      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-12-00456-CR



                                Dwayne Edward Nash, Appellant

                                                   v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
        NO. 39596, HONORABLE LLOYD DOUGLAS SHAVER, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury convicted appellant Dwayne Edward Nash of the offense of murder. See

Tex. Penal Code § 19.02. Punishment was assessed at 75 years’ imprisonment. In two points of

error on appeal, Nash asserts that he was denied his constitutional right to confront one of the State’s

witnesses at trial and that the State failed to disclose impeachment evidence relating to that same

witness. We will affirm the judgment.


                                          BACKGROUND

                Nash was charged with intentionally or knowingly causing the death of Coy Dowdle,

the adult son of Nash’s live-in girlfriend, Sue Dowdle. The evidence presented at trial tended to

show that, on or about November 22, 2009, Nash and Coy got into a violent altercation at Sue’s

house and that, by the end of the fight, which had involved knives and possibly other weapons,

Coy was on the floor, bleeding to death. Sue, who was present during the altercation, called 911
after the fight had ended and reported that her son had accidentally stabbed himself. When EMS

arrived, Coy was dead and Nash was sitting on the floor, covered in blood. Law enforcement arrived

shortly thereafter and soon concluded that a crime had been committed. The subsequent criminal

investigation ultimately led to Nash being indicted for murder. The case was tried before a jury,

which found Nash guilty as charged and assessed punishment as noted above. The district court

sentenced Nash in accordance with the jury’s verdict. Subsequently, Nash filed a motion for new

trial, which was denied by the district court following a hearing. This appeal followed.


                                           ANALYSIS

Exclusion of evidence

               In his first point of error, Nash asserts that the district court denied him his

constitutional right to confront the witnesses against him when it excluded evidence that tended to

impeach one of the State’s witnesses. The witness was Anthony “Tony” McDaniel, a neighbor of

the Dowdles who did carpentry work for Coy and who was familiar with the relationship between

Sue and Nash. According to McDaniel, Sue and Nash would often argue and, following their

arguments, Sue would call Coy and complain about Nash. McDaniel testified that this upset Coy,

who was worried about his mother’s well-being.

               On cross-examination, defense counsel attempted to elicit testimony from McDaniel

concerning his past drug use and criminal history. However, the district court did not allow counsel

to question McDaniel extensively about these matters, sustaining the State’s objections to such

questions. In response to the State’s objections, Nash did not attempt to explain why he believed

the evidence was admissible or how its exclusion adversely affected his defense or otherwise



                                                 2
violated his rights. Instead, he requested a bill of exceptions and made the following offer of proof

outside the presence of the jury:


       Q       Sir, you have been convicted of possession of a controlled substance, right?

       A       That’s correct.

       Q       And being convicted of possession of a controlled substance, do you have a
               history with drugs?

       A       That’s correct.

       Q       What is [] your drug of choice?

       A       Methamphetamine.

       Q       How long have you used methamphetamine?

       A       Thirty years.

       Q       And you agree with me that methamphetamine is a drug that is addictive?

       A       Absolutely.

       Q       And that its use is not necessarily one time but over and over and over?

       A       That’s correct.

       Q       Have you used methamphetamine intravenously?

       A       Yes.

       Q       And using methamphetamine intravenously gets into your system quicker,
               more powerful, correct?

       A       Yes.

       Q       Would you agree with me that methamphetamine, especially after having put
               into your body intravenously, is extremely addictive?

       A       Extremely what?

                                                 3
Q   Addictive.

A   Yes.

Q   My question to you is: Were you under the influence of methamphetamine
    on any of those three occasions you testified about [when] you went with Coy
    to Sue Dowdle and Eddie Nash’s home?

A   No.

Q   When is the last time you had used methamphetamine prior to any of those
    events?

A   Before I went to prison.

Q   And when is the last date that you used methamphetamine?

A   Oh, I don’t know that.

Q   What year?

A   ‘05.

Q   And why is your parole being revoked?

A   Failure to maintain residence, couldn’t pay my rent.

Q   And that’s the sole reason why you are being revoked on parole?

A   Failure to report.

Q   And there’s no other violations?

A   There’s no other violation.

Q   And were you aware of Coy having a drug history?

A   Yes.

Q   And what drug history were you aware of Coy having?

A   I knew when he was a teenager he drank and did a little bit of everything back
    then, I guess.

                                       4
       Q       But in the 10 to 12 weeks you worked for him, you weren’t aware of his drug
               history?

       A       Oh, no.

       Q       And what causes you to be here today to testify?

       A       I was subpoenaed.

       Q       And has anybody with the State made any representation to you about the
               outcome of your parole revocation based on your testimony today?

       A       Absolutely not.


Counsel then stated, “That completes my bill, Your Honor.” Counsel did not argue any possible

grounds on which he thought the above testimony was admissible, and he cited to no case law,

constitutional provisions, or rules of evidence as authority for why he believed the testimony should

be admitted. The district court made the following ruling: “You’ll be allowed to ask him if he has

a prior conviction for a felony or a misdemeanor involving moral turpitude. He’ll answer that and

that limits your inquiry. Go on to something else.” Counsel did not object to the district court’s

ruling on any ground. Instead, he complied with the district court’s instructions and asked McDaniel

if he was testifying on behalf of the State and whether he was a convicted felon. To both of these

questions, McDaniel answered, “Yes.” Counsel then stated, “Pass the witness.”

               Now, for the first time on appeal, Nash argues that the exclusion of the above

evidence, specifically the testimony relating to McDaniel’s pending parole revocation, violates

Nash’s constitutional right to confront the witnesses against him. His specific argument, as set out in

his brief, is the following: “Because McDaniel was on parole and had a parole revocation pending,

Appellant had the constitutional right, under the Confrontation Clause, to fully examine McDaniel



                                                  5
as to any ‘possible biases, prejudices, or ulterior motives’ he may have had for giving the testimony

he did.” See U.S. Const. amend. VI; Davis v. Alaska, 415 U.S. 308, 316 (1974); Hammer v. State,

296 S.W.3d 555, 562-63 (Tex. Crim. App. 2009). In response, the State argues that Nash failed to

preserve error on this point by not presenting this argument to the district court. In a reply letter

brief, Nash asserts that the bill of exceptions was sufficient to preserve error because, in his view,

“[t]he trial court and counsel for the State each understood exactly what defense counsel was asking

and what he was attempting to do.”

                We agree with the State that Nash failed to preserve error. As a prerequisite to

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

the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the

complaining party sought from the trial court with sufficient specificity to make the trial court aware

of the complaint, unless the specific grounds were apparent from the context; and that the trial court

ruled on the request, objection, or motion, either expressly or implicitly. Tex. R. App. P. 33.1(a).

As a general rule, to preserve error in the exclusion of evidence, the proponent is required to

make an offer of proof showing what the excluded testimony would have been and to obtain a ruling

on whether such testimony is admissible. See Williams v. State, 937 S.W.2d 479, 489 (Tex. Crim.

App. 1996); Stewart v. State, 686 S.W.2d 118, 122 (Tex. Crim. App. 1984); see also Tex. R. Evid.

103(a)(2). However, to preserve error in the exclusion of evidence, “it is not enough to tell the judge

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

proponent, if he is the losing party on appeal, must have told the judge why the evidence was

admissible.” Id. This is particularly true when the basis for admitting evidence could be either

under the Rules of Evidence or the Confrontation Clause, which involve different standards for

                                                   6
admissibility and policy considerations. “When a defendant’s objection encompasses complaints

under both the Texas Rules of Evidence and the Confrontation Clause, the objection is not

sufficiently specific to preserve error.” Id. at 179.

                Here, Nash never explained to the district court why he believed the evidence was

admissible, either under the Rules of Evidence or the Confrontation Clause. In fact, he said nothing

at all about his reason for eliciting the testimony, and, contrary to Nash’s assertion in his letter brief,

there is nothing in the record which suggests that the district court or counsel for the State

understood what Nash was attempting to do. He could have been attempting to admit the evidence

under the Rules of Evidence, which allows for the impeachment of a witness with prior bad acts

under a limited set of circumstances, see Tex. R. Evid. 613(b), or he could have been attempting to

admit the evidence under the Confrontation Clause, which allows for the impeachment of a witness

under a broader set of circumstances. See Davis, 415 U.S. at 316-17. Because Nash “did not clearly

articulate” that the Confrontation Clause demanded admission of the evidence, the district court

“never had the opportunity to rule upon” this rationale. See Reyna, 168 S.W.3d at 179 (citing Clark

v. State, 881 S.W.2d 682, 694 (Tex. Crim. App. 1994)). “As the losing party, [Nash] must ‘suffer

on appeal the consequences of his insufficiently specific offer.’” Id. (quoting Jones v. State,

843 S.W.2d 487 (Tex. Crim. App. 1992)); see Tex. R. App. P. 33.1(a).

                Additionally, even if we could conclude that Nash had preserved error, we could

not conclude on this record that the district court abused its discretion in excluding the evidence.

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

v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008). The test for abuse of discretion is

whether the trial court acted arbitrarily or unreasonably, without reference to any guiding rules or

                                                    7
principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). A trial court abuses

its discretion only when its decision “is so clearly wrong as to lie outside that zone within

which reasonable persons might disagree.” McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim.

App. 2005).

                “The Sixth Amendment right to confront witnesses includes the right to

cross-examine witnesses to attack their general credibility or to show their possible bias, self-interest,

or motives in testifying.” Hammer, 296 S.W.3d at 561 (citing Davis, 415 U.S. at 316). “This right

is not unqualified, however; the trial judge has wide discretion in limiting the scope and extent

of cross-examination.” Id.; see also Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (“[T]rial

judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable

limits on such cross-examination based on concerns about, among other things, harassment,

prejudice, confusion of the issues, the witness’[s] safety, or interrogation that is repetitive or only

marginally relevant.”).

                In this case, Nash is arguing that evidence concerning McDaniel’s pending parole

revocation is admissible to show the witness’s bias in favor of testifying for the State. However,

for such evidence to be admissible, “[t]he proponent of evidence to show bias must show that

the evidence is relevant.” Woods v. State, 152 S.W.3d 105, 111 (Tex. Crim. App. 2004). “The

proponent does this by demonstrating that a nexus, or logical connection, exists between the

witness’s testimony and the witness’s potential motive to testify in favor of the other party.” Id. In

other words, a showing must be made that the witness “had the expectation that he would be

rewarded for testimony favorable to the State or punished for testimony that was unfavorable to

the State.” Id. at 112. Here, it would not be outside the zone of reasonable disagreement for the

                                                    8
district court to conclude that Nash failed to make such a showing. Although McDaniel testified that

he had been subpoenaed by the State, no testimony was elicited tending to show that McDaniel

expected to be rewarded for testimony favorable to the State or punished for testimony that

was unfavorable to the State. In fact, when counsel asked McDaniel if “anybody with the State

[has] made any representation to you about the outcome of your parole revocation based on

your testimony today,” McDaniel answered, “Absolutely not.” Accordingly, the district court would

not have abused its discretion in concluding that Nash’s offer of proof did not establish a nexus

between McDaniel’s testimony and his parole status, and in excluding the evidence on that ground.

See id.; Carpenter v. State, 979 S.W.2d 633, 634-35 (Tex. Crim. App. 1998); see also Irby v.

State, 327 S.W.3d 138, 147-48 (Tex. Crim. App. 2010) (“[A] ‘vulnerable relationship’ based on a

witness’s pending charges or probationary status does not hover cloud-like in the air, ready to

rain down as impeachment evidence upon any and all such witnesses. There must be some logical

connection between that ‘vulnerable relationship’ and the witness’s potential motive for testifying

as he does.”). We overrule Nash’s first point of error.


Failure to disclose impeachment evidence

               In his second point of error, Nash asserts that the State failed to disclose impeachment

evidence relating to witness McDaniel. Specifically, Nash claims that McDaniel, instead of having

his parole revoked, was released from custody three days following the hearing on Nash’s motion

for new trial. According to Nash, “an examination of [McDaniel’s] parole status shows that the date

of his actual release on parole was such that the State and its agents must be deemed to have

withheld material exculpatory evidence in violation of Appellant’s Due Process rights.” “If properly



                                                  9
revealed,” Nash contends, “that evidence could have been used to impeach McDaniel because of his

realistic expectation that the State would help him get an early parole.”

               Nash’s argument implicates the State’s duty to disclose certain evidence pursuant

to Brady v. Maryland, 373 U.S. 83 (1963). A defendant in a criminal case has no general right

to pretrial discovery of evidence in the State’s possession. Hall v. State, 283 S.W.3d 137, 163

(Tex. App.—Austin 2009, pet. ref’d). However, under Brady and its progeny, the United States

Supreme Court has recognized “what amounts to a federal constitutional right to certain

minimal discovery.” Id. (quoting 42 George E. Dix. & Robert O. Dawson, Texas Practice: Criminal

Practice and Procedure § 22.21 (2d ed. 2001)). These authorities hold that “[t]o protect a criminal

defendant’s right to a fair trial, the Due Process Clause of the Fourteenth Amendment to the

United States Constitution requires the prosecution to disclose exculpatory and impeachment

evidence to the defense that is material to either guilt or punishment,” Ex parte Reed, 271 S.W.3d

698, 726 (Tex. Crim. App. 2008), and that the State’s failure to comply with this duty constitutes

harm requiring reversal and a new trial. See Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim.

App. 2002).

               To establish a due process violation under Brady, a defendant must show that: (1) the

State failed to disclose evidence in its possession; (2) the withheld evidence is favorable to the

defendant; and (3) the evidence is “material,” that is, there is a reasonable probability that had

the evidence been disclosed, the outcome of the trial would have been different. Webb v. State,

232 S.W.3d 109, 114 (Tex. Crim. App. 2007) (citing Hampton, 86 S.W.3d at 612). The evidence

may be material to either guilt or punishment. Brady, 373 U.S. at 87. Evidence that could be used

effectively to impeach a prosecution witness is evidence favorable to the defendant for Brady

                                                10
purposes. See United States v. Bagley, 473 U.S. 667, 676 (1985); Arroyo v. State, 117 S.W.3d 795,

798 n.1 (Tex. Crim. App. 2003).

                This issue is being raised for the first time on appeal. Brady claims are typically

raised in a motion for new trial. See, e.g., Clarke v. State, 270 S.W.3d 573, 580-81 (Tex. Crim.

App. 2008); Keeter v. State, 175 S.W.3d 756, 760-61 (Tex. Crim. App. 2005); Hall, 283 S.W.3d

at 154. This is because “a Brady claim requires that the defendant show by a preponderance of the

evidence that evidence was withheld, that it was favorable to the defense, and that the evidence

was material.” Keeter, 175 S.W.3d at 760. Such a showing can be made with evidence presented

at a hearing on a motion for new trial. See Hall, 283 S.W.3d at 175-79 (reversing appellant’s

sentence and remanding for new trial on punishment based on evidence presented at hearing on

motion for new trial). In this case, however, Nash failed to raise a Brady claim in the court below,

either in his written motion for new trial or at the subsequent hearing on that motion. Accordingly,

Nash has failed to preserve error on this issue. See Keeter, 175 S.W.3d at 759-60; Jones v. State,

234 S.W.3d 151, 158 (Tex. App.—San Antonio 2007, no pet.). Cf. Clarke, 270 S.W.3d at 580

(holding that failure to raise Brady claim in written motion for new trial is excused under certain

circumstances, so long as Brady claim is subsequently addressed at hearing on motion for new trial;

“all that is required” is that “argument was presented to the trial judge in time for him to rule on it”).

                However, Nash claims that because McDaniel was not released from custody until

after the motion for new trial was denied, “the first opportunity to present any court with this

information is in the present brief.” Assuming without deciding that this is true,1 we are aware of


        1
          Considering that McDaniel’s parole status was an issue that Nash attempted to raise during
trial, we are skeptical of this claim.

                                                   11
no authority that would allow us to waive the error-preservation requirement under these

circumstances. But even if we were to conclude that error preservation was not required here, we

could not conclude on this record that the State failed to comply with Brady. Other than McDaniel’s

testimony during Nash’s offer of proof at trial, in which McDaniel testified that his parole was being

revoked, there is nothing in the record relating to McDaniel’s current or past parole status or to

the State’s alleged possession or withholding of evidence related to McDaniel’s parole status.

Consequently, we cannot determine on this record whether the State failed to disclose evidence in

its possession, whether the withheld evidence is favorable to the defendant, or whether the evidence

is “material” to either guilt or punishment.2

               Apparently anticipating that we might find this record inadequate to support his

claims, Nash requests, as an alternative to reversal, that we “abate the appeal and remand the case

to the trial court so that Appellant can properly litigate his motion for new trial and further develop

the foundation for his Constitutional claim.” In effect, Nash wants us to suspend the appellate rules

relating to motions for new trial in criminal cases, see Tex. R. App. P. 21, and allow him to

file a new or amended motion for new trial in the district court that addresses his Brady claim. See

Tex. R. App. P. 2 (allowing appellate courts to suspend appellate rules in certain circumstances).

However, the court of criminal appeals has instructed intermediate appellate courts not to use Rule 2

in such a manner, “absent truly extraordinary circumstances.” See Oldham v. State, 977 S.W.2d 354,




       2
          Although not dispositive, we note that the State represents in its brief that it “had no
knowledge whatsoever that McDaniel was placed back on parole after Appellant’s trial. In fact, the
first knowledge the State had of that fact was reading about it in Appellant’s brief.”

                                                  12
360 (Tex. Crim. App. 1998). We do not find such circumstances present here.3 We overrule Nash’s

second point of error.


                                        CONCLUSION

               We affirm the judgment of the district court.




                                             __________________________________________

                                             Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Rose

Affirmed

Filed: August 21, 2013

Do Not Publish




       3
         We note that Nash is not without a remedy. He may file a post-conviction writ of habeas
corpus alleging a Brady violation. See Tex. Code Crim. Proc. art. 11.07.

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