                                  In the
                             Court of Appeals
                     Second Appellate District of Texas
                              at Fort Worth
                            ___________________________

                                 No. 02-15-00416-CR
                            ___________________________

                            JOSHUA GOLLIDAY, Appellant

                                               V.

                                  THE STATE OF TEXAS


                         On Appeal from the 371st District Court
                                Tarrant County, Texas
                              Trial Court No. 1379815D


                              Before the En Banc Court1
                Memorandum Opinion on Remand by Justice Gabriel
            Senior Justice Dauphinot concurs and dissents without opinion


       1
        The en banc court for this appeal consists of all current members of the court as well as
Senior Justices Lee Ann Dauphinot and Anne Gardner who were members of the panel on original
submission and are eligible for assignment to this court. See Tex. R. App. P. 41.2(a).
                    MEMORANDUM OPINION ON REMAND

      Appellant Joshua Golliday appeals from his conviction for the sexual assault of

his neighbor Betsy.2 He argues that the trial court abused its discretion by excluding

his proffered character evidence and by denying his mistrial request after the State

improperly commented on his failure to testify during its closing jury argument, and

that the cumulative effect of these errors warrants reversal of his conviction. We

conclude that no reversible error occurred during Golliday’s trial and affirm the trial

court’s judgment.

                                I. BACKGROUND

      After Golliday drove Betsy to a convenience store to get cigarettes, Betsy

invited him into her apartment to watch a movie. They began kissing, which Betsy

consented to, but Golliday wanted more. When Betsy asked Golliday to leave her

apartment, Golliday ripped off her pants and forcibly raped her. When Golliday fled,

Betsy chased after him while calling 911, giving the police Golliday’s license plate

number when he drove off.

      At trial, Golliday argued that Betsy’s story was inconsistent, that the sex had

been consensual, and that the police investigation had not been thorough. Golliday

attempted to question Betsy and the sexual-assault nurse examiner (SANE) about

various matters that he asserted were relevant and would allow the jury to “get the

      2
       We refer to the complainant by an alias to protect her identity. See Tex. R.
App. P. 9.8 cmt.; 2d Tex. App. (Fort Worth) Loc. R. 7.


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whole picture of the situation.” On original submission, this court concluded that

Golliday’s stated reasons supporting the admission of the evidence along with his

offer of proof preserved his appellate complaints that the exclusions violated the

Confrontation Clause and due process. Golliday v. State, 551 S.W.3d 193, 199–200

(Tex. App.—Fort Worth 2017) (en banc op. on reh’g). The court of criminal appeals

reversed, holding that although Golliday had made an offer of proof, informing the

trial court of the substance of the excluded testimony, his stated objections were

insufficient to inform the trial court that the reason he sought admission was based on

constitutional grounds; thus, his constitutional arguments were not preserved for

appellate review. Golliday v. State, 560 S.W.3d 664, 670–71 (Tex. Crim. App. 2018).

The court of criminal appeals remanded the case to this court to consider his

remaining appellate issues: “[T]hat the State had improperly commented on his silence

to the jury, that the trial court had erred in sustaining an objection to proffered

character evidence, and that the cumulative effect of trial errors prevented him from

presenting his defense.” Id. at 667, 671.

                          II. CHARACTER EVIDENCE

      Golliday argues that the trial court abused its discretion by excluding the

testimony of three of his former girlfriends that their dating relationships with

Golliday were respectful and that they were surprised to hear Betsy’s allegations. The

State objected, asserting that their testimony was not relevant to a fact at issue and

that it was improper character testimony. Golliday responded to the objections by

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asserting that their testimony was “relevant.”3 The trial court sustained the State’s

objections to the proffered testimony. Golliday asserts on appeal that this character

evidence, while generally inadmissible “to prove on a particular occasion [he] acted in

accordance with the character or trait,” was admissible as evidence of a “pertinent

trait.” Tex. R. Evid. 404(a)(1), (2)(A).

       The State argues that Golliday did not preserve this error for our review

because he failed to explain why his proffered character evidence was admissible in

response to the State’s objection. Indeed, Golliday did not respond to the State’s

objection that the proffered testimony was improper character evidence, focusing

instead on his assertions that the evidence was relevant. Golliday’s sole response to

the State’s objection based on rule 404(a)(1) was that the evidence was relevant to

every issue before the jury, and he did not assert that the testimony was admissible

character evidence under the evidentiary rules because it showed a pertinent trait.4


       3
        In response to the State’s first objection based on relevance, Golliday
responded that “this is all showing that he’s not the kind of person that would
commit this crime.” But in response to the State’s objection based on the
inadmissibility of character evidence, Golliday solely relied on the evidence’s relevance
to the issues before the jury.
       4
        We recognize that this court has held in dictum that a defendant has no
obligation to articulate an admissibility theory in response to an objection to the
admission of defensive evidence because the defendant’s offer of proof and the trial
court’s ruling were sufficient to preserve any error. Turner v. State, 413 S.W.3d 442,
450, 453 n.5 (Tex. App.—Fort Worth 2012, no pet.). The court of criminal appeals
has since clearly held that a defendant must specifically articulate his admissibility
theory in response to an objection to his proffered evidence. See Golliday, 560 S.W.3d
at 670–71; see also Reyna v. State, 168 S.W.3d 173, 177, 179–80 (Tex. Crim. App. 2005).

                                           4
See Tex. R. Evid. 401, 404(a)(2)(A).       In short, he relied on rule 401, not rule

404(a)(2)(A), for admissibility, and the record does not reflect that the trial court

understood Golliday’s argument to be one based on a pertinent character trait under

rule 404(a)(2)(A). See Tex. R. App. P. 33.1(a)(1)(A); Golliday, 560 S.W.3d at 670–71 &

n.35.     Golliday failed to preserve his admissibility argument based on rule

404(a)(2)(A). See, e.g., Golliday, 560 S.W.3d at 669–71; Smallwood v. State, 471 S.W.3d

601, 614 (Tex. App.—Fort Worth 2015, pet. ref’d) (op. on reh’g); Molina v. State,

450 S.W.3d 540, 552 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Stewart v. State,

No. 05-96-00128-CR, 1997 WL 524154, at *3 (Tex. App.—Dallas Aug. 26, 1997, no

pet.) (not designated for publication); cf. Resendez v. State, 306 S.W.3d 308, 313 (Tex.

Crim. App. 2009) (“When the correct ground for exclusion was obvious to the judge

and opposing counsel, no forfeiture results from a general or imprecise objection,”

but “when the context shows that a party failed to effectively communicate his

argument, then the error will be deemed forfeited on appeal.”).

                            III. DENIAL OF MISTRIAL

        Golliday asserts that the State impermissibly and harmfully commented on his

failure to testify during its closing jury argument by using rhetorical questions:

        [Betsy] had the courage to immediately go after her attacker. And
        they’re going to sit here with a straight face and say that he was scared of
        her? Is that a serious argument? That if she doesn’t go and cower in the
        corner in fear that she wasn’t sexually assaulted?

             Thank God [Betsy] did what she did, because what did this
        Defendant do? And that is damaging evidence. Who did you call? That

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       is damaging powerful evidence. Why else would [Golliday] do that? We
       clearly know it’s not out of fear for her. That’s ludicrous. Why run?
       What is he doing? Why is he trying to get out of there so quickly?

Golliday objected to the questions as a comment on his failure to testify, which the

trial court sustained. The trial court also contemporaneously instructed the jury to

disregard the argument, but denied Golliday’s request for a mistrial. Golliday posits

that the trial court erred by denying his mistrial motion. For the purposes of this

appeal, we assume, but expressly do not decide, that the State’s argument was a

comment on Golliday’s failure to testify.5

       We review a trial court’s ruling on a motion for mistrial for an abuse of

discretion. See Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). The law

presumes that a jury duly obeys a trial court’s instruction to disregard. See Archie v.

State, 340 S.W.3d 734, 741 (Tex. Crim. App. 2011). Thus, any resulting harm from an

improper jury argument is generally cured by such an instruction, and there is no

indication here that it was not. See Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim.

App. 1995); Williams v. State, 417 S.W.3d 162, 175–76 (Tex. App.—Houston [1st Dist.]

2013, pet. ref’d). Further, the trial court instructed in its charge that the jury could not

consider Golliday’s failure to testify to be “a circumstance against him.” We conclude

that it was not an abuse of discretion for the trial court to determine that the

       On appeal, the State cogently explains why the rhetorical questions were not a
       5

comment on Golliday’s failure to testify which would belie any abuse-of-discretion
argument. We do not reject the State’s contention; we only determine that we need
not decide the issue in this instance.


                                             6
instruction to disregard and the jury-charge instruction cured any harm resulting from

the State’s argument. See Moore v. State, 999 S.W.2d 385, 405–06 (Tex. Crim. App.

1999); Williams v. State, No. 03-14-00427-CR, 2016 WL 3752562, at *3 (Tex. App.—

Austin July 8, 2016, no pet.) (mem. op., not designated for publication).

                           IV. CUMULATIVE ERROR

       Golliday argues in the alternative that even if none of his issues present

reversible error, the “combined” errors’ “cumulative effect” warrants reversal. “[W]e

are aware of no authority holding that non-errors may in their cumulative effect cause

error.” Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999); see Jenkins v.

State, 493 S.W.3d 583, 613 (Tex. Crim. App. 2016).

                                 V. CONCLUSION

       As with his arguments directed to the trial court’s limits on his cross-

examination of Betsy and the SANE, Golliday did not preserve his appellate argument

that his former girlfriends’ testimony was admissible character evidence to show a

pertinent trait. The trial court did not abuse its discretion by denying Golliday’s

mistrial motion because any harm arising from the State’s rhetorical questions during

its jury argument was cured by the trial court’s instruction to disregard and jury-charge

instruction.   Finally, non-errors cannot be deemed cumulative error warranting

reversal. We overrule Golliday’s remaining issues on remand and affirm the trial

court’s judgment.



                                           7
                                /s/ Lee Gabriel

                                Lee Gabriel
                                Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: April 25, 2019




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