ISREAL SANCHEZ, APPELLANT

                                                v.

                             THE STATE OF TEXAS, APPELLEE


               FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

                   NO. 19,175-B; HONORABLE DAVID GLEASON, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                  MEMORANDUM OPINION


       Appellant Ruben Israel Sanchez appeals from his jury conviction of the offense of

aggravated assault with a deadly weapon and the resulting sentence of fifteen years=

confinement in the Institutional Division of the Texas Department of Criminal Justice and

imposition of a $10,000 fine. Through one issue, appellant contends the trial court

abused its discretion by refusing to admit evidence regarding appellant=s “mental

illness”1 in mitigation of punishment. We affirm the trial court=s judgment.



       1
           “Mental illness” is appellant’s phrase.
                                      Background


      Appellant was charged by indictment with aggravated assault with a deadly

weapon.2   At his trial, the evidence showed appellant and the victim fought in the

parking lot and nearby street of a drive-in restaurant. Friends of the victim surrounded

the two men during the fight. Appellant stabbed the victim in the stomach with a knife.

When later arrested by Amarillo police, appellant told officers he Ahad stabbed the guy

in self-defense as there was too many of them.@ The jury found appellant guilty as

charged in the indictment.


      During the punishment phase of trial, the State presented evidence of several

other crimes and wrongs committed by appellant.3        Testimony showed incidents in

which appellant acted aggressively toward police and others, participated in fights, and

possessed various types of weapons.        On appeal, appellant argues this evidence

demonstrated his erratic and violent behavior on numerous occasions and implies this

behavior is indicative of his mental illness. Appellant=s sister was his only punishment-

phase witness and testified appellant had been diagnosed with bipolar disorder. The

State generally objected and the court sustained the objection.



      2
         See Tex. Penal Code Ann. ' 22.02 (Vernon 2003). This is a second degree
felony punishable by imprisonment for a term of not more than 20 years or less than 2
years and a fine not to exceed $10,000. Tex. Penal Code Ann. ' 12.33 (Vernon 2003).
      3
         The State also presented evidence to show appellant had been previously
convicted of several misdemeanor offenses including false identification, possession of
marijuana, discharging a firearm in a municipality and assault.

                                           2
                                        Analysis


       Via his sole issue, appellant contends the trial court fundamentally erred by

excluding testimony concerning his history of mental illness.       He asserts that by

sustaining the State=s non-specific objection to appellant=s sister=s testimony as to his

diagnosis, the court wholly foreclosed the presentation of relevant and valuable

testimony that explained appellant=s actions and offered hope for rehabilitation with

proper treatment.


Standard of Review


       We review a trial court=s admission or exclusion of evidence for abuse of

discretion.      McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005);

Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh=g). A trial

court abuses its discretion when its decision is so clearly wrong as to lie outside that

zone within which reasonable persons might disagree. McDonald, 179 S.W.3d at 576;

Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992). Texas Code of Criminal

Procedure Article 37.07, ' 3(a) governs the admissibility of evidence at a trial=s

punishment phase and grants the trial court broad discretion to admit evidence that it

deems relevant to sentencing. Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a) (Vernon

Supp. 2008); McGee v. State, 233 S.W.3d 315, 318 (Tex.Crim.App. 2007), citing Erazo

v. State, 144 S.W.3d 487, 491 (Tex.Crim.App. 2004). Article 37.07, ' 3(a)(1) states in

relevant part:


                                           3
      [E]vidence may be offered by the state and the defendant as to any matter
      the court deems relevant to sentencing, including but not limited to the
      prior criminal record of the defendant, his general reputation, his
      character, an opinion regarding his character, . . . evidence of an
      extraneous crime or bad act that is shown beyond a reasonable doubt by
      evidence to have been committed by the defendant or for which he could
      be held criminally responsible, regardless of whether he has previously
      been charged with or finally convicted of the crime or act. Id.



      Evidence is Arelevant to sentencing@ within the meaning of article 37.07, ' 3(a) Aif

the evidence is >helpful to the jury in determining the appropriate sentence for a

particular defendant in a particular case.=@ McGee, 233 S.W.3d at 318.


      Errors in the admission of evidence generally are subject to the rules requiring a

timely request to the trial court, and a ruling on the request, as prerequisite to the

presentation of the complaint on appeal. Tex. R. App. P. 33.1(a). Unless the substance

of excluded evidence is apparent from the context in which questions were asked, error

predicated on its exclusion is preserved by an offer of proof and a ruling. Tex. R. Evid.

103(a)(2); Reyna v. State, 168 S.W.3d 173, 177 (Tex.Crim.App. 2005); Warner v. State,

969 S.W.2d 1, 4 (Tex.Crim.App. 1998) (per curiam).


      During appellant=s sister=s punishment testimony, the following exchange

occurred:


      Q: (by defense counsel)     Now, first, during [appellant=s] life, do you know him to
                                  haveBor not to have had health issues?

      A:                          Yes. He has been diagnosed with bipolar disorder.

                                            4
       Prosecutor:                 Your Honor, I=m going to object.
       The Court:                  Sustained.4
       Defense counsel:            Okay.


       Appellant’s counsel then moved on to another subject. Nowhere else in the

record is further mention made of appellant’s bipolar disorder or other mental condition.5

Appellant made no mention or argument to the jury of such a disorder, at any point

during the trial. No further attempt was made to introduce evidence appellant suffered

from mental illness.


       This case provides a good illustration why the law requires an offer of proof for

preservation of a claimed error excluding evidence, unless the substance of the

excluded evidence is apparent.      On the record before us, it is impossible to know

whether appellant elicited all the information he hoped to elicit from his sister concerning

his bipolar disorder with his one question about “health issues” and her response, or

whether, as he asserts on appeal, she was possessed of much more information that




       4
         Note that while the trial court sustained the State=s objection, it was not asked
to instruct the jury to disregard the statement, nor did the court do so. The jury was free
to consider his sister=s statement that appellant had been diagnosed with bipolar
disorder. See Mines v. State, 888 S.W.2d 816, 817-18 (Tex.Crim.App. 1994) (evidence
of bipolar disorder is relevant to punishment).
       5
         Appellant’s sister did mention family counseling. However, this reference is not
directly related to her testimony concerning appellant’s bipolar disorder and appellant
does not attempt to relate it to that testimony.

                                             5
would have been helpful to the jury.6 And, assuming his sister could have told the jury

more about his diagnosed disorder, on the record before us, it is impossible to know

whether appellant’s counsel made the conscious decision not to pursue the line of

questioning with her or, as appellant asserts on appeal, desired to put on more

evidence but considered his doing so “foreclosed” by the sustaining of the State’s

objection.


           Appellant contends the substance of the excluded evidence was apparent from

the context within which the “health issues” question was asked and the response

given. Appellant cites Fairow v. State, 943 S.W.2d 895, 897 n.2 (Tex.Crim.App. 1997)

to support this contention, but we find Fairow so distinguishable as not to be helpful to

appellant. To begin with, in Fairow, the record contained two questions asked by the

defendant but not answered by the witness because of sustained objections. Id. at 897.

We do not have the benefit of knowing even what further questions, if any, appellant

desired to ask his sister. Second, the substance of the excluded testimony in Fairow

was apparent from the context because the record demonstrated the defendant’s

ultimate aim during the prohibited questioning, which was to introduce into evidence an

exculpatory statement uttered by a co-conspirator.7



       6
         Appellant clearly understood how to make an offer of proof because he did so
during trial with respect to other evidence not at issue in this appeal.

       7
        The Court of Criminal Appeals’ opinion, referring to a statement made shortly
after a shooting, states that the witness “Middleton was going to testify that [the co-
conspirator] said ‘something’ like ‘I didn’t try to kill him.’” 943 S.W.2d at 897.
                                            6
       The distinctions between the questioning in Fairow and that in the case at bar are

apparent.    The prosecutor’s two objections came after counsel in Fairow asked

questions but before they were answered. The record is thus clear that the defense

was attempting to elicit from the witness a statement that the shooting was accidental.

The same is not true here.       The record does not reveal what additional evidence

appellant would have elicited from his sister, if any.


       Appellant lastly asserts that an offer of proof was not necessary here because

the trial court’s ruling amounted to fundamental error. He contends by sustaining the

State’s “generic” objection to testimony regarding appellant’s bipolar disorder, the trial

court eliminated his only defensive issue at the punishment stage, resulting in a

fundamentally unfair trial, in violation of his due process rights. He relies on Blue v.

State, 41 S.W.3d 129 (Tex.Crim.App. 2000) and Rule of Evidence 103(d). Tex. R. Evid.

103(d).


       As we have noted, it is not at all clear that appellant was prevented from

introducing any evidence by the trial court’s sustaining of the State’s objection following

his sister’s response that he had been diagnosed with bipolar disorder. His argument

assumes the court’s ruling indicated appellant was forbidden to inquire further into his

sister’s knowledge of his medical condition.       The record does not support such an

assumption. In Blue, the Court of Criminal Appeals found the trial court’s improper

comments in front of the jury panel tainted the defendant’s presumption of innocence.

41 S.W.3d at 132. Here, the trial court’s sustaining of the State’s objection was in the

                                              7
presence of the jury, but we do not agree it carried the sort of taint that made the

comments in Blue fundamental error requiring no objection. Id. Further, appellant’s

claims of constitutional violations are not exempt from error preservation rules. See

Irvan v. State, No. AP-74853, 2006 WL 1545484 (Tex.Crim.App. June 7, 2006) (not

designated for publication), cert. denied, 549 U.S. 1079, 127 S. Ct. 726, 166 L. Ed. 2d

565 (2006) (finding similar contention trial court’s exclusion of evidence violated

constitutional right to present meaningful defense not preserved for appellate review

when offer of proof not made).


         We overrule appellant=s sole issue on appeal and affirm the judgment of the trial

court.




                                                        James T. Campbell
                                                             Justice




Do not publish.




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