1 In The


### Court of Appeals
Ninth District of Texas at Beaumont

________________ NO. 09

- 19

- 00427

- CR



### ________________

JACOB ERIC ARRINGTON , Appellant

V.

THE STATE OF TEXAS , Appellee

________________________________________________________________________ On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No

. 17

- 28049

________________________________________________________________________
MEMORANDUM OPINION
Jacob Eric Arrington entered a plea of guilty to the murder of B.R

. 1 See Tex.
Penal Code Ann. 19.02(b)(1). He elected to have a jury decide his punishment, and

a fter a trial, the jury determined he should be sentenced to life in the Texas

1 We refer to the victim by his initials to conceal his identity. See Tex. Const. art. I, § 30 (a)(1) (granting crime victims “the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process[.]”).2 Department of Criminal Justice , Institutional Division

. In two issues on appeal,
Arrington challenges the trial court’s rulings on certain evidentiary issues. W e

affirm.

Background
Arrington contends the trial court erred when it sustain ed two of the S tate ’s
hearsay objection s : (1) when the question did not require a hearsay response ; and (2)

when the testimony was admissible a s an exception to the hearsay rule

. Arrington
contends he was harmed when the testimony he sought to elicit was not presented to
the jury because of the trial court’s error.
Arrington complains of the trial court’s ruling to t he following discussion that

occurred durin g the punishment trial between a defense witness and defense counsel.
[Defense Counsel:] [Witness] , was [B.R.] kind of shunned by the rest of the group?
[Witness:] Yes.
[Defense Counsel:] Before, when you first started hanging out, he hung out with you

- all, correct?
[Witness:] Yes.
[Defense Counsel:] But at some point, they didn ’ t want him around anymore, did they?
[Witness:] Yes.

[ Defense Counsel :] Did you have a conversation with one of [B.R.’s] nieces?3 [Witness:] Yes.
[Defense Counsel:] After you had a conversation with the niece, did you believe that [B.R.] had been messing with his nieces?
[The State:] Objection. This is based on hearsay again, Your Honor.
[The Court:] Is it not? Isn ’ t it?
[Defense Counsel : ] It ’ s her personal

– [The Court:] Based upon hearsay.
[Defense Counsel : ] And things she observed.
[The Court:] That ’ s not the question you just asked, sir. Your objection is sustained. The jury is instructed to disregard the last statement.

Later, the fol lowing exchange occurred when Arrington took the stand regarding a

conversation he had with the victim. Arrington testified that he believed that the
victim was molesting his underage nieces and was trying to take sexual pictures of

them.
[Defense Counsel:] How did he respond? Did you confront him about this?
[Arrington:] Yeah, because we were getting high and that stuff makes you want to talk, connect; and this is my friend for a long time.
[Defense Counsel:] How did he respond when you confronte d him?
[Arrington:] Like it was okay. Like it was just cool.
[Defense Counsel:] It was cool for him to take pictures

–4 [Arrington:] Yeah. Yeah, like it was cool. I guess because I didn ’ t say anything to him at first. I was like what the

-- you know, a nd I was high. I didn ’ t know how to bring it up right then. I guess since I didn ’ t say anything at first, he just thought it was cool.
[Defense Counsel:] Over the course of time, did you have conversations with [B.R.] about this?
[Arrington:] A couple, y eah.
[Defense Counsel:] And how did he act about having relations with his nieces?
[Arrington:] He reveled there. He thought it was just cool.
[Defense Counsel:] Did he brag about it?
[Arrington:] Yeah, he always talked about how pretty she is and et

c etera, et cetera. It ’ s just

-- yeah.
[Defense Counsel:] Did he ever admit to you that he was molesting them?
[Arrington:] Yeah. He had actually told me

– [The State:] Objection, hearsay. If he ’ s going to go into anything that the dead person said, that ’ s inappropriate.
[The Court:] Sustained.
On appeal, Arrington argues the trial court erred when it sustained the
objection to his witnesses’ testimony because the testimony was not hearsay and was

not offered for the truth of the matter asserted. A rrington compared this testimony
to a police officer explaining how a defendant became a suspect rather than for the

truth of the matter asserted. Arrington complains that the excluded testimony from5 his witness es was important because it “added credibilit y to [his] own claim as to
the victim in this case being a reputed child molester.” Furthermore
, Arrington

contends that the trial court erred when i t sustained the State’s hearsay objection
because the testimony falls under a hearsay exception
, Statements Against Interest
under Texas Rule of Evidence 803(24). Arrington contends his own testimony was
important because it allowed the “jury [to] hear the motive...and consider his
demeanor and tone when offering this evidence to make a full and educated decision

in this case. ”
Analysis
On appeal, Arrington argues that he was not offering the witness’s testimony
for the truth of the matter asserted, but rather to explain his belief that the victim was

a child molester. He essentially contends the statement does n ot constitute hearsay.

See Tex. R. Civ. Evid. 801(d) (defining hearsay as an out

- of

- court statement offered
to prove the truth of the matter asserted). He contends the trial court’s failure to
admit the evidence harmed his credibility

. However, Arrington f ailed t o articulate to

the trial court that the testimony was not being offered for the truth of the matter

asserted or that the Confrontation Clause formed a basis for its admission.
The second ruling Arrington complains of involved the exclusion of a portion
of his testimony regarding the victim’s admissions to him. In response to the State’s
hearsay objection, he again failed to argue for the evidence’s admissibility as an6 exception to the hearsay rule and specifically as a statement against interest by the

declarant

. See Tex. R. Evid. 803(24) (listing a declarant’s statement against interest
as an exception to the general rule that hearsay is inadmissible).
Failure to present a parti cular argument to the trial court in support of the
admission of excluded evidence waives that argument for appeal. See Reyna v. State , 168 S.W.3d 173, 176

– 79 (Tex. Crim. App. 2005); Rodriguez v. State , 749 S.W.2d
576, 578 (Tex. App.

— C orpus Christi 1988, p et. ref ’ d) (noting that a defendant is
required to object when the trial court excludes testimony of its witness)

. Here, given
Arrington’s failure to provide an articulable basis in the trial court for the admission

of this evidence, he has failed to prese rve these complaints. See Reyna , 168 S. W .3d

at 177 (explaining “it is not enough to tell the judge th at evidence is admissible[,]”
instead the proponent “must have told the judge why th at evidence was
admissible[]”). When complaints of error are not preserved by objection or other
means of preserving error, the error is considered to have been waived unless it is
fundamental, meaning that the error creates egregious harm. See Villareal v. State
, 116 S.W.3d 74, 85 (Tex. App.

— Houston [14th Dist.] 2001, no pet.); see also

Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 198 5 ) (op. on r e h ’ g)

. Egregious harm is such harm that a defendant is deprived of a fair and impartial trial.

Almanza , 686 S.W.2d at 171.7 E ven assumi ng without deciding the trial court erred when it sustained the

State’s hearsay objections, upon review of the record for fundamental error, we
conclude the comment and ruling s at issue did not affect Arrington’s substantial
rights. “Erroneous evidentiary rulings rarely rise to the level of denying the
fundamental constitutional rights to present a meaningful defense.” Potier v. State , 68 S.W.3d 657, 663 (Tex. Crim. App. 2002) (citation omitted). Here , similar
testimony to Arrington claims was wrongfully ex cluded and was admitted elsewhere
without objection from the State

. Arrington testified to the victim’s purported

molestation of minor children

. Arrington has not demonstrated that the trial court ’ s

exclusion of th e testimony from his witness or his testimony was fundamental error
or that he was deprived of a fair trial. Appellant ’ s issue s are overruled.

Conclusion
Having overruled all of Arrington’s issues, we affirm the judgment of the trial

court.

AFFIRMED

.

________________________________ CHARLES KREGER Justice

Submitted on April 13, 2021 Opinion Delivered Novem ber 24, 2021 Do Not Publish
Before Kreg er, Horton and Johnson , JJ.