                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00407-CV
                              NO. 02-14-00408-CV


IN THE MATTER OF L.L.J.




                                      ----------

          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
            TRIAL COURT NO. 323-100523-14, NO. 323-99601J-14

                                      ----------

                         MEMORANDUM OPINION1

                                      ----------

      The trial court adjudicated Appellant L.L.J., who is a juvenile, delinquent for

assaulting Kenneth Johnson and modified a prior disposition concerning L.L.J.

based on his assault of Johnson.2 L.L.J. perfected these appeals.

      1
      See Tex. R. App. P. 47.4.
      2
       The trial court combined the issue of adjudication on the assault on
Johnson in cause number 323-100523-14 with the issue of whether L.L.J’s
probation should be extended in cause number 323-99601J-14.
      One afternoon, L.L.J., his father, and his uncle were at Hurricane Harbor.

L.L.J. and a companion confronted Johnson in the men’s locker room as

Johnson changed out of his swimsuit into clothes. After a verbal altercation,

L.L.J. punched Johnson twice in the face, knocking Johnson to the ground.

Johnson suffered a black eye that began swelling and a laceration under his

other eye. Johnson identified L.L.J. as the person who had assaulted him. L.L.J.

denied hitting Johnson and claimed that he had seen Johnson walking around

Hurricane Harbor and that his face was already bloodied.

      L.L.J. testified that his father was with him at Hurricane Harbor that day,

that he and his father look alike, and that he had not entered the men’s locker

room that day until police took him in. Tarrant County Juvenile Probation Officer

Tim Lemear agreed that L.L.J. resembled his father and that it would be easy for

someone to confuse the two “if their focus was on the gold grill and the tattoos.”

Lemear said that he had met L.L.J.’s father and agreed that L.L.J.’s father

matched the general description of the alleged perpetrator of the assault on

Johnson.

      L.L.J.’s attorney attempted to elicit testimony from Lemear concerning

whether L.L.J.’s father had ever admitted to committing the assault on Johnson.

The trial court sustained the State’s repeated objections to this testimony and

excluded it. L.L.J.’s attorney did not make an offer of proof establishing exactly

what Lemear’s testimony on this subject would have been.



                                        2
      In his sole issue, L.L.J. contends that the trial court abused its discretion by

excluding Lemear’s testimony concerning what L.L.J. characterizes as his

father’s statement against interest.

      We review the trial court’s decision to admit or exclude evidence under an

abuse of discretion standard.     Martinez v. State, 327 S.W.3d 727, 736 (Tex.

Crim. App. 2010), cert. denied, 131 S. Ct. 2966 (2011); De La Paz v. State, 279

S.W.3d 336, 343–44 (Tex. Crim. App. 2009). As long as the trial court’s ruling

falls within the zone of reasonable disagreement, we will affirm the trial court’s

decision. Martinez, 327 S.W.3d at 736; Moses v. State, 105 S.W.3d 622, 627

(Tex. Crim. App. 2003).

      In order to preserve error regarding a trial court’s decision to exclude

evidence, the complaining party must comply with Texas Rule of Evidence 103

by making an “offer of proof” which sets forth the substance of the proffered

evidence. See Tex. R. Evid. 103(a)(2); Mays v. State, 285 S.W.3d 884, 889–90

(Tex. Crim. App. 2009). Rule 103(a)(2) states, “A party may claim error in a

ruling to admit or exclude evidence only if the error affects a substantial right of

the party and: . . . if the ruling excludes evidence, a party informs the court of its

substance by an offer of proof, unless the substance was apparent from the

context.” Tex. R. Evid. 103(a)(2). The primary purpose of an offer of proof is to

enable the 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. The offer of

                                          3
proof may consist of a concise statement by counsel, or it may be in question-

and-answer form. Id. at 889–90. 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 court

can determine whether the evidence is relevant and admissible.” Id. (quoting

Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998)).

      Here, L.L.J. did not make an offer of proof concerning Lemear’s testimony

that was excluded.     Consequently, error may not be predicated upon the

exclusion of that testimony.   See Tex. R. Evid. 103(a)(2).    Any error in the

exclusion of the testimony is not preserved for our review. Accord Mays, 285

S.W.3d at 890 (recognizing that in the absence of an offer of proof, appellate

court is unable to determine whether the exclusion, if erroneous, was harmful);

see also, e.g., Montgomery v. State, 383 S.W.3d 722, 726 (Tex. App.––Houston

[14th Dist.] 2012, no pet.) (holding failure to make offer of proof concerning

excluded testimony waived error); Watts v. State, 371 S.W.3d 448, 463–64 (Tex.

App.––Houston [14th Dist.] 2012, no pet.) (same). In the absence of an offer of

proof, we decline to speculate about the content of Lemear’s excluded testimony.




                                       4
     We overrule L.L.J.’s sole issue, and we affirm the trial court’s adjudication

of delinquency in cause number 323-100523-14 and the trial court’s probation

extension in cause number 323-99601J-14.


                                                 /s/ Sue Walker
                                                 SUE WALKER
                                                 JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DELIVERED: September 24, 2015




                                       5
