NUMBER 13-11-00370-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JOE CECILIO VILLARREAL JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 377th District Court

of Victoria County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Vela

Memorandum Opinion by Chief Justice Valdez

Appellant, Joe Cecilio Villarreal Jr., was convicted of murder, see TEX. PENAL 

CODE ANN. § 19.02(b)(3) (West 2011), a first-degree felony, and intoxication assault, 

see id. § 49.07 (West 2011), a third-degree felony enhanced to a second-degree 

felony.1 Appellant was sentenced to sixty years for the murder and ten years for the 

 

1

The jury found that appellant was a repeat felony offender. See TEX. PENAL CODE ANN. § 12.42 

(West Supp. 2011).
2

intoxication assault, and the sentences were ordered to run concurrently. By one issue, 

appellant contends that during the punishment phase of the trial, the trial court 

improperly prevented his trial counsel from eliciting “background evidence that 

illuminates aspects of [his] life helpful to the jury in fairly assessing punishment.” We 

affirm.

I. BACKGROUND

During the punishment phase of trial, appellant presented testimony from, among 

others, Larry Helms, Russell Cain, and Marilyn Tranel.

2

 While Helms was testifying, the 

State objected, arguing that Helms had not known appellant prior to the criminal 

offenses and that appellant was attempting to elicit improper character evidence. The 

trial court instructed defense counsel to confine his questioning to Helms’ knowledge of 

appellant’s reputation. Defense counsel agreed. The prosecutor further objected,

stating that he did not believe that Helms could testify regarding appellant’s reputation. 

The trial court disagreed and stated that if the witness answered that he was aware of 

appellant’s reputation, the witness would be allowed to testify regarding appellant’s 

reputation.

When asked if he was familiar with appellant’s reputation, Helms replied that it 

was “a difficult question to answer” and stated, “He served in our church, came to 

church on a regular basis. We greeted each other in the lobby. My interaction with him 

seemed to be a strong person of faith.” Appellant’s trial counsel asked Helms how he 

came to that conclusion and Helms said, “Him stopping and talking to me coming in and 

out of church each week.” Trial counsel asked, “Does [appellant] have a reputation in 

 

2

In the record, this witness is identified as “Marilyn Tramel” and “Marilyn Tramer”; however, the 

witness introduced herself as “Marilyn Tranel” during her testimony.
3

your church as being someone there that—someone that is there regularly?” Helms 

responded, “Yes, sir.” The trial court interjected, stating that although he would allow 

the testimony to be admitted, trial counsel was eliciting improper character evidence. 

Defense counsel finished his examination of Helms, passed the witness, and the State 

cross-examined him. Defense counsel and the State excused Helms as a witness.

Russell testified next, stating that he had known appellant and his wife for about 

a year and a half. The State objected on the basis that Russell had only known the 

appellant after the offenses were committed. The prosecutor stated, “I don’t think any 

character evidence is relevant in this case.” The trial court replied that Russell could 

testify about appellant’s reputation but would not be allowed to testify regarding “specific 

acts of character.”

After Russell’s testimony, defense counsel asked for a hearing outside the 

presence of the jury, and the trial court complied. During the hearing, defense counsel 

stated that he wished to “submit a bill of what and proffer what” he anticipated each 

witness would testify about concerning appellant’s reputation. Defense counsel 

explained that he was not asking that the trial court admit “specific acts” but that he was 

merely requesting admission of “reputation evidence of who he is.” The prosecutor 

argued that pursuant to rule 405(a), he objected to any character evidence “from a 

witness who does not know the basis of that reputation prior to the day of the offense or 

didn’t form their opinion about [appellant] prior to the day of the offense.” See TEX. R.

EVID. 405. The prosecutor agreed that “more leeway” should be given to any witness 

who knew appellant prior to the offenses, but that he was objecting to any character 

evidence “from a witness who either they didn’t hear about [appellant’s] reputation prior 
4

to the day of the offense[s] and didn’t form their own opinion of [appellant’s] character 

prior to the date of the offense[s].” Defense counsel stated that he did not disagree with 

“the [prosecutor’s] interpretation of either rule he referenced” but that he understood the 

trial court’s ruling to be that he could not ask the witnesses “anything other than his 

reputation as a law-abiding citizen and can’t go past that.” The trial court stated, “I think 

that’s what that Rule says. Well, no. No. No. . . . You can’t go past that unless he 

brings it up on cross examination.”

Defense counsel objected to the trial court’s limitation on his questioning the 

witnesses and “proffered a bill about what each witness [would] testify to.” Defense 

counsel then stated the following:

Your Honor, with regard to [Helms] who has already testified, I 

would have proffered that he would have talked about [appellant’s] 

reputation in the church and reputation for how that affects his ability to 

follow the law.

I would also tender to the [trial] court that he was prepared to testify 

about [appellant’s] faith and how that causes him—his actions under the 

law in the State of Texas. Next, we would call Danny Pena and Danny 

Pena is prepared to testify about [appellant’s] community involvement.[

3

]

. . . .

He’s going to talk about his work ethic, how he helps, his lawabiding nature is to help those around him and those in need and the 

general character of [appellant].

. . . .

He’s not going to talk about any specific act. He’s going to talk 

about a general trait, that he’s willing to do whatever is needed for others. 

I would next call Cheri Cain. [She] has known [appellant] for twelve years. 

She’s familiar with him in the community and his reputation in the 

community and she’s going to talk about that.

 

3 Danny Pena did not testify at the punishment phase of appellant’s trial.
5

The prosecutor stated that he had no objection to Cheri’s testimony.

The trial court reminded defense counsel that he was not allowed to elicit 

character evidence and that he could elicit testimony regarding appellant’s reputation. 

The trial court also reiterated that defense counsel should not ask about specific acts 

and clarified that defense counsel could ask questions regarding what other people 

thought about appellant.

II. DISCUSSION

On appeal, appellant does not specify what admissible evidence the trial court 

excluded and only generally cites to the hearing held outside the presence of the jury. 

Thus, we will assume that appellant complains of the exclusion of the testimony offered 

by defense counsel in the hearing outside the jury’s presence. During that hearing, 

defense counsel stated that Helms would talk about appellant’s “reputation in the church 

and reputation for how that affects his ability to follow the law.” The trial court did not 

specifically exclude this evidence, but instead told defense counsel he would be limited 

to asking questions regarding appellant’s reputation and would not be allowed to inquire 

into specific acts.

The proponent of the evidence must tell the trial court why the evidence is 

admissible. Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) (“The basis 

for party responsibility is, among other things, Appellate Rule 33.1. It provides that as a 

prerequisite to presenting a complaint for appellate review, the record must show that 

the party ‘stated the grounds for the ruling that [he] sought from the trial court with 

sufficient specificity to make the trial court aware of the complaint.’ So it is not enough 

to tell the judge that evidence is admissible. The proponent, if he is the losing party on 
6

appeal, must have told the judge why the evidence was admissible.”); Martinez v. State, 

91 S.W.3d 331, 335–36 (Tex. Crim. App. 2002) (“Thus, the party complaining on appeal 

(whether it be the State or the defendant) about a trial court’s admission, exclusion, or 

suppression of evidence ‘must, at the earliest opportunity, have done everything 

necessary to bring to the judge’s attention the evidence rule [or statute] in question and 

its precise and proper application to the evidence in question.’”) (citations omitted). 

Here, appellant did not tell the trial court what specific acts Helms would relate during 

his testimony. He also did not state the basis for the admission of those specific acts. 

Therefore, error, if any, by the trial court in limiting Helm’s testimony regarding specific 

acts is not preserved for our review. See Reyna, 168 S.W.3d at 176; Martinez, 91 

S.W.3d at 335–36.

However, regarding Helms’ testimony about appellant’s faith, even assuming 

without deciding, that the trial court should have allowed such testimony, we conclude 

that the error, if any, was harmless because we are convinced beyond a reasonable 

doubt that the trial court’s ruling made no contribution to the jury’s determination of 

appellant’s sentence. See Smith v. State, 919 S.W.2d 96, 102–103 (Tex. Crim. App. 

1996) (plurality opinion) (finding that the error in admitting victim impact evidence during 

the punishment phase was harmless beyond a reasonable doubt). The trial court 

allowed appellant to present evidence of appellant’s good reputation. During closing 

argument, defense counsel stated that appellant was a good person and that everyone 

who had encountered appellant had testified that appellant was a good and hardworking person.
7

During its closing argument, the State acknowledged that appellant is a “nice 

guy.” The State, however, pointed out that appellant killed his victim after driving his 

vehicle with a blood alcohol level of .27. Also, the State presented ample evidence at 

the punishment phase of the trial regarding appellant’s criminal history, including that: 

(1) appellant had pleaded guilty to felony driving while intoxicated on April 5, 2001 and 

was sentenced to three years’ incarceration; (2) appellant was convicted of “driving 

while intoxicated subsequent offense” on August 4, 1992 and was placed on community 

supervision for a period of five years that was extended for two years; (4) appellant had 

pleaded guilty to the felony offense of operating a motor vehicle while intoxicated on 

June 26, 1990 and had been sentenced to forty-five days’ confinement with his license 

suspended for one year; (5) appellant was indicted by a grand jury on January 20, 1989 

for the offense of driving while intoxicated on December 18, 1988; and (6) appellant had 

been convicted of driving and operating a motor vehicle in a public place while 

intoxicated on February 12, 1987 and on October 12, 1982. Finally, the State told the 

jury that it was irrelevant that appellant was a “nice guy” because appellant “continued 

to put our community at danger [sic] his entire adult life until he finally, finally he killed 

somebody.” The State averred that although appellant probably did not intend to kill 

anyone, he “knew it was going to be a possibility when he kept doing the same conduct 

over and over and over again.”

The trial court allowed defense counsel to question Helms regarding appellant’s 

reputation in the church and his record of attendance. Helms testified that appellant 

had “served” in their church and went to church on a regular basis. He further stated 

that appellant was “a strong person of faith” and had a reputation of being at church
8

regularly. Defense counsel did not ask Helms any questions regarding appellant’s 

ability to follow the law, and the trial court did not prevent defense counsel from asking 

such a question. Therefore, to the extent that appellant complains on appeal that the 

trial court prevented him from asking Helms such a question; we conclude that this 

complaint is also without merit. See TEX. R. APP. P. 33.1 (providing that to preserve 

error, the defendant must make a timely request or objection and obtain a ruling from 

the trial court).

Furthermore, under rule 103, reviewable error “may not be predicated upon a 

ruling which admits or excludes evidence unless a substantial right of the party is 

affected.” TEX. R. EVID. 103(a). Here, appellant has not shown that the exclusion of 

Helms’ testimony regarding appellant’s faith affected a substantial right. See id. 

Finding no harm, we overrule appellant’s sole issue.

Finally, as a sub-issue, appellant asserts that the trial court limited Tranel’s 

testimony based on the State’s objections, which “interrupted the flow of mitigating 

testimony.” Appellant has not presented a clear and concise argument with citation to 

appropriate authority in support of this assertion. See id. R. 38.1(i). Therefore, we 

conclude that it is inadequately briefed. We overrule appellant’s sub-issue.

III. CONCLUSION

We affirm the trial court’s judgments.

__________________

ROGELIO VALDEZ

Chief Justice

Do not Publish. 

TEX. R. APP. P. 47.2(b)

Delivered and filed the 

19th day of July, 2012.