                           NUMBER 13-12-00550-CR

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

MILTON TYRONE MITCHELL,                                                 Appellant,


                                         v.


THE STATE OF TEXAS,                                                     Appellee.


                On appeal from the 2nd 25th District Court
                      of Gonzales County, Texas.


                       MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Benavides and Longoria
             Memorandum Opinion by Justice Longoria
      In one issue, appellant, Milton Tyrone Mitchell, challenges his conviction for

murder, a first-degree felony. TEX. PENAL CODE ANN. § 19.02 (West 2011). We affirm.
                                            I. BACKGROUND1

       The State indicted appellant for the murder of Dyron Green, a coworker, following

an argument at their workplace. Multiple witnesses testified regarding the confrontation

between appellant and the victim. Tabitha Eldridge, the wife of appellant’s supervisor,

testified that the victim stated that “he shot me” and pointed towards appellant to identify

him. The State indicted appellant for murder, and the case was tried to a jury. The jury

returned a verdict of guilty and assessed eighty years’ imprisonment and a fine of

$10,000. This appeal followed.

                                             II. DISCUSSION

   A. Exclusion of Evidence

       In his sole issue, appellant challenges the trial court’s refusal to permit appellant

to testify regarding the victim’s past criminal offenses.

       1. Standard of Review

       We review the trial court’s admission or exclusion of evidence for abuse of

discretion. Rivera v. State, 130 S.W.3d 454, 460 (Tex. App.—Corpus Christi 2004, no

pet.). The trial court abuses its discretion when it acts “without reference to guiding

rules or principals.” Id. Put another way, an abuse of discretion occurs when the trial

court’s decision lies outside of the “zone of reasonable disagreement.” Lane v. State,

933 S.W.2d 504, 520 (Tex. Crim. App. 1996).

       2. Applicable Law

       An appellant who complains that the trial court erroneously excluded evidence

must make an offer of proof unless the substance of the evidence is apparent from the


       1
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to our decision. See TEX. R. APP. P. 47.1.

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context. TEX. R. EVID. 103(a)(2); Montgomery v. State, 383 S.W.3d 722, 726 (Tex.

App.—Houston [14th Dist.] 2012, no pet.).        The purpose of this requirement is to

“enable an appellate court to determine whether the exclusion was erroneous or

harmful.” Id. (citing Mays v. State, 285 S.W.3d 884, 890 (Tex. Crim. App. 2009)). Even

when error is preserved and the ruling was erroneous, the ruling must have affected a

substantial right of appellant. TEX. R. EVID. 103(a).

       3. Discussion

       At trial, the following exchange occurred on direct examination between appellant

and his counsel:

                     Q. Are you — were you aware of him having any —
                     committing any violent acts in the past?

                     A. Oh, he done been to the penitentiary a couple of
                     times.

                     Q. Do you know what for?

                     A. One of these —

                     Prosecutor: I object to hearsay.

                     Witness: Excuse me?

                     The Court: Wait. When a lawyer stands up to
                     object, you stop.

                     Prosecutor: I'm going to object to hearsay.

                     The Court: Sustained.

                     Defense Counsel: Goes to his present sense—
                     The Court: Approach the Bench, Counsel.
                     (At the Bench, on the Record).

                     The Court: If he has a history of violence of which this
                     guy is aware, that's all well. But him speaking of
                     specific convictions that he doesn't know about — if

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                     you have a — a judgment or something you want to
                     introduce into evidence, that's one thing. But I don't
                     want this guy testifying to hearsay that he doesn't
                     know about. But if he has specific acts of violence that
                     the Defendant was aware about before the incident,
                     then that's admissible.

       Appellant now argues that the trial court erred in excluding appellant’s testimony

because his fear of the victim was admissible through the exception to the hearsay rule

for an existing mental, emotional or physical condition.        See TEX. R. EVID. 803(3);

Martinez v. State, 17 S.W.3d 677, 689 (Tex. Crim. App. 2000) (en banc). Appellant

argues that the trial court’s ruling affected his substantial rights because it did not allow

him to fully explain his state of mind at the time of the crime. We have reviewed the

record, and appellant nowhere made an offer of proof of the testimony he wished to

provide.   Appellant has therefore failed to preserve error.        See Montgomery, 383

S.W.3d at 726.

       Accordingly, we overrule appellant’s sole issue.

                                        III. CONCLUSION

       We affirm the judgment of the trial court.


                                                    _______________________
                                                    NORA L. LONGORIA
                                                    Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
25th day of April, 2013.




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