No. 10-06-00113-CR
Opinion delivered and filed July 18, 2007. DO NOT PUBLISH.
From the 186th District Court Bexar County, Texas, Trial Court No. 2004-CR-9288. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
FELIPE REYNA, Justice.
Phillip A. Rodriguez was convicted of aggravated robbery, a carjacking, and sentenced to twenty years in prison. In two issues, Rodriguez argues that the trial court prevented him from presenting a defense in violation of the Sixth and Fourteenth Amendments of the United State Constitution by: (1) limiting his opening statement; and (2) excluding certain photographs from evidence. We affirm.
LIMITATION OF OPENING STATEMENTS
In his first issue, Rodriguez contends that the trial court violated his constitutional right to present a defense by limiting his opening statement to exclude any mention that the male complainant, Felix Arreguin, "dressed and performed as a woman." The State argues that Rodriguez failed to preserve this issue for appeal. We agree with the State. The State presented a motion in limine requesting that Rodriguez not mention that Arreguin dresses as a woman. Rodriguez argued that the evidence is "impeachment evidence" and "has everything to do with our defense." The trial court granted the motion and ordered Rodriguez to exclude this topic from his opening statement. At no time did Rodriguez assert that limitation of his opening statement violated his constitutional rights or denied his right to present a defense. See Eaves v. State, 141 S.W.3d 686, 691 (Tex.App.-Texarkana 2004 pet. ref'd) ("constitutional errors may be waived or forfeited by a failure to make a timely and specific assertion of the right"). He neither cited any constitutional provisions nor lodged any objections or arguments based on constitutional grounds. See Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App. 2005). Moreover, a "motion in limine is a preliminary ruling and does not preserve a complaint for appellate review." Thomas v. State, 137 S.W.3d 792, 796 (Tex.App.-Waco 2004, no pet.) (citing Geuder v. State, 115 S.W.3d 11, 14-15 (Tex.Crim.App. 2003)). Accordingly, Rodriguez failed to raise his constitutional arguments at trial and has not preserved his complaint for our review. See TEX. R. APP. P. 33.1; see also Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App. 2000); Kesaria v. State, 148 S.W.3d 634, 642-43 (Tex.App.-Houston [14th Dist.] 2004), aff'd, 189 S.W.3d 279 (Tex.Crim.App. 2006). We overrule Rodriguez's first issue. EXCLUSION OF PHOTOGRAPHS
In his second issue, Rodriguez contends that the trial court violated his constitutional right to present a defense by excluding photographs of Arreguin dressed as a woman. We review a trial court's decision to admit or exclude evidence for abuse of discretion. See Martin v. State, 173 S.W.3d 463, 467 (Tex.Crim.App. 2005); see also Shuffield v. State, 189 S.W.3d 782, 793 (Tex.Crim.App.), cert. denied, 127 S. Ct. 664, 166 L. Ed. 2d 521 (2006) (citing Rachal v. State, 917 S.W.2d 799, 816 (Tex.Crim.App. 1996)). "If the trial court's decision was within the bounds of reasonable disagreement, the appellate court should not disturb its ruling." Shuffield, 189 S.W.3d at 793. Only relevant evidence is admissible. See TEX. R. EVID. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. TEX. R. EVID. 403. A Rule 403 analysis includes several factors: (1) the inherent probative value of the evidence; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent's need for the evidence. Reese v. State, 33 S.W.3d 238, 240-41 (Tex.Crim.App. 2000). After an in camera inspection, the trial court excluded photographs of Arreguin dressed as a woman. Rodriguez claimed that his defense would be "prejudiced" and "totally vitiated" without this evidence. On appeal, Rodriguez contends that the testimony of Jesse Fernandez, who was with Rodriguez on the night of the carjacking and observed Rodriguez talking to a woman wearing a black wig, a grey dress, and make-up, was "crucial" to his defense for purposes of corroborating Rodriguez's story and judging Arreguin's credibility. He argues that Fernandez's testimony "meant nothing" without the photographs because Fernandez could not identify Arreguin as the woman he saw with Rodriguez. Although the photographs were excluded, other testimony at trial established Arreguin's appearance on the night of the carjacking. Officer Richard M. Smith, Jr. testified that Arreguin was wearing a dress. Rodriguez's description of Arreguin paralleled Fernandez's description: black hair, make-up, and a "silverish" dress with "sparkly stuff on it." Arreguin admitted that he performs as a female impersonator, was still "in character" when he spoke with Officer Smith after the carjacking, and owns a black wig and a silver sequined dress. Rodriguez himself identified Arreguin as the woman he met on the night of the carjacking. Rodriguez's alibi witness testified that she met Rodriguez in the vicinity of Arreguin's home, that he was upset because a guy "hit on him," and that he stayed with her the remainder of the night. The jury could use this testimony to evaluate Arreguin's credibility and reasonably infer that Rodriguez and Arreguin did in fact meet prior to the carjacking, that Arreguin was dressed as a woman, and that Arreguin was the woman who Fernandez saw with Rodriguez. Because Rodriguez was able to provide "other probative evidence" establishing Arreguin's identity as the woman he met on the night of the carjacking, his need for the photographs was slight. Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999); see State v. Mechler, 153 S.W.3d 435, 441-42 (Tex.Crim.App. 2005). Although Fernandez testified that he could identify the woman if she was dressed similarly to how she appeared on the night of the carjacking, the record does not indicate that any of the photographs depicted Arreguin as he appeared that night. The photographs would improperly suggest that the woman portrayed in the photographs was, in fact, the same woman Fernandez observed on the night of the carjacking. Accordingly, the photographs could serve no other purpose but to create a negative image of Arreguin and influence the jury to make a decision based on an improper basis. Thus, the probative value, if any, of the photographs was substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403; see also Reese, 33 S.W.3d at 240-41. The trial court's decision to exclude the photographs was within the bounds of reasonable disagreement and was not an abuse of discretion; Rodriguez was not denied his constitutional right to present a defense. See Shuffield, 189 S.W.3d at 793; see also Wiley v. State, 74 S.W.3d 399, 408 (Tex.Crim.App. 2002). We overrule Rodriguez's second issue. Having overruled both of Rodriguez's issues, we affirm the trial court's judgment.