Alejandro Torres v. The State of Texas--Appeal from 25th Judicial District Court of Guadalupe County

MEMORANDUM OPINION

No. 04-02-00169-CR

Alejandro TORRES,

Appellant

v.

The STATE of Texas,

Appellee

From the 25th Judicial District Court, Guadalupe County, Texas

Trial Court No. 01-0370-CR

Honorable Dwight E. Peschel, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: January 8, 2003

AFFIRMED

A jury found defendant, Alejandro Torres, guilty of capital murder, and the trial court assessed punishment at confinement for life. During the guilt-innocence phase of trial, defendant did not deny that he killed the complainant; instead, he denied doing so in the course of a robbery. Defendant contended he killed the complainant in a moment of anger precipitated by his abuse of anabolic steroids. In support of this contention, defendant sought to introduce the testimony of Dr. Jonathan Lippman and Dr. Gilda Kessner on the affects on steroid use. On appeal, defendant complains the trial court erred in limiting Dr. Lippman's testimony and in excluding the entirety of Dr. Kessner's testimony. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the conviction in this memorandum opinion under Texas Rule of Appellate Procedure 47.1 for the following reasons:

1. Defendant asserts the trial court erred in allowing Dr. Lippman to testify only as to the neurological effects of steroid use in general, but not about how steroid use affected defendant specifically. However, the record does not indicate what questions defendant wanted to propound or the answers he expected to receive from Dr. Lipmann. Error in the exclusion of evidence may not by urged unless the proponent perfected an offer of proof or a bill of exceptions. Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999); Chavez v. State, 6 S.W.3d 56, 65 (Tex. App.--San Antonio 1999, pet. ref'd). Absent a showing of what such testimony would have been, or an offer of a statement concerning what the excluded evidence would show, nothing is presented for review. Id.

2. Defendant asserts the trial court erred in excluding Dr. Kessner's testimony in its entirety because her testimony was essential to establish his psychological makeup and his vulnerability to the effects of steroid use. Except when a defendant's sanity is at issue, which is not the case here, expert testimony regarding a defendant's state of mind at the time of the offense is inadmissible during the guilt-innocence phase of trial. Nejnaoui v. State, 44 S.W.3d 111, 117-18 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd); Osby v. State, 939 S.W.2d 787, 790-91 (Tex. App.--Fort Worth 1997, pet. ref'd); Thomas v. State, 886 S.W.2d 388, 391 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd). Therefore, the trial court did not abuse its discretion in excluding Dr. Kessner's testimony.

Based on the foregoing reasons, we affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH