Jason James Cano v. The State of Texas--Appeal from 379th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00705-CR

Jason James CANO,

Appellant

v.

The STATE of Texas,

Appellee

From the 379th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-CR-1360A

Honorable Bert Richardson, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: November 15, 2006

AFFIRMED

Jason Cano appeals the judgment convicting him of aggravated robbery and sentencing him to thirty years in the Texas Department of Criminal Justice - Institutional Division. In his only issue, Cano argues the trial court abused its discretion in sustaining a hearsay objection to his co-defendant's letter that allegedly shows "Cano's limited culpability." Cano argues the letter was admissible as a statement against penal interest and that its exclusion denied him an opportunity to present a defense. However, Cano did not argue to the trial court that the evidence was admissible under this or any other hearsay exception; nor did he make the substance of the letter known to the trial court by offer or otherwise. Cano therefore failed to preserve error. See Tex. R. App. P. 33.1; Tex. R. Evid. 103(a)(2), (b); Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) (holding that "it is not enough to tell the judge that evidence is admissible. The proponent, if he is the losing party on appeal, must have told the judge why the evidence was admissible."); Martinez v. State, 91 S.W.3d 331, 335-36 (Tex. Crim. App. 2002) ("the party complaining on appeal ... about a trial court's ... exclusion ... of evidence 'must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the evidence rule [or statute] in question and its precise and proper application to the evidence in question.'") (quoting 1 Stephen Goode, et al., Texas Practice: Guide to the Texas rules of Evidence: Civil and Criminal 103.2, at 14 (2d ed. 1993));Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998) (per curiam) ("error may not be 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.").

The trial court's judgment is affirmed.

Sarah B. Duncan , Justice

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