Reginald Piper v. State

Affirmed and Memorandum Opinion filed May 20, 2008 Affirmed and Memorandum Opinion filed May 20, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00409-CR ____________ REGINALD PIPER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 182nd District Court Harris County, Texas Trial Court Cause No. 1053423 M E M O R A N D U M   O P I N I O N Appellant, Reginald Piper, appeals from his conviction for sexual assault of a child under 17 years of age. A jury found appellant guilty and assessed his punishment at 45 years in prison. In his sole issue, appellant contends that the trial court erred by excluding evidence during the punishment phase that the complainant had consensual sexual intercourse after the assault. We affirm. Background Complainant testified that appellant sexually assaulted her at her school when she was fourteen years old.[1] The parties are well-aware of the details of her testimony, so they need not be recounted here. Also during the guilt-innocence phase, defense counsel elicited testimony from complainant=s father regarding complainant=s demeanor when she told him about the assault and concerning his position on premarital sex. During the punishment phase, defense counsel sought to introduce evidence about appellant=s telling police officers that subsequent to the assault she became curious about sex and engaged in consensual intercourse. The trial court refused to admit this evidence. Analysis In his sole issue, appellant contends that the trial court erred by excluding evidence during the punishment phase that the complainant engaged in consensual sexual intercourse after the assault. Specifically, appellant argues that the evidence was admissible under Texas Rule of Evidence 412. Tex. R. Evid. 412.[2] We generally review a trial court=s order excluding evidence under an abuse of discretion standard. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). Under Rule 412(b), in a prosecution for sexual assault, evidence of specific instances of an alleged victim=s sexual behavior is not admissible, unless: (1) such evidence is admitted in accordance with paragraphs (c) and (d) of this rule; (2) it is evidence: (A) that is necessary to rebut or explain scientific or medical evidence offered by the State; (B) of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior which is the basis of the offense charged; (C) that relates to the motive or bias of the alleged victim; (D) is admissible under Rule 609; or (E) that is constitutionally required to be admitted; and (3) its probative value outweighs the danger of unfair prejudice. Tex. R. Evid. 412(b). Here, appellant argues that the evidence was admissible under 412(b)(2)(E) because without it he was unable to present a complete defense as mandated by the United States Supreme Court in Holmes v. South Carolina, 547 U.S. 319 (2006).[3] In the trial court, however, defense counsel argued for admission of the statements only on grounds that they constituted victim impact evidence and did not relate to consent or guilt or innocence.[4] The record does not demonstrate that counsel raised Holmes or any other constitutional argument in support of the admission of this evidence. In order to successfully argue on appeal that the trial court erred in excluding certain evidence, an appellant must demonstrate that (1) he or she preserved the argument by offering the evidence during trial and by making the trial court aware of the substance of the evidence and the basis for its admission, see Tex. R. App. P. 33.1, Tex. R. Evid. 103(a)(2), Basham v. State, 608 S.W.2d 677, 679 (Tex. Crim. App. 1980); (2) the trial court erred in ruling the evidence inadmissible, see Willover, 70 S.W.3d at 845; and (3) the trial court=s exclusion of the evidence was harmful to appellant=s case, see Tex. R. App. P. 44.2; Ray v. State, 178 S.W.3d 833, 835-36 (Tex. Crim. App. 2005). Failure to present a particular argument to the trial court in support of the admission of excluded evidence waives that argument for appeal. Reyna v. State, 168 S.W.3d 173, 176-79 (Tex. Crim. App. 2005); Rodriguez v. State, 749 S.W.2d 576, 578 (Tex. App.CCorpus Christi 1988, pet. ref=d); see also Willover, 70 S.W.3d at 845-46 & n.4 (holding that the proponent of hearsay evidence must identify a specific exception in order to preserve error in the exclusion of the evidence); Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998) (stating that a proper offer of proof must state the relevance of the excluded evidence unless apparent). In other words, a party complaining on appeal regarding the exclusion of evidence must, at the earliest opportunity, have done everything necessary to bring to the trial judge=s attention the evidentiary rule or statute in question and its precise and proper application to the evidence at issue. Reyna, 168 S.W.3d at 177 (citing, inter alia, 1 Stephen Goode, et al., Texas practice: Guide to the Texas Rules of Evidence: Civil and Criminal ' 103.2 (2d ed. 1993)). The deciding factor in argument preservation is not whether the appealing party is the State or the defendant or whether the trial court=s ruling is legally correct in every sense; rather, the issue is whether the party complaining on appeal brought to the trial court=s attention the very complaint (or reasoning for admission of excluded evidence) that the party makes on appeal. Id. Even constitutional arguments are waived when not specifically made in the trial court. Heidelberg v. State, 144 S.W.3d 535, 539, 542 (Tex. Crim. App. 2004). Because appellant did not raise his constitutional grounds for admission of the evidence in the trial court, we find that he waived those issues for purposes of appeal.[5] Accordingly, we overrule appellant=s sole issue. We affirm the trial court=s judgment. /s/ Adele Hedges Chief Justice Judgment rendered and Opinion filed May 20, 2008. Panel consists of Chief Justice Hedges and Justices Fowler and Boyce. Do Not Publish C Tex. R. App. P. 47.2(b). [1] DNA evidence corroborated complainant=s testimony. [2] We assume without deciding that Rule 412 governs admission of the evidence at issue. See Cuyler v. State, 841 S.W.2d 933, 936 (Tex. App.CAustin 1992, no pet.) (holding that Rule 412 governs admission of evidence regarding a complainant=s sexual behavior regardless of whether that behavior occurred before or after the alleged offense), overruled on other grounds, Halstead v. State, 891 S.W.2d 11 (Tex. App.CAustin 1994, no pet.). [3] In Holmes, the Supreme Court held that the arbitrary exclusion of defense evidence violates a criminal defendant=s Fourteenth Amendment due process right to present a complete defense. 547 U.S. at 324-31. [4] Defense counsel specifically argued that the evidence of other sexual encounters suggested that (1) complainant Amay not have been perhaps as distraught as would ordinarily be suggested or thought of as a result of being sexually assaulted,@ and (2) complainant=s behavior when she told her father about the assault may have been in part due to the subsequent sexual encounter and not just the assault. [5] Appellant additionally argues that A[e]ven without reliance on Holmes, abuse of discretion is evident.@ He then cites several cases that he Areadily concedes . . . were written long before Rule 412 was ever created.@ He does not, however, identify any section of Rule 412 as requiring admission of the evidence other than 412(b)(2)(E), which provides for admission of evidence Athat is constitutionally required to be admitted.@ Because, as explained above, appellant did not make any constitutional arguments in the trial court, we find that he did not preserve them for appeal.