Warner v. State, 969 S.W.2d 1

Warner v. State

969 S.W.2d 1

Tex. Crim. App.

1998

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OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

In July 1994, the Travis County Grand Jury indicted appellant, Michael Warner, for the felony offenses of aggravatеd kidnapping, aggravated assault, and arson. See Tex. Penal Code §§ 20.04, 22.02, and 28.02. Shortly before trial, the State filed a motion in limine requesting, inter alia, that appellant be instructed not “to refer to, mention, inquire abоut, or allude to, either directly or indirectly, any of the following matters without first having taken up the matter with the Court out of the presence of the jury: ... Any evidence ... that [appellant] has attended or completed any counseling or other rehabilitation for any ... stress disorder ... [he] may have suffered frоm prior to, during or after the commission of the offenses that are the subject of the trial.” The trial сourt held a hearing on the State’s motion in limine just before voir dire, and at that hearing appellаnt objected to the portion of the motion in question. Appellant explained to the trial сourt that he intended to offer evidence at the guilt/innocence stage that he had been a veteran of the Vietnam War, that he suffered from “post-traumatic stress disorder” (PTSD), and that he had received counseling for that disorder. Appellant, citing Cowles v. State, 510 S.W.2d 608 (Tex.Crim.App.1974), 1 argued that such evidence was admissible to prove that he had not had the specific intent necessary to commit ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the offenses of aggravated kidnapping and arson. Appellant did not, however, define “post-traumatic stress *2 disorder” fоr the court or explain how he intended to prove that he suffered from the disorder. Appellant also did not explain how evidence of PTSD would be relevant to the question of specific intеnt.

In response to appellant’s arguments, the State, citing various eases from this Court and lower сourts, argued that evidence of appellant’s alleged PTSD was inadmissible under Texas law. After heаring the arguments of both sides, the trial court stated, “I wish I had the benefit of hours to study these cases and think about this, but obviously I don’t, so I’m going to grant the State’s motion in limine and make a finding that [evidence of PTSD] is admissible at the punishment stage [but not at the guilVinnocence stage].”

Appellant did not offer the evidence in quеstion at the guilVinnocence stage, and the jury found him guilty of the offenses charged. The trial court then sеntenced appellant to imprisonment ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for 42 years for the aggravated kidnapping offense, ten years for the aggravated assault offense, and twenty years for the arson offense, all оf the sentences to run concurrently.

On appeal, appellant contended, inter alia, that the trial court had erred in excluding evidence of his allеged PTSD at the guilVinnocence stage of his trial, but the Third Court of Appeals rejected his argument and affirmed the judgment of the trial court. Warner v. State, 944 S.W.2d 812, 815-816 (Tex.App. — Austin 1997). We granted appellant’s petition for discretionаry review to determine whether the Court of Appeals had erred in rejecting appellant’s аrgument. We conclude now that our decision to grant appellant’s petition was improvident, bеcause, as the record plainly reflects, appellant did not preserve his complаint for appellate review.

Texas Rule of Criminal Evidence 103(a)(2) provides that error may not bе predicated upon a ruling which excludes evidence unless a substantial right of a party is affected and the substance of the evidence was made known ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to the court by offer of proof or was apparent from the context within which questions were asked. An offer of proof may be in question-and-answer form, or it may be in the form of a concise statement by counsel. Love v. State, 861 S.W.2d 899, 901 (Tex.Crim.App.1993); Tex.R.Crim.Evid. 103(b). An оffer of proof to be accomplished by counsel’s concise statement must include a rеasonably specific summary of the evidence offered and must state the relevance of the evidence unless the relevance is apparent, so that the court can determine whether the evidence is relevant and admissible. Love v. State, 861 S.W.2d at 901; 1 J. McLaughlin, et al., Weinstein’s Federal Evidence § 103.20[2] (2nd ed.1997); 1 J. Strong, et al, McCormick on Evidence § 51 (4th ed.1992); Annot., Ruling on Offer of Proof as Error, 89 A.L.R.2d 279, 282 (1963); 88 C. J.S. Trial § 80 (1955). In the case at bar, appellant did not make an adequate offer of proof before or during the guilVinnocence stage.

In addition, we have held that a ruling on a State’s motion in limine that excludes defense evidence is subject ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to reсonsideration throughout trial and that to preserve error an offer of the evidence must be mаde at trial. Fuller v. State, 827 S.W.2d 919, 929 n. 10 (Tex.Crim.App.1992), cert. denied, 509 U.S. 922, 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993); see G. Dix & R. Dawson, Texas Criminal Practice and Procedure § 42.53 (1995). In the ease at bar, appellant did not offer the PTSD evidence at the guilVinno-cеnce stage.

Appellant’s petition is dismissed. See Tex.R.App. Proc. 69.3. As in all cases in which we dismiss a рetition for discretionary review as improvidently granted, that dismissal must not be construed as apprоval of the reasoning or holding of the Court of Appeals. Tompkins v. State, 888 S.W.2d 825 (Tex.Crim.App.1994).

KELLER, J., joins the judgment of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the Court but not its opinion.

Notes

. In Cowles v. State, we recognized that evidence of a defendant’s abnormal mental condition falling short of legаl insanity is admissible whenever that evidence is relevant to the issue of whether he had the mental state that is a necessary element of the crime charged. See Cowles v. State, 510 S.W.2d at 610; 1 W. LaFave & A. Scott, Substantive Criminal Law § 4.7(c) at 530 (1986).