                              NUMBER 13-08-00409-CR

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


MANUEL CHAPA GARCIA,                                                         Appellant,

                                            v.

THE STATE OF TEXAS,                                                           Appellee.


                    On appeal from the 214th District Court
                          of Nueces County, Texas.


             MEMORANDUM OPINION ON REHEARING

            Before Justices Yañez, Rodriguez, and Garza
        Memorandum Opinion on Rehearing by Justice Rodriguez

       On August 30, 2010, appellant Manuel Chapa Garcia filed a motion for rehearing,

requesting that the Court reconsider its disposition of his appeal. We grant the motion for

rehearing, withdraw our previous opinion and judgment of August 25, 2010, and substitute

the following in its place.
        Garcia challenges his conviction for manslaughter by a jury, for which he was

sentenced to ten years' incarceration. See TEX . PENAL CODE. ANN . § 19.04 (Vernon 2003).

By one issue, Garcia argues that the trial court denied his due process rights under the

United States Constitution when it refused to allow him to present evidence, related to his

self-defense theory, of perceived danger and that the deceased was the first aggressor.

We affirm.

                                              I. BACKGROUND 1

        Garcia was indicted for murder in connection with an altercation at a Denny's

restaurant in Corpus Christi, Texas, in which he punched the deceased who fell back, hit

his head, and died from that injury. At trial, Garcia raised the issue of self-defense, stating

in his testimony that the deceased was the first aggressor. Following Garcia's testimony,

counsel for Garcia informed the trial court that he wished to present the testimony of two

witnesses in support of Garcia's first-aggressor self-defense theory:

        [Defense counsel]:                  Your Honor, I don't plan on going into anything
                                            but reputation. I'm not going into any specifics.
                                            [The prosecution] may want to go into specifics,
                                            but I don't plan on going into it.

        [Court]:                            You're saying that you're going to ask if they
                                            know his reputation in the community, whether
                                            that's good or bad?

        [Defense counsel]:                  For certain character traits, yes, sir. For being
                                            an aggressive person, being a bully, being
                                            unpeaceful. Those are the character traits I
                                            want to go into.

                                            ....


          1
            Because this is a m em orandum opinion and the parties are fam iliar with the facts, we will not recite
them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See
T EX . R. A PP . P. 47.4.

                                                        2
      [Court]:                    I'll allow slight leeway. Call your witness.

Garcia then called Marcos Munoz as a witness, who testified, in relevant part, as follows:

      [Defense counsel]:          Mr. Munoz, do you know a man – or did you
                                  know . . . [the deceased]?

      [Munoz]:                    Yes, sir.

      [Defense counsel]:          About how long a period of time have you known
                                  him?

      [Munoz]:                    About three years.

      [Defense counsel]:          Did you know his reputation in the community in
                                  which he resided or in the area that he worked,
                                  did you know his reputation for being a peaceful
                                  person?

      [Munoz]:                    No, sir.

      [Defense counsel]:          You didn't know his reputation for being a
                                  peaceful person?

      [Munoz]:                    No, sir.

      [Defense counsel]:          Okay. So then if you don't know his reputation, you
                                  can't testify whether –

At this point, the trial court interrupted Garcia's counsel, and the following exchange

occurred at the bench:

      [Court]:                    I gave you some leeway. He answered your
                                  question and he said no. So that's it for him.

      [Defense counsel]:          I don't think he understands, Judge.

      [Court]:                    I think he did. You asked him twice. So that's it
                                  for him. Do you have somebody else?

      [Defense counsel]:          Let me ask him a couple of more questions
                                  about –

      [Court]:                    He's already –

                                              3
       [Prosecutor]:               He says he doesn't know.

       [Court]:                    Excuse me, please.

       [Prosecutor]:               Sorry.

       [Court]:                    He already answered the question. He said no,
                                   I don't know his reputation, period. And you
                                   asked him twice. So do you have somebody
                                   else you want to put on?

       [Defense counsel]:          I do, Your Honor, but I want to make sure they
                                   don't make the same mistake he made. And I
                                   need to talk to that witness if that's the case.

       [Court]:                    No. I'm going to let – we're in trial. If you have
                                   a witness, you put him on. If you don't have a
                                   witness, you don't put him on.

       [Defense counsel]:          I don't have anyone, Judge.

       [Court]:                    That's it?

       [Defense counsel]:          That's it.

Garcia then rested his case.

       The jury was charged on the indicted offense of murder and also on the lesser-

included offenses of aggravated assault, manslaughter, and criminally negligent homicide.

The jury charge included an instruction on self-defense. The jury returned a guilty verdict

on manslaughter alone. After further proceedings on punishment, the jury sentenced

Garcia to ten years' incarceration in the Institutional Division of the Texas Department of

Criminal Justice and assessed a $10,000 fine.

       Garcia filed a motion for new trial, arguing, in relevant part, that the trial court

prevented the jury from hearing evidence relevant to his self-defense theory when the court

excluded the testimony of Munoz and Margarita Herrero, the deceased's ex-wife, at the



                                                4
guilt-innocence phase of the trial.2 Garcia then filed an amended motion for new trial, to

which he attached the affidavits of Munoz and Herrero.                         The affidavits contained

summaries of the proffered testimonies regarding the deceased's alleged past acts of

violence and aggression against them and his reputation for violence and aggression in the

community. After hearing the motion and purporting to "admit" the two affidavits as

evidence, the trial court denied Garcia's motion.

                                               II. DISCUSSION

       By one issue, Garcia complains that his constitutional rights were violated when the

trial court denied him "a fair opportunity to present testimony relevant to his defense of self

defense," which Garcia argues would have shown perceived danger and that the deceased

was the first aggressor. See Ray v. State, 178 S.W.3d 833, 835 (Tex. Crim. App. 2005);

Potier v. State, 68 S.W.3d 657, 659 (Tex. Crim. App. 2002) (en banc); see also U.S.

CONST . amend. VI. Garcia's complaint focuses on the exchange between his defense

counsel and the trial court following Munoz's testimony at the guilt-innocence phase of the

trial; specifically, he argues in his brief as follows:

              Defense counsel tried to first offer the testimony of each of the
       defense witnesses . . . . Mr. Munoz took the stand, but apparently did not
       understand the nature of the questions put to him and gave an unexpected
       response. Defense counsel attempted to question Munoz further but the
       court would no[t] permit it. Defense counsel then requested time to confer
       with the second witness before she testified to make sure she understood
       the nature of the questions that she would be asked. The trial court denied
       defense counsel this request. Defense counsel decided not to call the




       2
           Margarita Herrero was never called as a witness at the guilt-innocence phase of the trial.

                                                       5
         witness and rested.[3]

Garcia then argues that the excluded evidence "would have assisted the jury in

determin[ing] exactly what [Garcia] was confronted with", and "[h]ad the jury had the

testimony of [Munoz and Herrero,] the verdict may have been different."

         The exclusion of a defendant's evidence can amount to a violation of the right to

compel the attendance of witnesses in the defendant's favor, but not every erroneous

exclusion of a defendant's evidence amounts to a constitutional violation. Potier v. State,

68 S.W.3d 657, 659 (Tex. Crim. App. 2002) (en banc); see U.S. CONST . amend. VI.



         3
           A portion of the evidence about which Garcia com plains on appeal— testim ony by Munoz and Herrero
regarding the deceased's prior violent acts— was not introduced at the guilt-innocence phase of his trial. It
is clear from the record that Garcia only intended to introduce and did attem pt to introduce evidence of the
deceased's alleged reputation in the com m unity for violence and aggression. Thus, even though the
substance of the proposed testim ony regarding specific violent acts appears in the record before us through
the affidavits of Munoz and Herrero attached to Garcia's m otion for new trial, we are faced with a procedural
hurdle in that the evidence was never offered at trial. See T EX . R. E VID . 103(b) (providing that an offer of proof
shall be m ade "as soon as practicable, but before the court's charge is read to the jury . . . ."). Garcia does
not acknowledge or address this circum stance in his brief to the Court. Because Garcia did not introduce the
testim ony of Munoz and Herrero regarding alleged specific prior acts of aggression and violence, the trial court
did not have the opportunity to rule on the adm issibility of that testim ony. See T EX . R. A PP . P. 33.1(a); Valle
v. State, 109 S.W .3d 500, 509 (Tex. Crim . App. 2003) (holding that preservation of error requires objection
and ruling on that objection); Hill v. State, 902 S.W .2d 57, 60 (Tex. App.–Houston [1st Dist.] 1995, pet. ref'd)
(holding that the trial court's adverse ruling m ust explicitly appear in the record, and absent any notation as
to the trial court's decision, error is waived). And absent a ruling by the trial court on this portion of the
evidence about which G arcia now com plains, this Court is left with no cognizable com plaint regarding
testim ony of the deceased's specific prior violent acts on which to pass judgm ent. See T EX . R. A PP . P. 33.1(a).
Garcia has therefore waived this portion of his argum ent, and we overrule his issue to the extent it com plains
of evidence regarding the deceased's prior violent acts.

        In his brief, Garcia also points to actions by the trial court during the punishm ent phase of the trial,
but those actions are irrelevant for purposes of this appeal as Garcia's challenge relates only to his self-
defense theory at the guilt-innocence phase of his trial.

         Finally, to the extent that Garcia com plains of the exclusion of testim ony by Herrero regarding the
reputation of the deceased, he has waived that com plaint. Herrero was never called as a witness at the guilt-
innocence phase of the trial, and the trial court thus had no opportunity to rule on the adm issibility of her
testim ony. See T EX . R. A PP . P. 33.1(a); see also Valle, 109 S.W .3d at 509; Hill, 902 S.W .2d at 60.




                                                          6
        There are two circumstances in which the improper exclusion of evidence
        may establish a constitutional violation: (1) when a state evidentiary rule
        categorically and arbitrarily prohibits the defendant from offering relevant
        evidence that is vital to his defense; or (2) when a trial court erroneously
        excludes relevant evidence that is a vital portion of the case and the
        exclusion effectively precludes the defendant from presenting a defense.

Ray v. State, 178 S.W.3d 833, 835 (Tex. Crim. App. 2005) (citing Potier, 68 S.W.3d at 659-

62; Wiley v. State, 74 S.W.3d 399, 405 (Tex. Crim. App. 2002)). If the error is found to be

of constitutional proportions, we "must reverse [the] judgment of conviction or punishment

unless [we] determine[] beyond a reasonable doubt that the error did not contribute to the

conviction or punishment." TEX . R. APP. P. 44.2(a).

        Here, Garcia does not claim that an evidentiary rule categorically and arbitrarily

prohibited him from offering evidence. We will therefore determine: first, whether the trial

court impermissibly circumscribed Munoz's testimony; and if so, whether the excluded

evidence was so vital a part of Garcia's case that it effectively precluded him from

presenting his defense. The initial question in this case, then, is whether the trial court's

limitation of Munoz's testimony amounted to an erroneous exclusion of admissible

reputational evidence. We believe that it did not.4

        "A defendant in a homicide prosecution who raises the issue of self-defense may

introduce evidence of the deceased's violent character." Torres v. State, 71 S.W.3d 758,



        4
            The State contends, in part, that Garcia failed to preserve error regarding the exclusion of Munoz's
testim ony because he failed to m ake a tim ely offer of proof containing the substance of that testim ony. See
T EX . R. E VID . 103(a)(2). W e disagree. Before Munoz took the stand, counsel for Garcia stated that his first-
aggressor witnesses would testify as to "certain character traits" of the deceased, including "being an
aggressive person, being a bully, being unpeaceful." Based on these representations, we believe the
substance of Munoz's testim ony was m ade known to the trial court, and the com plaint was therefore
preserved. See id.; T EX . R. A PP . P. 33.1(a).

                                                       7
760 (Tex. Crim. App. 2002) (citing TEX . R. EVID . 404(a)(2); Tate v. State, 981 S.W.2d 189,

192-93 (Tex. Crim. App. 1998) (en banc); Thompson v. State, 659 S.W.2d 649, 653 (Tex.

Crim. App. 1983)). This evidence may be introduced in the form of opinion or reputation

testimony to prove the deceased acted in conformity with his violent nature. TEX . R. EVID .

405(a).

       However, for such reputational evidence to be admissible, the proponent must first

lay the proper foundation for the qualification of the witness who will testify about the

reputation of the deceased.        See Mowbray v. State, 788 S.W.2d 658, 668 (Tex.

App.–Corpus Christi 1990, pet. ref'd) (upholding exclusion of reputation testimony based

on no proper predicate); see also Peck v. State, 923 S.W.2d 839, 842-43 (Tex. App.–Tyler

1996, no pet.). "To be an appropriate reputation witness, the witness must have a

substantial familiarity with the reputation of the person about whom the witness is

supposed to testify." Garza v. State, 18 S.W.3d 813, 824 (Tex. App.–Fort Worth 2000, pet.

ref'd) (citing Lopez v. State, 860 S.W.2d 938, 944-45 (Tex. App.–San Antonio 1993, no

pet.)); see Mowbray, 788 S.W.2d at 668 (stating same principle under predecessor to

current rule 405); see also TEX . R. EVID . 405(a) (providing that "to be qualified to testify at

the guilt stage of a [criminal] trial concerning the character or character trait of an accused,

a witness must have been familiar with the reputation . . . prior to the day of the offense").

       We will not disturb a trial court's decision to exclude the proposed reputational

testimony unless an abuse of discretion is shown. See Montgomery v. State, 810 S.W.2d

372, 391 (Tex. Crim. App. 1991) (op. on reh'g); Ferrell v. State, 968 S.W.2d 471, 474 (Tex.



                                               8
App.–Fort Worth 1998, pet. ref'd) (citation omitted); see also Chavez v. State, No.

13-01-00407-CR, 2002 WL 31084422, at *2 (Tex. App.–Corpus Christi Sept. 19, 2002, pet.

ref'd) (not designated for publication). That standard requires us to uphold a trial court's

admissibility decision when that decision is within "the zone of reasonable disagreement."

Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001).

       The attempted predicate in this case consisted of the previously described

exchange between Munoz and Garcia's defense counsel. The trial court then halted the

questioning. When counsel for Garcia protested, the trial court stated, "[Munoz] already

answered the question. He said no, I don't know [the deceased's] reputation, period. And

you asked him twice."

       Although it is possible that Munoz could have been confused by the phrasing of

defense counsel's question, under our deferential standard of review, we assume the trial

court was operating from the "best vantage" to interpret the situation. See Montgomery,

810 S.W.2d at 391; see also TEX . R. EVID . 104(a) (providing that preliminary questions

regarding the qualifications of witnesses "shall be determined by the [trial] court");

McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993), overruled on other

grounds, Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002) ("The rules of

evidence afford the court broad discretion in the determination" of preliminary questions

of admissibility.). This is a case that falls within that "reasonable zone of disagreement,"

a case in which we must defer to the trial court's reliance on "its own observations and

experiences" because the complained-of exchange involves reactions and details that



                                             9
cannot be appropriately ascertained through a cold appellate record.                         See Powell, 63

S.W.3d at 438; Montgomery, 810 S.W.2d at 391. Thus, based on our review of the cold

record on appeal, we conclude that Garcia failed to lay the proper predicate that Munoz

was substantially familiar with the deceased's reputation for aggression and violence, and

we therefore cannot say that the trial court abused its discretion in refusing to permit further

questioning of Munoz. See Garza, 18 S.W.3d at 824; Mowbray, 788 S.W.2d at 668; see

also TEX . R. EVID . 405(b). Because the trial court did not err in excluding Munoz's

testimony, it did not violate Garcia's constitutional right to compel favorable witnesses.5

See Ray, 178 S.W.3d at 835; see also U.S. CONST . amend. VI. Garcia's sole issue is

overruled.

                                              III. CONCLUSION

        The judgment of the trial court is affirmed.



                                                                      NELDA V. RODRIGUEZ
                                                                      Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Delivered and filed the 4th
day of November, 2010.




        5
           And because there was no evidentiary error, we need not address whether Garcia was harm ed. See
T EX . R. A PP . P. 47.1; Ray v. State, 178 S.W .3d 833, 835 (Tex. Crim . App. 2005) (citing Potier, 68 S.W .3d at
659-62; W iley v. State, 74 S.W .3d 399, 405 (Tex. Crim . App. 2002)).

                                                       10
