Delmy Margoth Ruiz v. The State of Texas--Appeal from 209th District Court of Harris County

Affirmed and Memorandum Opinion filed August 7, 2007

Affirmed and Memorandum Opinion filed August 7, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-05-00757-CR

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DELMY MARGOTH RUIZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 1005593

M E M O R A N D U M O P I N I O N

Appellant, Delmy Margoth Ruiz, appeals from her conviction for aggravated assault. A jury convicted her and assessed punishment at eight years in prison and a $10,000 fine. In a single issue, appellant contends that the trial court erred in excluding certain evidence. We affirm.

I. Background

Appellant admits that on October 28, 2004, she used a knife to sever the penis of complainant, Rene Nunez. The sequence of events on that date and the nature of the relationship between the parties were hotly contested at trial. Appellant contended that Nunez had physically and emotionally abused her in the past and that he was in the process of sexually assaulting her when she severed his penis. Nunez claimed that appellant was the controlling party in the relationship and that she assaulted him on October 28 out of jealousy, after he had fallen asleep.

In their respective testimonies, appellant and Nunez agreed that they met in their native El Salvador, and that appellant, who was already a United States citizen, helped Nunez come to the United States. They began a sexual relationship and eventually bought a house together. They further agreed that Nunez was twice arrested and twice pleaded guilty to assaulting appellant. He testified at trial, however, that appellant was the aggressor on those two occasions and that she called the police after he left. He said that he pleaded guilty because he was desperate, alone, and was assured probation if he confessed. He admitted that he had grabbed her hand to defend himself and that he had once Akicked her out of the car.@ After the first assault conviction, one of the terms of Nunez=s probation was that he avoid all contact with appellant. He says that she called him and convinced him to return to the house. After the second conviction, Nunez was again ordered to avoid all contact with appellant. He testified that on the occasion of the attack, she had asked him to come to the house to sign some papers transferring ownership of the house. He sat on the bed and fell asleep while waiting for her to get the documents. The next thing that he remembers is feeling Asomething hot@ in the area of his genitals; he then passed out and did not remember anything else until he was in the hospital. He denied ever raping or assaulting appellant.

Appellant testified that at some point during their relationship, Nunez began to drink heavily; he would sometimes grab her and push her against the wall and twist her hand around. She said that by 2004, Nunez was Abeginning to torture [her] with the things [she] loved the most.@[1] Appellant stated that she did not break up with Nunez in 2004 because he had made so many threats, specifically that if she Ahad him sent to jail again, he was going to do something very big and very well done and he was going to return to El Salvador.@

She said that she reported him to the police because he hit her and abused her. Specifically, she said that he grabbed her by the arms and shook her, hit her on the head and the hands, hit her with a telephone, pulled her by her hair, pushed her down, and struck her shoulder blade. After he was released from jail, he returned to the house and started to hit her again. He would grab her by the throat and hit her on the head. She said he would frequently show up drunk at the house, she would cook for him, and then they would go into the bedroom where Athe worst would start.@ She said she put up with his presence at the house out of fear. For a year, according to appellant, Nunez violated probation by abusing, threatening, and terrorizing her. She said that at one point, Nunez made her drink his urine, and that on another occasion, he threw a snake on her when he knew she was afraid of snakes.

Appellant stated that on the morning of October 28, 2004, Nunez violently removed all of her clothes, tied her wrists, and raped her. He then began to force her to perform oral sex. He told her that if she did not do it, he would Ayank off a piece of [her] lip.@ He also threatened to Aleave this knife you know where.@ She told him that if he would untie her, she would do it. She felt that severing his penis was the only way to prevent his continuing the sexual assault. She was depressed and the sexual assault was Athe last straw.@ The knife was on a table close by the bed, and Nunez was awake when she injured him. Appellant acknowledged that she never discussed the rape with her sister or daughter (who were both at the house at the time of the alleged assault). She further admitted that her trial testimony was Anew in many respects.@

Maria Coreas, appellant=s sister, testified that she was living at appellant=s house at the time of the alleged assault. Coreas initially stated that she saw Nunez hit appellant at times. She then admitted, however, that she had given the police a sworn statement in which she denied having seen either appellant or Nunez strike the other. She then stated that she had never seen or heard them hit each other, but she also said that Nunez was mean to appellant because he didn=t want her talking to her daughters, and he yelled at appellant about her dogs.

Jenny Ruiz, appellant=s daughter, testified that she also was living at appellant=s house on October 28, 2004. She stated that while both appellant and Nunez were mean to each other, Nunez was meaner, took advantage of appellant, and didn=t want appellant to have friends, animals, or a relationship with her daughters. Appellant was trying to keep Nunez out of the house, but the only way to stop him from coming to the house would have been to tell his probation officer. Although Jenny heard appellant say that Nunez Amade her do it,@ appellant did not explain her meaning.

Deputy Joe Leal testified that appellant mentioned past beatings by her husband (apparently referring to Nunez). She told him that she went to the kitchen to get the knife used to injure Nunez. She said nothing about having been assaulted or raped by Nunez on the date in question. Detective Barbara Bates testified that she interviewed Nunez on two occasions, he appeared to love appellant, and he seemed more like a victim than an abuser. Tina Ansari, an assistant district attorney, testified that appellant told her about the prior assaults by Nunez underlying his two convictions. Ansari believed that the assaults indeed had occurred.

II. Unadmitted Evidence

On appeal, appellant contends that the trial court erred in excluding certain evidence. The evidence appellant identifies as excluded includes testimony from Jenny Ruiz that (1) she was afraid of Nunez because she believed that he had caused her grandfather=s death in El Salvador, (2) she believed that appellant and Coreas were also afraid of Nunez, (3) Nunez was always threatening people, (4) Nunez threatened to kill her husband, (5) Nunez hit her once while she was defending appellant, (6) Nunez threatened appellant with physical harm, including death, and (7) she saw Nunez hit and kick appellant. Appellant additionally complains that the trial court excluded the testimony of Coreas to the effect that she, too, feared Nunez because she believed that he or his family had killed her father in El Salvador. Appellant further complains that she herself was not permitted to testify regarding (1) specific acts Nunez committed to frighten, intimidate, or hurt her, (2) threats Nunez made in the one and a half years prior to the alleged assault, and (3) deviant sexual practices Nunez forced upon her. Lastly, appellant complains that she was not permitted to ask Detective Bates why appellant=s family would have feared Nunez.

III. Standards of Review

We 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). 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).

In order to preserve an argument regarding the exclusion of evidence, the proponent of the evidence must have actually attempted to introduce the evidence during trial, and the trial court must have excluded the evidence. See Tex. R. App. P. 33.1, Tex. R. Evid. 103(a)(2), Basham, 608 S.W.2d at 679; Ites v. State, 923 S.W.2d 675, 678 (Tex. App.CHouston [1st Dist.] 1996, pet. ref=d). The proponent of the evidence must also have made the substance of the offered evidence known to the court through either a bill of exception or offer of proof, unless the substance is apparent from the context in which the evidence was offered. See Tex. R. Evid. 103(a)(2).

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.

IV. Analysis

In the trial court, defense counsel argued that the unadmitted evidence was relevant and admissible as Arebuttal@ evidence because Athe prosecutor has created in the jury=s mind inferences of fear by implying that Delmy Ruiz is very dangerous.@[2] Counsel suggested that Afairness@ required allowance of testimony regarding Nunez=s dangerous acts and threats. He further asserted that at least one of the State=s witnesses had Aopened the door@ regarding the issue of fear between appellant and Nunez. Counsel did not mention any specific evidentiary rules or statutes or any state or federal constitutional provisions in making this argument. During the pre-trial discussion on the State=s motion in limine, the trial judge suggested that if self-defense became an issue it might A[open] up a lot more.@ Defense counsel responded A[i]f it[sic] an issue.@ At no point during the proceedings did defense counsel argue that any excluded evidence was admissible as proof of any defensive theory, much less self-defense specifically.

On appeal, appellant argues that the evidence in question was admissible in support of her theory of self-defense as a demonstration that she was (1) logically reasonable in her perception that she was in danger of imminent sexual assault, (2) justified in using the force that she did to prevent the assault, and (3) morally reasonable in not retreating. She acknowledges that the evidence in question consisted of specific conduct character evidence usually excluded under the Texas Rules of Evidence. However, she contends that the evidence is admissible under an exception to the rules permitting admission of specific conduct character evidence to show the character of a victim when the victim=s character is an essential element of a defense. In support of these propositions, she cites numerous authorities, including Texas Penal Code sections 9.31 (concerning self-defense) and 9.32 (concerning use of deadly force in defense of person), Code of Criminal Procedure article 38.36 (concerning admission of relationship evidence), and Texas Rules of Evidence 404(a)(2) (concerning character evidence of a victim) and 405(b) (concerning use of specific conduct character evidence). Tex. Penal Code Ann. '' 9.31, 9.32; Tex. Code Crim. Proc. Ann. art. 38.36; Tex. R. Evid. 404(a)(2), 405(b). While acknowledging that some of the evidence appears to be hearsay in form, she argues admissibility under an exclusion from the definition of hearsay: the evidence was not offered for the truth of the matter asserted but was offered to demonstrate the reasonableness of her perceptions and resulting conduct, citing Rule of Evidence 801. Tex. R. Evid. 801(d). Additionally, appellant contends that the trial court=s arbitrary application of the evidentiary rules prevented her from presenting a complete defense and thus violated her right to due process under the Fourteenth Amendment to the United States Constitution, citing Holmes v. South Carolina, 547 U.S. 319 (2006). U.S. Const. amend. XIV. We find that appellant has waived her issues on appeal because she neither brought to the trial court=s attention the evidentiary rule or statutes upon which she relies on appeal nor explained their precise and proper application to the evidence at issue. See Reyna, 168 S.W.3d at 176-79; Rodriguez, 749 S.W.2d at 578; 1 Goode, supra, ' 103.2. Accordingly, we overrule appellant=s sole issue.

We affirm the trial court=s judgment.

/s/ Adele Hedges

Chief Justice

Judgment rendered and memorandum Opinion filed August 7, 2007.

Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Appellant further explained: AIf it was an intimacy, he was violent. He wanted all of my attention just for him. I could no longer visit my daughters, nor could they come to visit me. I loved the little Chihuahuas and the cats a lot.@ However, after a discussion at the bench regarding appellant=s dogs and cats, the judge stated A[t]he last response will be struck.@ It is unclear under the circumstances whether the judge meant to strike only the final sentence of appellant=s answer or the entire answer.

[2] We term the evidence regarding which appellant complains Aunadmitted@ as opposed to Aexcluded@because it is unclear from the record whether the trial court actually excluded much of the evidence in question.