In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-18-00236-CR 

THE STATE OF TEXAS, APPELLANT 

 

V. 

 

ALEXANDER PAUL VIERNES, APPELLEE 

 

On Appeal from the 286th District Court, Cochran County, Texas 

Trial Court No. 17-0-1557, Honorable Pat Phelan, Presiding 

 

November 16, 2018 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and CAMPBELL and PARKER, JJ. 

The trial court ordered “that [all the] experts of the State are excluded for noncompliance with the Texas Rules of Evidence, the Texas Rules of Criminal Procedure, 

and prior Court orders.” Believing this to be an instance of abused discretion, the State 

appealed. We affirm.

The first topic we address is the existence of subject matter jurisdiction over the 

appeal. Alexander Paul Viernes argues that there is none. The State contends otherwise, 

referring us to the opinion of the Texas Court of Criminal Appeals in State v. Medrano, 67 

S.W.3d 892 (Tex. Crim. App. 2002). 
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The court in Medrano dealt with the application of art. 44.01(a)(5) of the Texas 

Code of Criminal Procedure. According to the article, the state may appeal an order of a 

court in a criminal case if the order “grants a motion to suppress evidence, a confession, 

or an admission, if jeopardy has not attached in the case and if the prosecuting attorney 

certifies to the trial court that the appeal is not taken for the purpose of delay and that the 

evidence, confession, or admission is of substantial importance in the case.” TEX. CODE

CRIM. PROC. ANN. art. 44.01(a)(5) (West 2018). That provision was construed as allowing 

the State to “appeal an adverse ruling on any pretrial motion to suppress evidence as 

long as the other requirements of the statute are met.” State v. Medrano, 67 S.W.3d at

903. So too did it hold that art. 44.01(a)(5) was “not limited solely to pretrial rulings that 

suppress ‘illegally obtained’ evidence.” Id. Rather, all that is needed is a legal ruling 

excluding evidence which “could be determined pretrial under article 28.01, § 1(6)” of the 

Code of Criminal Procedure. Id. 

Section 1 of article 28.01 permits a trial court to convene pretrial hearings. The 

issues subject to determination via such a hearing were enumerated by the legislature. 

They include a hearing “to determine . . . [m]otions to suppress evidence,” TEX. CODE 

CRIM. PROC. ANN. art. 28.01, § 1(6) (West 2006) and “discovery” matters. Id. § 1(8). 

Furthermore, the term “motions to suppress” within art. 28.01, § 1(6) encompassed more 

than the exclusion of illegally obtained evidence, according to the Medrano court. Topics 

within the scope of the provision were those “in which the defendant (or the State) claims 

that certain evidence should not be admitted at trial for a constitutional, statutory, 

evidentiary or procedural reason.” State v. Medrano, 67 S.W.3d at 901. So, if the order 

on appeal involves an adverse ruling on a pretrial motion questioning whether the State’s 
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proposed evidence was admissible for any constitutional, statutory, evidentiary or 

procedural reason, then it falls within art. 44.01(a)(5). And, if within the latter, then we 

have jurisdiction over the appeal. 

Here, Viernes had moved to compel the State to disclose the identity of its expert 

witness. He also asked the trial court “to set the matter for a pretrial hearing pursuant to 

Article 28.01 of the Texas Code of Criminal Procedure, and, after hearing evidence . . .

determine whether the witness is a qualified expert to express an opinion under Rule 702 

and to disclose the basis for his opinion under Rule 703.” The motions were granted, and 

a hearing was set on which date the trial court would decide if the testimony of the expert 

or experts was admissible. When the date of the hearing arrived, the State appeared but 

without its experts. That resulted in the trial court ordering the witnesses to be made 

available for deposition, after which it would assess the admissibility of their testimony. It 

further ordered that if depositions were not completed by the date on which trial was set 

to commence “and in time for the Court’s review prior to this trial, then any expert 

testimony not completed and reviewed by the court for compliance will be excluded,” as 

previously requested by Viernes. The depositions did not occur before the deadline. So, 

the trial court ordered that the testimony be excluded. 

One could consider the resolution of the dispute below as implicating evidentiary 

Rules 702 and 703. Or it could be deemed a “sanction” for failing to comply with a court 

order, as suggested by Viernes. Yet, in either case the trial court’s decision still resulted

in the exclusion of evidence through a pretrial motion initiated under the auspices of art. 

28.01. Therefore, the order was appealable under art. 44.01, given that 44.01 allows that

“[t]he State may appeal an adverse ruling on any pretrial motion to suppress evidence as 
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long as the other requirements of the statute are met.” State v. Medrano, 67 S.W.3d at 

903. The other elements necessitating satisfaction consisted of the absence of jeopardy 

and the certification by the prosecutor to the trial court that the appeal “is not taken for the 

purposes of delay and that the evidence . . . is of substantial importance in the case.” 

TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5). Those other requirements were addressed 

in the State’s notice of appeal. Consequently, we have jurisdiction over the appeal.

Next, we turn to the substance of the complaint. In doing so, we immediately notice 

the absence of any bill of exception, offer of proof, or like measure revealing either the 

identity of the purported experts or the substance of their testimony. Apparently, they 

included at least a “SANE” nurse or interviewer. Yet, what any would actually say cannot 

be discerned from the record before us. And, that inhibits our ability to assess whether 

the trial court’s decision harmed the State, as required by Texas Rule of Appellate 

Procedure 44.2. See Mays v. State, 285 S.W.3d 884, 890 (Tex. Crim. App. 2009) (quoting 

Steven Goode, Olin Guy Wellborn III & M. Michael Sharlot, 1 Texas Practice - Guide to 

the Texas Rules of Evidence: Civil and Criminal § 103.3 (1993) (stating that the primary 

purpose of an offer of proof is to enable an appellate court to determine whether the 

exclusion of evidence was erroneous and harmful); Rideau v. State, No. 09-16-00411-

CR, 2018 Tex. App. LEXIS 867, at *24 (Tex. App.—Beaumont Jan. 31, 2018, pet. ref’d)

(mem. op., not designated for publication) (stating the same). Indeed, a bill or offer 

revealing the nature of the evidence is of such importance that without it, the complainant 

fails to preserve the issue for review. Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 

1999); Crowell v. State, No. 11-13-00376-CR, 2016 Tex. App. LEXIS 410, at *3-4 (Tex. 

App.—Eastland Jan. 14, 2016, no pet.) (mem. op., not designated for publication). 
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“Absent a showing of what such testimony would have been, or an offer of a statement 

concerning what the excluded evidence would show, nothing is presented for review.” 

Guidry v. State, 9 S.W.3d at 153. “Without an offer of proof, we cannot determine whether 

the excluded testimony would have been admissible or relevant.” Crowell v. State, 2016 

Tex. App. LEXIS 410, at *3-4. Nor can we “assess the harm, if any, that resulted from 

the exclusion of the evidence.” Id.

Because the State failed to encompass the excluded evidence within an offer of 

proof, bill of exception, or like measure evincing what the experts would have said or what 

their testimony would have shown, it did not preserve its complaint for review. We 

overrule the sole issue at bar and affirm the trial court’s order. 

 

Brian Quinn

Chief Justice

Do not publish.