                         NUMBER 13-18-00211-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JAVIER LOPEZ JR.,                                                          Appellant,

                                              v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 377th District Court
                         of Victoria County, Texas.


                       MEMORANDUM OPINION
             Before Justices Benavides, Hinojosa, and Perkes
               Memorandum Opinion by Justice Benavides

      By one issue, appellant Javier Lopez Jr. argues the trial court committed error by

not allowing him to question a witness about her mental health disability. We affirm.

                                  I.    BACKGROUND

      Lopez was charged by indictment of aggravated robbery, a first-degree felony.

See TEX. PENAL CODE ANN. § 29.03. Prior to jury selection, Lopez pleaded guilty to the
indictment without a plea agreement. Lopez elected for a jury to assess punishment.

        At the sentencing hearing, Lopez intended to call his girlfriend Michelle Gomez to

testify on his behalf. Prior to her testimony, the State asked to approach the bench. The

State asked for a motion in limine regarding Gomez having a mental health disability due

to her being victimized in a prior criminal case.1 Lopez’s counsel responded that he had

spoken with Gomez, who did not want her prior case brought to the jury’s attention.

However, counsel explained that he might have to get into why Gomez receives mental

health disability benefits, which would involve some explanation of what occurred. The

State argued that the reason Gomez was on mental health disability was not relevant to

this case. Lopez’s counsel responded that “it’s relevant to show that [Lopez] has to carry

a greater load as a father in raising their kids as well as taking care of [Gomez].” Lopez’s

counsel argued to the trial court that his duties were an “indication of his character, and

it’s relevant to punishment.”           The trial court ruled counsel could discuss Lopez’s

involvement with his children, but it would not allow him to ask Gomez about her mental

disability.

        Gomez took the witness stand outside the presence of the jury. The trial court

asked her if she was currently on probation and appointed an attorney to advise her of

her rights before she testified. Lopez was advised to call another witness so Gomez

could visit with the newly appointed attorney.




        1   Lopez was not the defendant in the prior criminal action that involved Gomez.
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       Lopez called additional witnesses and testified in his own defense, but never

recalled Gomez to the stand.           Since he had pleaded guilty to the offense, the jury

assessed his sentence at thirty-five years’ imprisonment in the Texas Department of

Criminal Justice–Institutional Division and assessed a $1,200 fine. This appeal followed.

                                 II.       WITNESS TESTIMONY

       By his sole issue, Lopez argues that the trial court committed error by not allowing

him to question Gomez about her mental health disability.

       A.     Standard of Review

       We review a trial court’s decision to exclude evidence for an abuse of discretion.

Bryant v. State, 534 S.W.3d 471, 472 (Tex. App.—Corpus Christi–Edinburg 2017, pet.

ref’d). A trial court abuses its discretion if its decision is so clearly wrong as to lie outside

the zone of reasonable disagreement. Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim.

App. 2008).

       B.     Applicable Law and Discussion

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

complaining party must comply with rule 103 of the Texas Rules of Evidence by making

an offer of proof, which sets forth the substance of the proffered evidence. Mata v. State,

517 S.W.3d 257, 264 (Tex. App.—Corpus Christi–Edinburg 2017, pet. ref’d); see TEX. R.

EVID. 103(a); Reyna v. State, 168 S.W.3d 173, 176 & n.8 (Tex. Crim. App. 2005); see

also TEX. R. APP. P. 33.2 (prescribing bills of exception). The complaining party’s offer

of proof must set forth the substance of the proffered evidence. Mays v. State, 285

S.W.3d 884, 889 (Tex. Crim. App. 2009) (citing TEX. R. EVID. 103(a)(2)). Error may not


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be predicated upon a ruling which excludes evidence unless a substantial right of the

party is affected and the substance of the evidence was made known to the court by an

offer of proof or was apparent from the context within which the questions were asked.

TEX. R. EVID. 103(a)(2).     “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 trial court can determine whether

the evidence is relevant and admissible.” Mata, 517 S.W.3d at 264. “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.

       Lopez gave the trial court a vague indication as to the substance of the testimony

he wanted to elicit from Gomez.        Lopez’s counsel explained that he might have to

question Gomez about her mental health disability and how she came to suffer from it.

However, other than a vague reference, Lopez made no offer of proof with a “reasonably

specific summary of the evidence” he wished to offer nor did he dictate the “relevance of

the evidence.” Mata, 517 S.W.3d at 264. Because we cannot determine the substance

of the evidence Lopez wished to present, we are unable to determine whether that

evidence was erroneous or harmful. See Mays, 285 S.W.3d at 890. Lopez has failed

to preserve this issue for our review. See TEX. R. APP. P. 33.2; see also Mata, 517

S.W.3d at 264. We overrule Lopez’s sole issue.




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                                   III.    CONCLUSION

       We affirm the judgment of the trial court.



                                                        GINA M. BENAVIDES,
                                                        Justice

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

Delivered and filed the
22nd day of August, 2019




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