                               NUMBER 13-11-00370-CR

                                  COURT OF APPEALS

                         THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI - EDINBURG


JOE CECILIO VILLARREAL JR.,                                                         Appellant,

                                                v.

THE STATE OF TEXAS,                                                                   Appellee.


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


                               MEMORANDUM OPINION

           Before Chief Justice Valdez and Justices Garza and Vela
                  Memorandum Opinion by Chief Justice Valdez

       Appellant, Joe Cecilio Villarreal Jr., was convicted of murder, see TEX. PENAL

CODE ANN. § 19.02(b)(3) (West 2011), a first-degree felony, and intoxication assault,

see id. § 49.07 (West 2011), a third-degree felony enhanced to a second-degree

felony.1 Appellant was sentenced to sixty years for the murder and ten years for the

       1
        The jury found that appellant was a repeat felony offender. See TEX. PENAL CODE ANN. § 12.42
(West Supp. 2011).
intoxication assault, and the sentences were ordered to run concurrently. By one issue,

appellant contends that during the punishment phase of the trial, the trial court

improperly prevented his trial counsel from eliciting “background evidence that

illuminates aspects of [his] life helpful to the jury in fairly assessing punishment.” We

affirm.

                                        I.       BACKGROUND

          During the punishment phase of trial, appellant presented testimony from, among

others, Larry Helms, Russell Cain, and Marilyn Tranel.2 While Helms was testifying, the

State objected, arguing that Helms had not known appellant prior to the criminal

offenses and that appellant was attempting to elicit improper character evidence. The

trial court instructed defense counsel to confine his questioning to Helms’ knowledge of

appellant’s reputation.       Defense counsel agreed.            The prosecutor further objected,

stating that he did not believe that Helms could testify regarding appellant’s reputation.

The trial court disagreed and stated that if the witness answered that he was aware of

appellant’s reputation, the witness would be allowed to testify regarding appellant’s

reputation.

          When asked if he was familiar with appellant’s reputation, Helms replied that it

was “a difficult question to answer” and stated, “He served in our church, came to

church on a regular basis. We greeted each other in the lobby. My interaction with him

seemed to be a strong person of faith.” Appellant’s trial counsel asked Helms how he

came to that conclusion and Helms said, “Him stopping and talking to me coming in and

out of church each week.” Trial counsel asked, “Does [appellant] have a reputation in

          2
          In the record, this witness is identified as “Marilyn Tramel” and “Marilyn Tramer”; however, the
witness introduced herself as “Marilyn Tranel” during her testimony.


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your church as being someone there that—someone that is there regularly?” Helms

responded, “Yes, sir.” The trial court interjected, stating that although he would allow

the testimony to be admitted, trial counsel was eliciting improper character evidence.

Defense counsel finished his examination of Helms, passed the witness, and the State

cross-examined him. Defense counsel and the State excused Helms as a witness.

       Russell testified next, stating that he had known appellant and his wife for about

a year and a half. The State objected on the basis that Russell had only known the

appellant after the offenses were committed. The prosecutor stated, “I don’t think any

character evidence is relevant in this case.” The trial court replied that Russell could

testify about appellant’s reputation but would not be allowed to testify regarding “specific

acts of character.”

       After Russell’s testimony, defense counsel asked for a hearing outside the

presence of the jury, and the trial court complied. During the hearing, defense counsel

stated that he wished to “submit a bill of what and proffer what” he anticipated each

witness would testify about concerning appellant’s reputation.           Defense counsel

explained that he was not asking that the trial court admit “specific acts” but that he was

merely requesting admission of “reputation evidence of who he is.” The prosecutor

argued that pursuant to rule 405(a), he objected to any character evidence “from a

witness who does not know the basis of that reputation prior to the day of the offense or

didn’t form their opinion about [appellant] prior to the day of the offense.” See TEX. R.

EVID. 405. The prosecutor agreed that “more leeway” should be given to any witness

who knew appellant prior to the offenses, but that he was objecting to any character

evidence “from a witness who either they didn’t hear about [appellant’s] reputation prior



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to the day of the offense[s] and didn’t form their own opinion of [appellant’s] character

prior to the date of the offense[s].” Defense counsel stated that he did not disagree with

“the [prosecutor’s] interpretation of either rule he referenced” but that he understood the

trial court’s ruling to be that he could not ask the witnesses “anything other than his

reputation as a law-abiding citizen and can’t go past that.” The trial court stated, “I think

that’s what that Rule says. Well, no. No. No. . . . You can’t go past that unless he

brings it up on cross examination.”

       Defense counsel objected to the trial court’s limitation on his questioning the

witnesses and “proffered a bill about what each witness [would] testify to.” Defense

counsel then stated the following:

               Your Honor, with regard to [Helms] who has already testified, I
       would have proffered that he would have talked about [appellant’s]
       reputation in the church and reputation for how that affects his ability to
       follow the law.

              I would also tender to the [trial] court that he was prepared to testify
       about [appellant’s] faith and how that causes him—his actions under the
       law in the State of Texas. Next, we would call Danny Pena and Danny
       Pena is prepared to testify about [appellant’s] community involvement.[3]

                 ....

              He’s going to talk about his work ethic, how he helps, his law-
       abiding nature is to help those around him and those in need and the
       general character of [appellant].

                 ....

              He’s not going to talk about any specific act. He’s going to talk
       about a general trait, that he’s willing to do whatever is needed for others.
       I would next call Cheri Cain. [She] has known [appellant] for twelve years.
       She’s familiar with him in the community and his reputation in the
       community and she’s going to talk about that.


       3
           Danny Pena did not testify at the punishment phase of appellant’s trial.


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The prosecutor stated that he had no objection to Cheri’s testimony.

       The trial court reminded defense counsel that he was not allowed to elicit

character evidence and that he could elicit testimony regarding appellant’s reputation.

The trial court also reiterated that defense counsel should not ask about specific acts

and clarified that defense counsel could ask questions regarding what other people

thought about appellant.

                                    II.    DISCUSSION

       On appeal, appellant does not specify what admissible evidence the trial court

excluded and only generally cites to the hearing held outside the presence of the jury.

Thus, we will assume that appellant complains of the exclusion of the testimony offered

by defense counsel in the hearing outside the jury’s presence. During that hearing,

defense counsel stated that Helms would talk about appellant’s “reputation in the church

and reputation for how that affects his ability to follow the law.” The trial court did not

specifically exclude this evidence, but instead told defense counsel he would be limited

to asking questions regarding appellant’s reputation and would not be allowed to inquire

into specific acts.

       The proponent of the evidence must tell the trial court why the evidence is

admissible. Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) (“The basis

for party responsibility is, among other things, Appellate Rule 33.1. It provides that as a

prerequisite to presenting a complaint for appellate review, the record must show that

the party ‘stated the grounds for the ruling that [he] sought from the trial court with

sufficient specificity to make the trial court aware of the complaint.’ So it is not enough

to tell the judge that evidence is admissible. The proponent, if he is the losing party on



                                            5
appeal, must have told the judge why the evidence was admissible.”); Martinez v. State,

91 S.W.3d 331, 335–36 (Tex. Crim. App. 2002) (“Thus, the party complaining on appeal

(whether it be the State or the defendant) about a trial court’s admission, exclusion, or

suppression of evidence ‘must, at the earliest opportunity, have done everything

necessary to bring to the judge’s attention the evidence rule [or statute] in question and

its precise and proper application to the evidence in question.’”) (citations omitted).

Here, appellant did not tell the trial court what specific acts Helms would relate during

his testimony. He also did not state the basis for the admission of those specific acts.

Therefore, error, if any, by the trial court in limiting Helm’s testimony regarding specific

acts is not preserved for our review. See Reyna, 168 S.W.3d at 176; Martinez, 91

S.W.3d at 335–36.

       However, regarding Helms’ testimony about appellant’s faith, even assuming

without deciding, that the trial court should have allowed such testimony, we conclude

that the error, if any, was harmless because we are convinced beyond a reasonable

doubt that the trial court’s ruling made no contribution to the jury’s determination of

appellant’s sentence. See Smith v. State, 919 S.W.2d 96, 102–103 (Tex. Crim. App.

1996) (plurality opinion) (finding that the error in admitting victim impact evidence during

the punishment phase was harmless beyond a reasonable doubt).               The trial court

allowed appellant to present evidence of appellant’s good reputation. During closing

argument, defense counsel stated that appellant was a good person and that everyone

who had encountered appellant had testified that appellant was a good and hard-

working person.




                                             6
       During its closing argument, the State acknowledged that appellant is a “nice

guy.” The State, however, pointed out that appellant killed his victim after driving his

vehicle with a blood alcohol level of .27. Also, the State presented ample evidence at

the punishment phase of the trial regarding appellant’s criminal history, including that:

(1) appellant had pleaded guilty to felony driving while intoxicated on April 5, 2001 and

was sentenced to three years’ incarceration; (2) appellant was convicted of “driving

while intoxicated subsequent offense” on August 4, 1992 and was placed on community

supervision for a period of five years that was extended for two years; (4) appellant had

pleaded guilty to the felony offense of operating a motor vehicle while intoxicated on

June 26, 1990 and had been sentenced to forty-five days’ confinement with his license

suspended for one year; (5) appellant was indicted by a grand jury on January 20, 1989

for the offense of driving while intoxicated on December 18, 1988; and (6) appellant had

been convicted of driving and operating a motor vehicle in a public place while

intoxicated on February 12, 1987 and on October 12, 1982. Finally, the State told the

jury that it was irrelevant that appellant was a “nice guy” because appellant “continued

to put our community at danger [sic] his entire adult life until he finally, finally he killed

somebody.” The State averred that although appellant probably did not intend to kill

anyone, he “knew it was going to be a possibility when he kept doing the same conduct

over and over and over again.”

       The trial court allowed defense counsel to question Helms regarding appellant’s

reputation in the church and his record of attendance. Helms testified that appellant

had “served” in their church and went to church on a regular basis. He further stated

that appellant was “a strong person of faith” and had a reputation of being at church



                                              7
regularly.   Defense counsel did not ask Helms any questions regarding appellant’s

ability to follow the law, and the trial court did not prevent defense counsel from asking

such a question. Therefore, to the extent that appellant complains on appeal that the

trial court prevented him from asking Helms such a question; we conclude that this

complaint is also without merit. See TEX. R. APP. P. 33.1 (providing that to preserve

error, the defendant must make a timely request or objection and obtain a ruling from

the trial court).

       Furthermore, under rule 103, reviewable error “may not be predicated upon a

ruling which admits or excludes evidence unless a substantial right of the party is

affected.” TEX. R. EVID. 103(a). Here, appellant has not shown that the exclusion of

Helms’ testimony regarding appellant’s faith affected a substantial right.        See id.

Finding no harm, we overrule appellant’s sole issue.

       Finally, as a sub-issue, appellant asserts that the trial court limited Tranel’s

testimony based on the State’s objections, which “interrupted the flow of mitigating

testimony.” Appellant has not presented a clear and concise argument with citation to

appropriate authority in support of this assertion. See id. R. 38.1(i). Therefore, we

conclude that it is inadequately briefed. We overrule appellant’s sub-issue.

                                   III.   CONCLUSION

       We affirm the trial court’s judgments.

                                                       __________________
                                                       ROGELIO VALDEZ
                                                       Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
19th day of July, 2012.

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