Gerardo Buentello v. State

Affirmed and Memorandum Opinion filed May 1, 2007 Affirmed and Memorandum Opinion filed May 1, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-05-01240-CR ____________ GERARDO BUENTELLO, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Cause No. 41,070 M E M O R A N D U M   O P I N I O N Appellant, Gerardo Buentello, was indicted for the offense of aggravated sexual assault of a child. On October 27, 2005, a jury found him guilty and assessed his punishment at sixty years= confinement in the Institutional Division of the Texas Department of Criminal Justice and a $10,000 fine. We affirm. Factual and Procedural Background In October 2004, the alleged victim, appellant=s thirteen-year-old stepdaughter, told Child Protective Services (CPS) that appellant had sexually assaulted her on several occasions over a period of one or two years. The day after being confronted at home by CPS, appellant arranged to meet with CPS and made a recorded confession that his stepdaughter=s allegations were true. The authorities arrested appellant and indicted him on a charge of aggravated sexual assault of a child. During the guilt-innocence phase of his trial, appellant again conceded that, with respect to the alleged victim=s testimony pertaining to the instances of sexual assault, Ain general everything was like she said.@ Moreover, appellant admitted to instances of sexual misconduct and abuse with two other young children prior to the sexual assault of his stepdaughter. The jury found appellant guilty of aggravated sexual assault of a child, assessing his punishment at confinement for sixty years and a $10,000 fine. This appeal followed. Issue on Appeal On appeal, appellant contends that the trial court erred in ruling that lay and expert testimony of his mental status was inadmissible during the guilt-innocence phase of the trial. Appellant Did Not Preserve Error on the Issue of the Admissibility of Mental Status Evidence I. Appellant Failed to Offer Any Mental Status Evidence The State argues that appellant failed to offer any evidence of his mental status during the guilt-innocence phase of the trial. Thus, the trial court never made an admissibility ruling on which error could be based. Having reviewed the record, we agree. The record contains only two instances in which appellant discusses mental status evidence during the guilt-innocense phase of the trial: an exchange regarding a motion in limine the State filed and a brief discussion concerning the defense calling appellant=s court-appointed psychiatrist as a witness. Before trial, the State filed a motion in limine requesting, in pertinent part, that Aany comments regarding the defendant=s mental condition or status . . . be prohibited from being introduced in front of the jury until such time as the jury can be excused and a hearing be held outside the presence of the jury to determine the relevance and admissibility of any such evidence.@ At the outset of the hearing, the following exchange occurred related to this motion in limine: THE COURT: State=s Motion in Limine regarding plea offers and defendant=s mental status. Any objection? DEFENSE: What was that last, mental status, Your Honor? THE COURT: Mental Status. DEFENSE: Well, I=m going to object to that, Your Honor. At all levels of this hearing, I think we have a right to interject his mental state. THE STATE: Judge, I=m just asking that we approach the bench to determine the admissibility of the evidence that he seeks to admit before the jury to determine whether or not it=s appropriate. If he hasC THE COURT: Well, isn=t mental status a part of the element of the offense? THE STATE: Well, it=sCyes, sir, it is, as far as knowingly and intentionally. However, to try to solicit opinions about his mental condition from lay witnesses or people that are not qualified, you know, to do that, is what I object to, and I would request that we just simply approach the bench and have a hearing, if necessary, outside the presence of the jury before such evidence is blurted in front of the jury, which can=t be taken back once it is, if it=s solicited from an inappropriate witness. THE COURT: You=re not going to ask a witness to make a mental evaluation, are you? DEFENSE: No. THE COURT: You=re simply going to askC DEFENSE: I may bring up some things that tend toC if a witness knows something that he saw or something that would, would show the status of mentalC THE COURT: That relates to the case itself? DEFENSE: Right, fact situations. THE COURT: All right. DEFENSE: Not opinions. THE COURT: As to professional mental condition or status, I will grant it. As to any other, they=ll stand up to any objection that=s lodged at the time of trial. The trial court subsequently entered an order on the motion in limine restricting the defendant from introducing Aany comments regarding the defendant=s mental condition or status, as to professional evaluation only, until such time as the jury can be excused and a hearing be held outside the presence of the jury to determine the relevance and admissibility of such evidence.@ Near the completion of the guilt-innocence phase of the trial, the following exchange occurred between appellant=s trial counsel and the trial court concerning counsel=s attempt to call as a witness Dr. Axelrad, a court-appointed psychiatrist who had completed an assessment of appellant: DEFENSE: Your Honor, I had one more witness and I didn=t know, of course, the mechanics of when they were going to be needed, but I had Dr. Axelrad on call and yesterday I talked to his secretary and told him to be here at eleven. THE COURT: All right. See if you can=t have somebody get him down here earlier. DEFENSE: Okay. He said it would take about twenty-five minutes for him to get here. THE COURT: Tell him we=re ready for him now. DEFENSE: Can I make a call to my secretary to call him? THE COURT: We=ll take a fifteen minute recess at this time. DEFENSE: Thank you, Your Honor. THE BAILIFF: All rise. (Court Recessed) THE BAILIFF: All rise. (Jury Out) THE COURT: Counsel, is it your intent to rest at this time? DEFENSE: Yes, Your Honor, we would rest and close. These two parts of the record, which reflect only an intent or desire to introduce evidence of mental condition, do not support appellant=s claim that he actually offered any evidence of mental status. Thus, the court never had an opportunity to rule on the admissibility of this evidence.[1] II. A Ruling on a Motion in Limine is Not a Ruling on the Admissibility of Evidence Appellant argues that, in granting the motion in limine pertaining to mental status evidence, the court effectively excluded any presentation of this evidence. Appellant apparently relies on his objection to the motion in limine to claim that he preserved error with respect to the admissibility of this evidence. This reasoning is fundamentally flawed. The case law and the explicit wording of both the motion and the order granting the motion in limine dictate that the trial court=s ruling on the motion in limine does not constitute a ruling on the admissibility of the evidence. A ruling on a motion in limine is not a ruling on the merits, but rather one regarding the administration of the trial. Harnett v. State, 38 S.W.3d 650, 655 (Tex. App.CAustin 2000, pet. ref=d). The motion in limine merely requires that before a party may introduce evidence relating to a particular matter, a hearing must be held outside the presence of the jury to determine its admissibility. Geuder v. State, 115 S.W.3d 11, 14 (Tex. Crim. App. 2003). An objection to the ruling on the motion in limine does not preserve error with respect to the admissibility of particular evidence. See Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998); see also Webb v. State, 760 S.W.2d 263, 275 (Tex. Crim. App.1988) (declaring it is axiomatic that motions in limine do not preserve error). At this pre-trial point in the case, no evidence has been offered or excluded and thus, the reviewing court has no way of knowing what specific evidence has been excluded. Basham v. State, 608 S.W.2d 677, 679 (Tex. Crim. App. [Panel Op.] 1980); Norman v. State, 523 S.W.2d 669, 671 (Tex. Crim. App. 1975); see also Oldham v. State, 5 S.W.3d 840, 847 (Tex. Crim. App. 1999) (noting that absent a showing of what the testimony would have been, nothing is presented for review). The party must offer the evidence during trial and, if the judge refuses to admit the evidence, the party must object. Norman, 523 S.W.2d at 671. In this way, the record provides the reviewing court the necessary information to determine whether reversible error may exist. Basham, 608 S.W.2d at 679. Moreover, this procedure provides the trial court with the opportunity to reconsider the admissibility of evidence at all stages of the trial. Romo v. State, 577 S.W.2d 251, 252 (Tex. Crim. App. 1979). Further, the clear language provided in the both the motion in limine and the trial court=s order on the motion support the conclusion that the order does not determine the admissibility of the evidence. Both documents prohibit the introduction of mental status evidence Auntil such time as the jury can be excused and a hearing be held outside the presence of the jury to determine the relevance and admissibility of such evidence.@ (emphasis added) The trial court=s ruling on the motion in limine does not purport to exclude any evidence. The motion and order simply provide a mechanism for determining the evidence=s admissibility during the trial outside the presence of the jury. In short, because appellant never offered mental status evidence, he clearly did not request, receive, or object to the court=s ruling on its admissibility. Thus, appellant failed to preserve his issue for appellate review. We therefore overrule appellant=s issue. Conclusion We affirm the judgment of the trial court. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed May 1, 2007. Panel consists of Chief Justice Hedges and Justices Fowler and Edelman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Moreover, appellant did not make an offer of proof concerning the substance of Dr. Axelrad=s proposed testimony, nor did he otherwise inform the trial court how his testimony would have contributed to appellant=s defense. So, even if he had obtained a ruling from the court, we would not be able to measure the error or harm.