                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00115-CR

STEPHANY PAUL JONES,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2012-877-C2


                          MEMORANDUM OPINION


       Stephany Paul Jones was convicted of two counts of aggravated robbery and

sentenced to 30 years in prison in each count. TEX. PENAL CODE ANN. § 29.03 (West

2011). Because Jones did not preserve his issue for review on appeal, we affirm the trial

court’s judgment.

       In his sole issue, Jones contends fundamental error occurred when Jones’s trial

counsel “was thwarted from presenting            the defensive    theory of mistaken

identification.”
        On cross-examination of the State’s primary witness, Jones’s trial counsel

presented the witness with two photographs and was asked if she recognized the man

in those photographs. The State asked to view the photos and then asked for the matter

to be taken up outside the presence of the jury. Once the jury was recessed, the State

objected to the admission of the photos because it contended they were irrelevant, were

not authenticated, and contained hearsay. Jones’s counsel informed the trial court that

the photos had not been offered but that the witness was only asked if she could

recognize the person in the photos.

        The trial court allowed the witness to answer the question proffered. She stated

that the face looked familiar, but she could not say who the person was. The State re-

urged its objections, to which Jones’s counsel replied that she was only asking if the

witness could identify the pictures. When asked by the trial court if that was all counsel

was going to ask, counsel replied yes. The court then asked the State if it had an

objection to that question. The State replied that it did because if the witness could not

identify the person in the photos, there was no relevance in showing the witness the

photos in front of the jury. The State suspected that there would be an insinuation that

this person in the photos actually committed the robbery. Jones’s counsel agreed with

the State that if the witness could not identify the person, then counsel could not ask the

witness whether the person in the photos participated in the robbery.




Jones v. State                                                                       Page 2
        The trial court then asked Jones’s counsel if she wanted to ask the question in

front of the jury. Counsel replied, “I wanted to ask the question that’s been asked. I

don’t have to ask the question – if they don’t want me to, I will not…I’m fine with

that...I’ve got my answer….”

        On appeal, Jones admits that the trial court did not rule on the propriety of the

question to be asked and that to preserve error, Jones was required to obtain a ruling.

See TEX. R. APP. P. 33.1(a)(2). He argues, however, that he did not need to preserve error

because his trial counsel was “intimidated” into withdrawing the question and was

thus prevented from presenting a defense.

        We have read the record excerpt of the proffer and exchange by the parties and

the court outside the presence of the jury and find no intimidation present. Counsel

wanted to know what the witness would say and received her answer. She agreed that

because the witness could not identify the person in the photos, she would not be able

to ask whether the person participated in the robbery. Further, the failure to preserve

error forfeits complaints on appeal about the admissibility or exclusion of evidence

even though the error may concern a defendant’s constitutional right such as the right

to present a defense. See Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009);

Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002); Broxton v. State, 909 S.W.2d

912, 918 (Tex. Crim. App. 1995). Because error was not preserved, Jones has forfeited




Jones v. State                                                                      Page 3
his right to complain on appeal. See Reyna v. State, 168 S.W.3d 173, 176 (Tex. Crim. App.

2005) (the party who complains on appeal has the responsibility to preserve error).

        His sole issue is overruled, and the trial court’s judgment is affirmed.




                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 29, 2014
Do not publish
[CRPM]




Jones v. State                                                                        Page 4
