William Doyle Hicks v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 02-10-00075-CR
02-10-00076-CR
WILLIAM DOYLE HICKS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
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MEMORANDUM OPINION1
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After a paid informant helped officers catch Appellant William Doyle Hicks
transporting a methamphetamine lab in the back of his pickup truck, a jury found
Appellant guilty of possessing certain chemicals with intent to manufacture a
controlled substance and possessing four grams or more but less than 200
grams of methamphetamine. Appellant pleaded true to the indictments’
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See Tex. R. App. P. 47.4.
enhancement paragraphs, the jury assessed two life sentences as punishment,
and the trial court sentenced Appellant accordingly, ordering the sentences to run
concurrently.
The informant was one of several witnesses who testified for the State at
Appellant’s trial. In his sole point on appeal, Appellant claims that the trial court
abused its discretion by not allowing him to present opinion testimony as to the
informant’s credibility. We affirm.
After the State rested on guilt-innocence, Appellant called the informant’s
brother to the stand. The brother testified that he knew the informant used drugs,
had a reputation among their mutual friends as a ―habitual liar,‖ and that, based
upon his own personal knowledge of and experiences with the informant, he
believed she had a propensity to lie. Later, during the State’s cross-examination,
the brother testified that his opinion of the informant’s reputation was that she
was a liar and a bad person, who was not entitled to belief:
Q. And your opinion of your sister’s reputation is that she’s a liar
and a bad person and shouldn’t be believed, correct?
A. Yes, sir.
Now Appellant complains that the trial court ―cut [him] off from pursuing‖
opinion testimony as to the informant’s credibility. Our reading of the record,
however, informs us that the trial court did not prevent Appellant from eliciting
from the brother his opinion of the informant’s credibility. Specifically, the brother
testified:
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Q. (BY [APPELLANT’S COUNSEL]) Do you believe [the
informant] has a propensity to lie?
A. Yes, sir, I do.
Q. Does that come from you own personal knowledge – –
A. Yes, sir.
Q. – – and experiences with her?
A. Yes, sir.
At that point, the trial court sustained the State’s objection that Appellant
was asking about specific instances of conduct. However, the State did not
request, and the trial court did not issue, an instruction to the jury to disregard. In
holding that under similar circumstances an appellant preserved nothing for
review, one of our sister courts explained:
Appellant answered counsel’s question and since there was
no instruction to disregard, that testimony was before the jury for
consideration. Had the prosecutor desired to keep the testimony out
of the jury’s hearing, he should have objected before appellant
answered. Once the answer is given, the only way to limit its
evidentiary strength is to request that the court instruct the jury to
disregard. Without such an instruction, the testimony is within the
jury’s review and appellant has nothing to complain of.
Wills v. State, 867 S.W.2d 852, 855 (Tex. App.—Houston [14th Dist.] 1993, pet.
ref’d).
Appellant concedes that, to the extent that the trial court’s ruling excluded
specific instances of conduct offered to attack the credibility of the State’s
witness, it was ―arguably correct‖ under rule 608(b). See Tex. R. Evid. 608(b).
Still, he argues, ―[T]he trial court’s ruling went too far. In sustaining the State’s
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objection to that specific question, the court went on to opine that the only thing
admissible was the informant’s reputation for truthfulness. That is clearly not the
law.‖ We read the record differently. The prosecutor, not the trial judge, is the
one who opined that only the informant’s reputation was admissible.
Moreover, for us to address the propriety of a trial court’s ruling excluding
evidence a party wished to admit, the record must show what that evidence
would have been. In other words, to preserve error, the substance of the
excluded evidence must be shown by offer of proof unless it is apparent from the
context of the questions asked. Tex. R. Evid. 103(a)(2); Tex. R. App. P. 33.2;
Holmes v. State, 323 S.W.3d 163, 168 (Tex. Crim. App. 2009). Error may be
preserved by an offer of proof in question-and-answer form or in the form of a
concise statement by counsel. Tex. R. Evid. 103(b); Holmes, 323 S.W.3d at 168.
Counsel’s concise statement must include a summary of the evidence offered.
Holmes, 323 S.W.3d at 168. Error is not preserved if the offer of proof is
inadequate. Id.; see also Mays v. State, 285 S.W.3d 884, 889–90 (Tex. Crim.
App. 2009) (holding that error was not preserved when appellant failed to proffer
with some degree of specificity the substantive evidence he intended to present).
As already discussed, the record in this case shows that Appellant elicited
the witness’s opinion testimony about the informant’s credibility. We cannot tell
what other evidence, if any, Appellant sought to admit. Therefore, because the
opinion testimony Appellant claims he was not allowed to admit was actually
admitted before the jury, and because Appellant did not make a record showing
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what other evidence he wished to elicit, we hold that he has failed to preserve his
claim for review. See Tex. R. Evid. 103(b); Tex. R. App. P. 33.2; Holmes, 323
S.W.3d at 168; Wills, 867 S.W.2d at 855. Accordingly, we overrule Appellant’s
sole point, and affirm the judgment of the trial court.
LEE GABRIEL
JUSTICE
PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 16, 2011
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