PD-0812-17 02/07/2018
1. “Did the majority opinion correctly hold that TEX.R.EVID. 103 trumps TEX.R.APP. P. 33.1 and relieves an appellant of the need to have informed the trial court of the legal basis for admitting the proffered evidence?”
2. “Does the majority opinion conflict with precedent from this Court when it holds that an appellate complaint about the exclusion of defense evidence need not comport with the appellant’s trial objection?”
3. “Did the majority opinion contradict this Court’s precedent by holding, in the alternative, that Appellant preserved his constitutional complaints about the exclusion of defense evidence with, among other things, a general remark, made during opening statement, and his argument that the victim’s testimony from the first voir dire hearing was relevant so the jury could “get the whole picture”?”
4. “Did the majority opinion properly deal with Appellant’s en masse first offer by plucking out items when the offer contained other material that was inadmissible?”
5. “Did the majority opinion correctly find constitutional violations in the exclusion of defense evidence?”
Golliday was charged with sexual assault of a neighbor and presented a consent defense at trial. The defense cross-examined the victim in front of the jury. In an out-of-presence hearing, the defense asked the victim about various statements she made at a treatment facility, including not accepting the fact that she had been raped, that she had an STD, and that she had been assaulted by another man and the charges had been dropped. The State objected to hearsay, relevance, and Rule 404, and the defense argued the evidence was “relevant” so the jury could “get the whole picture of the situation.” The trial court sustained the State’s objections. The defense asked if all matters covered by the proffer would be excluded, and the judge stated they would be. The defense also proffered his cross of the SANE about the victim’s anti-anxiety medication and similar topics and argued testimony was relevant to explaining the victim’s behavior on the night in question. The State again objected to relevance and Rule 404. The trial judge sustained the State’s objections. The jury convicted Golliday.
On appeal, Golliday argued the trial judge violated his right to present a defense by preventing full cross-examination of the victim and SANE. The State argued that Golliday’s issues were not properly preserved. A divided en banc court of appeals held Golliday preserved the claim and cited Rule of Evidence 103(a)(2), which requires an offer of proof, not an objection, when a ruling excludes evidence. It also held Golliday’s constitutional complaints (which prevented him from telling the jury “the rest of the story”) were preserved and that the excluded testimony would have provided reasons for the victim’s contradictions and why the defense believed her testimony was unreliable. Finding the constitutional error was not harmless, the court of appeals reversed the conviction.
The State argues that Rule 103 requires preservation of what the party wishes to introduce, but that Rule 33.1 also requires preservation of why the party believes the evidence is admissible. Finding argument was preserved here contravenes Reyna v. State, 168 S.W.3d 173 (Tex. Crim. App. 2005). The State contends that asking that the jury “get the whole picture” or “the rest of the story” did not preserve a constitutional objection, particularly as this second reference was part of the defense opening statement to the jury and not a legal objection. Further, the defense proffer of multiple statements from the victim en masse, some of which were obviously inadmissible, was insufficiently specific to preserve error. The State also challenges the holding that the excluded testimony was constitutionally required to be admitted.
