COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-15-00020-CR

CHARLES RAY DIAZ APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 1350578D

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MEMORANDUM OPINION1

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Appellant Charles Ray Diaz appeals from his conviction for aggravated 

assault with a deadly weapon. In one issue, Diaz contends the trial court violated 

his confrontation rights under the United States and Texas Constitutions when it 

granted two motions in limine requiring him to approach the bench before 

questioning a State witness about the witness’s prior deferred adjudications. 

 

1See Tex. R. App. P. 47.4.
2

Because Diaz did not preserve this issue for our review, we affirm the trial court’s 

judgment.

On November 23, 2013, Diaz and his cousin, Leonard Salmeron, were at

Roy’s Sports Bar and Grill (Roy’s) in Grand Prairie, Texas. Salmeron had driven

Diaz to Roy’s, and the two remained there until last call, after which Salmeron left 

to get his truck and wait for Diaz. A little while later, Diaz came out of Roy’s, 

walked to the passenger side of Salmeron’s vehicle, and opened the passenger 

door. After stepping out of his truck to talk to some girls he recognized from 

Roy’s, Salmeron heard gunshots. Salmeron turned to see what was happening 

and saw Diaz firing a gun at Trinity Smith, who was head of security at Roy’s. 

Diaz shot Smith multiple times, but Smith survived.

A grand jury indicted Diaz on a charge of aggravated assault with a deadly 

weapon. See Tex. Penal Code Ann. § 22.02(a)(2) (West 2011). The indictment 

contained a habitual-offender paragraph alleging that Diaz had previous 

convictions for aggravated assault with a deadly weapon and deadly conduct. A 

jury found Diaz guilty of the offense charged, and Diaz elected to have the court 

assess his punishment. Diaz pleaded true to the habitual-offender paragraph, 

and the trial court sentenced him to forty-five years’ confinement. 

At trial, the State disclosed that Salmeron had been placed on deferred 

adjudication community supervision in 2001 for charges of deadly conduct and

criminal mischief. The State represented that Salmeron had “successfully 

completed” the five-year term of community supervision for deadly conduct and 
3

that the criminal mischief charge had also been “dismissed” in 2006 after the 

community supervision term was completed. Before calling Salmeron to the 

stand, the State made an oral motion in limine requesting that Diaz be required to 

approach the bench before questioning Salmeron about his prior deferred 

adjudication for deadly conduct. In response, Diaz objected as follows:

Judge, we’re going to ask that we be allowed to get into it. We 

believe it’s probative to the case at hand because of the . . . nature 

of the offense for which he pled guilty in 2001.

Furthermore, we would say that it’s within the ten-year time 

limit because he did not complete the probation until 2006. We think 

that the information if not given to the jury could leave a false 

impression of the witness to the jury. We think that in order to put on

a proper defense for Mr. Diaz, not only are we entitled to it, but . . . it 

would be something if not allowed in could potentially be cause for 

reversal.

The trial court granted the State’s motion, stating that Diaz needed to approach 

the bench before questioning Salmeron about his prior deferred adjudication for 

the deadly-conduct charge. The trial court then took a brief recess. 

Following the recess, the State urged a second motion in limine, 

requesting that Diaz be required to approach the bench before questioning

Salmeron about his deferred adjudication for the criminal-mischief charge. Diaz

“renew[ed] [his] same objection that it [arose] from the same incident and that the 

probative value that the jury would get from knowing about Salmeron’s 

propensity for violence and shooting guns would be beneficial to them in this 

case at hand.” The trial court stated that its ruling would remain the same. The 

State then called Salmeron to the stand. Although Diaz cross-examined
4

Salmeron following the State’s direct examination, the record shows that Diaz did 

not approach the bench to obtain a final ruling on the admissibility of Salmeron’s 

deferred adjudications, and Diaz does not point us to any place in the record 

showing that he obtained such a ruling at any other time during the trial. Diaz 

argues on appeal, however, that the trial court abused its discretion by “refusing” 

to allow him to question Salmeron about his previous deferred adjudications. 

Ordinarily, a party must preserve an issue during trial in order to raise it on 

appeal. Tex. R. App. P. 33.1; Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. 

App. 2009). To preserve an error for our review, a party must make a timely 

request, objection, or motion in the trial court specifically stating the grounds for 

the ruling the party sought, unless the grounds are apparent from the context. 

Tex. R. App. P. 33.1(a)(1)(A); Wenger v. State, 292 S.W.3d 191, 202 (Tex.

App.—Fort Worth 2009, no pet.). In addition, the trial court must rule, expressly 

or implicitly, on the party’s request, objection, or motion, or the party must have 

objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2). These 

preservation requirements extend even to complaints of constitutional error, 

including the complaint that a trial court’s ruling violated a party’s right to confront 

the witnesses against him under either the United States or Texas Constitutions. 

See Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009); Pena v. 

State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009); Briggs v. State, 789 S.W.2d 

918, 924 (Tex. Crim. App. 1990).
5

In order to base an appellate complaint on a trial court’s erroneous

exclusion of evidence, a party must have obtained an adverse ruling from the trial 

court that excluded the evidence the party wished to have admitted. Tex. R. 

App. P. 33.1(a); Tex. R. Evid. 103(a); see Norman v. State, 523 S.W.2d 669, 671 

(Tex. Crim. App.), cert denied, 423 U.S. 930 (1975). A trial court’s ruling on a 

motion in limine is not a final ruling on the admissibility of evidence that falls 

within the scope of the motion. Norman, 523 S.W.2d at 671; Erlandson v. State, 

763 S.W.2d 845, 853 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d). Rather, 

a ruling on a motion in limine is only a preliminary ruling and is subject to 

reconsideration during the course of a trial. Norman, 523 S.W.2d at 671. For 

this reason, merely objecting to a trial court’s ruling on a motion in limine does 

not preserve error for appellate review. Id. Here, Diaz never requested an 

opportunity to make a record outside of the jury’s presence concerning the 

testimony he desired to elicit from Salmeron, nor did he ever obtain a final ruling 

on the admissibility of Salmeron’s prior deferred adjudications. 

In addition, Diaz did not object to the State’s motions based on a violation 

of his confrontation rights under either the United States or Texas Constitutions. 

Rather, Diaz’s objections were based on the Texas Rules of Evidence. See Tex. 

R. Evid. 401–02, 609. Constitutional objections and evidentiary objections “are 

neither synonymous nor necessarily coextensive.” Holland v. State, 802 S.W.2d 

696, 700 (Tex. Crim. App. 1991). Thus, Diaz’s evidentiary objections did not 
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provide the trial court with notice of the constitutional error he now raises on 

appeal. See id.

For the foregoing reasons, we hold that Diaz failed to preserve his sole 

issue for our review. Tex. R. App. P. 33.1. We therefore overrule Diaz’s sole 

issue and affirm the trial court’s judgment. See Tex. R. App. P. 43.2(a).

/s/ Lee Gabriel

LEE GABRIEL

JUSTICE

PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: July 28, 2016