COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00037-CR

EUGENE HARRIS TAYLOR APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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MEMORANDUM OPINION1

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A jury convicted Appellant Eugene Harris Taylor of indecency with a child 

by contact and assessed his punishment at eight years’ confinement, probated.

The trial court sentenced him accordingly, setting the probationary period at ten 

years.

Appellant brings three points on appeal, arguing that the trial court erred by

improperly limiting his cross-examination of the complainant and by permitting a 

 

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

detective to testify concerning the credibility of the complainant. Because the 

trial court did not reversibly err, we affirm the trial court’s judgment.

Facts

Appellant was charged by indictment with one count of indecency with a 

child. At the time of the offense, the complainant, V.W., was a freshman in high 

school. Appellant was a bus driver for the school district. Appellant told V.W. 

that he would be driving one of the buses to an upcoming football game and 

offered to give her a ride.

On the day of the game, V.W. met Appellant at the school. Appellant was 

scheduled to drive an equipment truck for the band to the football game. V.W. 

rode with him. On the drive, Appellant told V.W. that she had nice breasts and 

asked her what she thought of dating older men. He also poked her left breast. 

V.W. texted A.R., her friend and former girlfriend, during the drive and told her

what was happening. When Appellant and V.W. arrived at the game, Appellant 

put his hand inside her shirt and bra, grabbed one breast, and then touched the 

other one before she moved.

After Appellant got out of the truck, V.W. called A.R. V.W. then left the 

truck and found A.R. V.W. told A.R. that Appellant had touched her breasts. 

A.R. told her brother’s then girlfriend, Mindy, what V.W. had told her and 

arranged for Mindy to give V.W. a ride home.

At trial, Appellant’s defense counsel asked V.W. if Mindy was ―induced or 

persuaded‖ to give her a ride because of her claim that Appellant had fondled her 
3

and whether Mindy was aware of V.W.’s claims. The State objected twice that 

the question called for speculation, and the trial court sustained the objections. 

Appellant’s defense counsel also attempted to cross-examine V.W. about 

whether she was ―substantially depressed‖ over her breakup with A.R. when she 

made the allegations. The questioning was part of his defense strategy to 

establish that V.W. had made up the allegations to elicit sympathy from A.R. The 

trial court sustained the State’s objection to that line of questioning on grounds of 

relevance.

The State asked Kevin Rogers of the Azle Police Department, who had 

investigated V.W.’s allegations, whether ―at any time since then, [he had] had 

any concerns about the case that [he] filed?‖ Appellant made a timely objection, 

and the trial court sustained the objection. The State then asked Rogers whether 

he had any concerns whether the claim might be made up. Appellant again 

objected. The trial court initially sustained the objection, but, after the State 

argued that it was asking for the officer’s opinion about his investigation based on 

his training and experience, the trial court allowed the question. The State then 

asked Rogers, ―[B]ased on your training and experience and based on the 

entirety of your investigation, did you have any concerns that this was made up?‖

Rogers answered, ―No.‖
4

Cross-examination

In his first two points, Appellant argues that the trial court reversibly erred 

by disallowing the cross-examination of V.W. regarding her motive and state of 

mind in telling A.R. that he had fondled her. The State argues that Appellant 

failed to preserve his constitutional complaints for review because he raised no 

constitutional complaints to the trial court. We agree.2 We nevertheless address 

his bare evidentiary complaints.

Defense counsel had asked V.W. whether Mindy was aware of any of the 

abuse allegations. When the State’s objection to speculation was sustained, 

defense counsel then asked whether V.W. had discussed any of the 

―inappropriate activities‖ with Mindy. Her answer was ―No.‖ When the State later 

asked A.R. on direct examination whether the fondling allegations had been used 

to persuade Mindy to give V.W. a ride home from the game, A.R. admitted that 

she had told Mindy ―the gist of it,‖ ―that [V.W.] got sexually molested because 

that’s what [V.W.] told her . . . .‖

We hold that the trial court did not err by sustaining the State’s objections 

to defense counsel’s questions posed to V.W. regarding Mindy as those 

complained-of questions were phrased because any awareness that Mindy had 

 

2See Tex. R. App. P. 33.1(a); Mendez v. State, 138 S.W.3d 334, 342 (Tex. 

Crim. App. 2004); see also Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. 

App. 2009).
5

of the abuse allegations was beyond V.W.’s personal knowledge.

3 When 

defense counsel limited his question to whether V.W. had discussed the activities 

with Mindy, that question called for information within V.W.’s personal knowledge 

and was properly allowed. Additionally, the evidence that Appellant sought to put 

before the jury came in during the testimony of A.R., so even if the trial court had

erred, such error would have been harmless.4 We overrule Appellant’s first point.

As for the questions regarding V.W.’s state of mind, defense counsel made 

a bill of exceptions to clarify the evidence that he was eliciting and his purpose 

for eliciting it. He showed that V.W. and A.R. had been in a romantic relationship 

that had fallen upon rocky ground. V.W. had posted messages on her MySpace 

page stating that she was horribly depressed by her loss of A.R. Although V.W.

was vague about the time period during which she had posted this personal 

information about her state of mind, she, nevertheless, had been prolific in her 

expressions of pain, all of which had been admitted as part of the bill.

Appellant’s theory was that V.W. concocted the story of being fondled in an 

attempt to regain A.R.’s affections. But after making his offer of proof, defense 

counsel did not seek to admit the testimony he had elicited. He acquiesced in 

the trial court’s ruling. In order to preserve Appellant’s complaint for appellate 

 

3See Tex. R. Evid. 602; Kelly v. State, 321 S.W.3d 583, 598 (Tex. App.—

Houston [14th Dist.] 2010, no pet.).

4See Tex. R. App. P. 44.2(b); Solomon v. State, 49 S.W.3d 356, 365 (Tex. 

Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 

1998); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing 

Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)).
6

review, he was required to make the trial court aware of his complaint.5 As the 

Texas Court of Criminal Appeals has explained,

Rule of Evidence 103(a)(2) limits the scope of issues which may be 

appealed when evidence is limited or excluded. Error may not be 

predicated upon a ruling which . . . excludes evidence unless a 

substantial right of the party is affected, and . . . the substance of the 

evidence was made known to the court by offer, or was apparent 

from the context within which questions were asked. The offer of 

proof may be in question-and-answer form or in the form of a 

concise statement by counsel. An offer of proof to be accomplished 

by counsel’s concise statement must include a reasonably specific 

summary of the evidence offered and must state the relevance of the 

evidence unless the relevance is apparent, so that the court can 

determine whether the evidence is relevant and admissible. The 

primary purpose of the offer of proof is to enable an appellate court 

to determine whether the exclusion was erroneous and harmful. A 

secondary purpose is to permit the trial judge to reconsider his ruling 

in light of the actual evidence.

This court has recognized a distinction between the general 

rule in Rule 103(a)(2) and the case in which the defendant is not 

permitted to question a State’s witness about matters that might 

affect the witness’s credibility.

In the latter case, the defendant need not show what his 

cross-examination of the witness would have affirmatively 

established; he must merely establish what general subject matter 

he desired to examine the witness about during his crossexamination and, if challenged, show on the record why such should 

be admitted into evidence. In such a case the trial court’s ruling has 

prevented a defendant from questioning a State’s witness about 

subject matters which affect the witness’s credibility, that is, matters 

which might show malice, ill feeling, ill will, bias, prejudice, or 

animus.6

 

5See Tex. R. App. P. 33.1(a)(1), (2), 33.2(a); Lovill v. State, 319 S.W.3d 

687, 691–92 (Tex. Crim. App. 2009); Mendez, 138 S.W.3d at 341.

6Holmes v. State, 323 S.W.3d 163, 168 (Tex. Crim. App. 2009) (emphasis 

added) (citations and internal quotation marks omitted).
7

Common sense suggests that if a party makes an offer of proof in an 

attempt to convince a trial court that a ruling is erroneous or to persuade a trial 

court to reconsider the ruling in light of the actual evidence, the party must, in 

addition to showing the trial court what the actual testimony would be, explain

why the ruling is erroneous or, at a minimum, ask the trial court to reconsider the 

ruling after making the offer of proof. This requirement is based on the theory of 

party responsibility explained in Reyna v. State.

7

 Because Appellant neither 

explained why the trial court’s ruling was erroneous nor asked the trial court to 

reconsider the ruling, he has failed to preserve his complaint for appellate review.

We overrule Appellant’s first and second points.

Opinion of Credibility

In his third point, Appellant argues that the trial court erred by permitting a 

detective to testify that he had no concerns that the case was made up. While 

the investigating detective, Rogers, was testifying, the State asked him whether 

he had any concerns that the complainant’s accusations were made up. The 

following exchange took place:

Q Okay. And at any time since then, have you had any 

concerns about the case that you filed?

[TRIAL COUNSEL]: Objection, improper opinion, not 

relevant whether the officer has concerns.

THE COURT: Sustained.

 

7

168 S.W.3d 173, 177 (Tex. Crim. App. 2005).
8

[TRIAL COUNSEL]: Thank you.

Q . . . Did you have any concerns—through your 

investigation, did you have any concerns about whether or not you 

didn’t have an offense or that this might be made up?

[TRIAL COUNSEL]: Same objection, Your Honor.

THE COURT: Sustained.

[PROSECUTOR]: May I respond, Judge?

THE COURT: Yes.

[PROSECUTOR]: I’m just asking—confining it to his 

investigation, if he ever had during his investigation any concerns 

about it being made up. I’d ask that I be allowed to ask that 

question.

[TRIAL COUNSEL]: Your Honor, that’s an improper 

opinion. It’s not relevant. It’s evading [sic] province of the [j]ury 

and—

[PROSECUTOR]: I would say that it was based on his 

training and experience. It’s an opinion about his investigation.

[TRIAL COUNSEL]: Well, in that vein, it’s given greater 

emphasis although there is no expertise in that area or opinions of 

the validity or invalidity, no expertise in matters as juries.

THE COURT: I’m going to allow the question.

Q . . . Detective, based on your training and experience 

and based on the entirety of your investigation, did you have any 

concerns that this was made up?

A No, sir.

The Texas Court of Criminal Appeals has held that ―Rule 702 does not 

permit an expert to give an opinion that the complainant or class of persons to 
9

which the complainant belongs is truthful.‖

8

 The State came very close to and 

indeed, may have nudged a toe across the line in asking Rogers whether, in his 

expert opinion, he had any concern about ―it being made up.‖ But the State did 

not ask any further questions about Rogers’s opinions of the veracity of V.W.’s

allegations. And, in any event, no further mention of Rogers’s opinion was made, 

either in questioning or in final argument. Even if we were to hold that the trial 

court erred by allowing the State to inquire whether Rogers ever had the feeling 

that ―it‖ or ―this‖ was made up, we can find nothing in the record to support a 

conclusion that this testimony affected Appellant’s substantive rights in either 

stage of the trial.

9 We overrule Appellant’s third point.

Conclusion

Having overruled Appellant’s three points on appeal, we affirm the trial 

court’s judgment.

LEE ANN DAUPHINOT

JUSTICE

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

DO NOT PUBLISH

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

DELIVERED: March 1, 2012

 

8Yount v. State, 872 S.W.2d 706, 712 (Tex. Crim. App. 1993).

9See Tex. R. App. P. 44.2(b); Solomon, 49 S.W.3d at 365; Johnson, 967 

S.W.2d at 417; King, 953 S.W.2d at 271.