Sauceda v. State

¶1filed a concurring opinion.

¶2I join the opinion of the Court. If it is true that error is not preserved in a situation such as this, despite timely objection, because the inadmissible evidence was not admitted, then error is also, by analogy, *125not preserved, despite timely objection, when admissible evidence is not admitted. Under this logic, a trial court may rule incorrectly with impunity merely by refusing to admit the proffered evidence, whatever its nature. If the incorrect ruling significantly affects the ability of either party to present its case, surely we do not wish to shield that incorrect ruling from review. Surely we do not want to force an appellant to choose between calling the witness and having the inadmissible inflammatory evidence admitted, to his probable detriment, or not calling the only witness who can testify about a substantive issue or an issue of mitigation.

¶3In the case at bar, appellant chose not to call the CPS worker to impeach the complainant on the narrow issue of use of weapons because of the trial court’s ruling that to do so would allow the state to present the entire taped interview, regardless of its connection to the narrow scope of the proposed impeachment. There was no other witness who could give the needed testimony. The tape contained much comment on extraneous offenses of an inflammatory nature. Thus caught between a rock and hard place, appellant’s ability to present his defense was impermissibly impaired. Neither state nor appellant should be required to plead its case under such strictures.

¶4KELLER, P.J., filed a dissenting opinion in which KEASLER, and HERVEY, JJ., joined.

¶5The trial court could not have erred in admitting this evidence because the evi-deuce was never admitted. In its brief on discretionary review, the State cites Jackson v. State1 for the proposition that error was not preserved because the complained of evidence was never admitted. The State is correct. In Jackson, the defendant requested that he be allowed to testify at the punishment phase of trial without being impeached on cross-examination with prior extraneous offenses.2 The trial court denied his request to limit the State’s ability to impeach in the event he testified.3 Relying upon Luce v. United States,4 we held that error was not preserved because the defendant did not in fact testify (and thus, was not impeached with extraneous offenses).5 In Luce, the defendant complained about the trial court’s refusal to foreclose impeachment with prior convictions in the event the defendant testified.6 In declining to review the alleged error, the United States Supreme Court observed that reviewing the trial court’s ruling was fraught with difficulty, requiring speculation about:

(1) the precise nature of the defendant’s testimony, (2) whether the trial court’s ruling would have remained the same or would have changed as the case unfolded, (3) whether the government would have sought to impeach the defendant with the prior conviction, (4) whether the accused would have testified in any event, and (5) whether any resulting error in permitting impeachment would have been harmless.7

¶6This case is similar to Jackson and Luce. As in those cases, the defendant *126declined to introduce favorable testimony after the trial court indicated that the testimony would open the door to unfavorable evidence (involving the defendant’s extraneous offenses). And, as in those cases, the unfavorable evidence was never admitted. Because the defendant did not introduce Stephenson’s testimony, and as a result, the child’s videotaped statement was never admitted, appellant has failed to preserve error for appellate review.

¶7It is true that the State did not raise this particular preservation argument before the Court of Appeals although it raised a related preservation claim that the was rejected.8 And it is also true that the State did not file a cross-petition. Nevertheless, preservation of error is a systemic issue that a first-level appellate court ought to raise on its own motion and one that a discretionary review court may choose to address if warranted by the circumstances.9 There is no escaping that the Court’s opinion holds to be inadmissible evidence that was never admitted— making this opinion advisory in nature. And, the procedural posture of the case renders problematic any attempts to review the merits or to conduct a harm analysis. We should either dismiss the petition as improvidently granted or hand down an opinion holding that error was not preserved. Because the Court does neither, I respectfully dissent.