AFFIRMED and Opinion Filed November 30, 2018 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-18-00016-CR No. 05-18-00017-CR VICTOR MONROE COLTER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F-16-31334-Q


### MEMORANDUM OPINION Before Justices Stoddart, Whitehill, and Boatright Opinion by Justice Whitehill A jury convicted appellant Victor Monroe Colter of two counts o f aggravated sexual assault of a child. On appeal he raises one issue, complaining that th e trial court erred by precluding him from presenting evidence that the complainant made a false sexu al molestation accusation against someone else. We conclude that the trial court did not abuse i ts discretion because the proffered evidence did not create an inf erence of bias, prejudice, or mot ive. We therefore affirm.
I. B ACKGROUND A. Procedural History By two indictments, appellant was accused of sexually assaultin g his great niece J.D., a child younger than fourteen, on or about July 15 and July 30, 2 014.–2– Appellant pled not guilty, and the issue of guilt was tried bef ore a jury. The jury found him guilty of both crimes. Appellant and the State agreed that (i) he would be sentenced t o ten years in prison for each offense and (ii) he would retain the right to appeal. The tria l judge sentenced appellant pursuant to the agreement. The sen tences run concurrently. Appellant timely appealed the convictions.
B. Facts Trial evidence supported the following facts: In the summer of 2014, appellant was in between jobs and lived with his older sister (Sister) for a few months. Twelve-yea r-old J.D. and he r two younger sis ters, who were great nieces of both Sister and appellant, were living with Sister at the time because their mother could not care for them. J.D. testified about multiple molestation incidents involving a ppellant. She said that on one occasion she was in the garage with appellant when he told her to pull her pants down. She complied, and he touched her “[b] ehind” and her vagina with his “middle part.” Then they heard J.D.’s cousins and sisters playing outside, and appellant stood up and “put it back in his pants.” Then they both walked out of the garage. J.D. testified that on a later occasion, when it was nighttime, she took the trash out and appellant followed her outside. While they were outside, appel lant told J.D to pull her pants down, and she complied. He tried to put his “middle part” in her vag ina, and it touched the skin of her vagina. Afterwards, she went inside and took a shower. Later that night, appellant called J.D. into his bedroom, locked the door, a nd put his penis in her mouth. Appellant moved out of Sister’s house in August 2014.–3– J.D. made an outcry to Sister in July 2016. Sister called the police. This prosecution followed.
II. A NALYSIS A. Issue Presented: Did the trial court abuse its discretion b y excluding evidence that J.D. previously made a false outcry of sexual abuse against som eone else? Appellant’s sole issue argues th at the trial court abused its d iscretion by refusing to allow him to call J.D. back to the stand to develop evidence that she once made a false accusation of sexual molestation against someone else. Appellant argues that the evidence was admissible because: (i) the evidence was a prior inconsistent statement ad missible under Texas Rule of Evidence 613 and (ii) appellant h ad a constitutional right to c ross-examine J.D. about the false accusation to impeach her credibility and show bias or motive t o falsely accuse him.
1. Standard of Review We review an evidentiary ruling for abuse of discretion. Weatherred v. State , 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). We uphold the ruling if it wa s within the zone of reasonable disagreement. Id . We review the ruling in light of what was before the trial c ourt at the time it ruled. Id

. 2. Did appellant preserve error? The State argues that we should overrule appellant’s issue (in whole or in part) because he failed to preserve error. Specifically, the State argues that (i) appellant’s entire issue is forfeited because the trial court did not rule on appellant’s proffer and alternatively (ii) appellant’s Rule 613 argument on appeal is forfeited because it does not comport wit h his trial court arguments. We reject the State’s first argum ent but agree with its second. a. Applicable Rules To preserve a complaint that the trial court erroneously exclud ed evidence, a party must specifically articulate the legal basis that makes the evidence admissible. Golliday v. State , No.–4– PD-0812-17, 2018 WL 5624404, at *4 (Tex. Crim. App. Oct. 31, 20 18); Reyna v. State , 168 S.W.3d 173, 179–80 (Tex. Crim. App. 2005); cf . T EX
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. P. 33.1(a)(1)(A) (complaining party must state the grounds for the desired ruling unless the specif ic grounds were apparent from the context). Only arguments made in the trial court are preserved for appeal. See Thomas v. State , 505 S.W.3d 916, 924 (Tex. Crim. App. 2016) (“If a trial court o bjection does not comport with arguments on appeal, error has not been preserved.”) (footnote omitted). The party must also obtain a rul ing, either express or implicit , or object to the court’s refusal to rule. T EX
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. P. 33.1(a)(2). Additionally, the party must make an offer of proof unless the evidence’s substance was apparent from the context. T EX
. R. E VID . 103(a)(2). The offer of proof may consist of a concise statement by counsel, or it may be presented in question-and-an swer form. Mays v. State , 285 S.W.3d 884, 889 (Tex. Crim. App. 2009). If counsel opts to mak e a statement, the proffer must (i) include a reasonably specific summary of the evidence offer ed and (ii) state the evidence’s relevance unless the re levance is apparent. Id . at 889–90.
b. The Record During appellant’s case, the jury was excused, and Sister testi fied that (i) appellant’s daughter V. told Sister that J.D. had told V. that “something h ad went on” between J.D. and a man named R.M. and (ii) when Sister asked J.D. about it, J.D. admit ted she told V. that but she also said that it wasn’t true and she said it only because V. “kept hounding her about it.” Also outside the jury’s presence, V. testified that during the spring of 2014, J.D. told her that R.M. had “touched her in places he wasn’t supposed to.” V . told Sister about the outcry. After Sister and V. testified, appellant asked to call J.D. bac k to the stand so that he could ask her whether she made an al legation against R.M. and whether it was true or false. He argued, “[T]his isn’t character eviden ce, Your Honor. It’s impeachment of her credibility, or it’s proof–5– that she’s made a false statement.” The State objected based o n Rule 608 and the hearsay rule. After further argument, the trial judge said, “I don’t think yo u can call [J.D.] for that purpose.” Then the proceedings went off the record. When the proceedings resumed on the record, the judge instructed appellant to “make [ a] bill of exceptions.” Appella nt then said the following: If I would call the co mplaining witness back to the stand in th is case and ask her if [R.M.] had ever molested her, she would say no, and then I woul d ask her if she made an allegation in 2014 to [V.] that [R.M.] had molested her , she would say, yes. And then I would ask her, if at the time she made that acc usation that allegation was false, and she would say yes. And we think that the failure of the Court to allow this testim ony into evidence at this stage of the trial denies my client his right to effective ly cross-examine a witness against him under Davis versus Alaska and his right to confrontation under the Sixth Amendment t o the Constitution. After a short exchange with t he trial judge, appellant continue d: APPELLANT: All right. I would like to add to the previous basi s for the objection to the exclusion of that testim ony, the Court of Criminal Appea ls opinion in Hammer versus State, and the footnote 30 thereof which refers t o the doctrine of chances, and the—I'll spell this for you, 24 Quinnipiac, that's , Q-U-I-N-N-I-P-I-AC, Law Review. THE REPORTER: I’m sorry. C an you—a little bit slower. APPELLANT: Q-U-I-N-N-I-P-I-A-C, Law Review 609, 2006, which—wh ich the Court of Criminal Appeals incor porated in their appendix as a l ong discussion about the admissibility of false accusations of sex abuse. THE COURT: That’s it? APPELLANT: That’s it. THE COURT: Okay. You want to bri ng the jury in, Ms. Johnson? Trial then resumed before the jury. c. Applying the Law to the Facts First, we reject the State’s contention that the trial court di d not rule on appellant’s proffer. Although the court did not expressl y sustain the State’s object ions or deny appellant’s request to recall J.D. for examination, the court heard the parties’ argum ents, went off the record, and–6– resumed proceedings on the record by telling appellant to make his “bill of exceptions.” 1 Appellant made an offer of proof and stated additional reasons for the ev idence’s admissibility. 2 The court acknowledged the reasons and orde red the trial to resume before the jury, which occurred without the proffered testimony’s being presented before the jury. Und er the circumstances, we conclude that the trial court implicitly ruled that appellant’s proffere d evidence was inadmissible when it told appellant to make a “bill of exceptions.” See T EX
. R. E VID . 103(a)(2) (offer of proof is necessary to preserve error “if t he ruling excludes evidence”); Jones v. State , 540 S.W.3d 16, 24 (Tex. App.—Houston [1st Dist.] Aug. 1, 2017, pet. granted) (an offer of proof is necessarily made after the trial court has alrea dy ruled that evidence is inadmi ssible). Furthermore, this record shows that appellant preserved his C onfrontation Claus e sub-issue. Second, we agree with the State that appellant did not preserve his appellate argument that the proffered evidence was admissible under Texas Rule of Evide nce 613 as a prior inconsistent statement. Appellant never mentioned Rule 613 or argued that J .D.’s contradictory statements about R.M. were admissible because they were inconsistent with her trial testimony. See
Covarrubias v. State , No. 08-11-00176-CR, 2013 WL 557177, at *3 (Tex. App.—El Paso Feb. 13, 2013, no pet.) (not designated for publication) (“A ‘prior inco nsistent statement’ is a prior statement made by a witness that is inconsistent with that witn ess’s testimony at trial.”). Accordingly, we will not consider appellant’s argument that the proffered evidence was admissible under Rule 613.

1 An offer of proof was formerly known as an informal bill of ex ception. In re Estate of Miller , 243 S.W.3d 831, 837 (Tex. App.—Dallas 2008, no pet.). The terms “offer of proof” and “bill of except ion” are often used interchangeably. Ethridge v. State , No. 01-10-00027-CR, 2011 WL 2502542, at *3 (Tex. App.—Houston [1st Dist.] June 23, 2011, no pet.) (mem. op., not des ignated for publication).
2 Appellant asserts without explana tion that the trial court den ied him the opportunity to present evidence in his “Bill of Exc eptions.” The record does not support this assertion. In any event, the asse rtion is not adequately briefed to present anything for review. See T EX

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. P. 38.1(i).–7– 3. Did the trial court abuse its discretion by excluding the ev idence in violation of appellant’s Confrontation Clause rights? We now consider whether appellan t had a constitutional right to cross-examine J.D. about the false accusation to impeach her credibility or to show bias or motive to falsely accuse him. We conclude that the trial cour t did not abuse its discretion by r ejecting appellant’s argument. a. Applicable Law The Sixth Amendment right to c onfront witnesses includes the ri ght to cross-examine them to attack their general credibility and to show their possible bias, self-interest, or motives in testifying. Hammer v. State , 296 S.W.3d 555, 561 (Tex. Crim. App. 2009) (citing Davis v. Alaska , 415 U.S. 308, 316 (1974)). However , the right is not unqualifi ed, and the trial court has wide discretion in limiting the scope and extent of cross-examinatio n. Id . Ordinarily, evidentiary rules limiting the admissibility of evi dence do not conflict with the Sixth Amendment. Id

. Generally, a witness may be cross- examined on any relevant matt er, including credibility.
T EX
. R. E VID . 611(b). However, Rule 608(b) b ars cross-examination about sp ecific instances of conduct, other than criminal convictions as provided in Rule 60 9(a), for the purpose of attacking the witness’s character for truthfulness. T EX
. R. E VID . 608(b). When applying the Sixth Amendment, courts have distinguished at tacks on a witness’s general credibility from attacks that reveal the witness’s poss ible biases, prejudices, or ulterior motives that relate directly to the issues or people in the par ticular case. See, e.g. , Hammer , 296 S.W.3d at 562–63; Terry v. State , No. 05-12-00279-CR, 2013 WL 1838646, at *4 (Tex. App.— Dallas Mar. 26, 2013, pet. ref’d) (not designated for publicati on). The defendant does not have an absolute right to impeach a witness’s general credibility, but the Sixth Amendment is offended if an evidentiary rule bars a defendant from cross-examining a wit ness about possible biases, prejudices, and motives to such a n extent that he could not pre sent a vital defensive theory.
Hammer , 296 S.W.3d at 562–63; Terry , 2013 WL 1838646, at *4.–8– Hammer and Terry illustrate these principles. In Hammer , the defendant was being prosecuted for indecency with a child (his daughter) and unsucc essfully sought to introduce evidence that the complainant had made a false sexual assault a ccusation against someone else. 296 S.W.3d at 558–59. The court of criminal appeals held that the trial court erred by excluding the evidence because on the case’s specific facts the false acc usation was strong evidence that the complainant had a motive to falsely accuse her father. Id . at 567. Specifically, the complainant made the false accusation against “Ignacio” after she had actua lly had consensual intercourse with her boyfriend Anthony, whom her father did not approve of, and after her father took her to the hospital for a sexual assault examination. She was so upset th at she threatened to commit suicide shortly thereafter. According to the court of criminal appeals , these facts showed that the complainant (i) had a motive to falsely accuse her father and ( ii) was not above making a false accusation to keep her father from learning the truth and punis hing her. Id

. In Terry , by contrast, a sexual-assault defendant unsuccessfully sought to introduce evidence that the complainant had lied to her mother about a wh olly independent “sexting” incident involving her and a schoolmate. 2013 WL 1838646, at * 1, *4. We held that the trial court did not abuse its disc retion by excluding the evidence of the c omplainant’s lie because the lie was not an accusation, did not involve the defendant or the allegat ions against him, and did not show that the complainant had any bi as, prejudice, or ulterior motiv e to accuse the defendant. Id . at *4. b. Applying the Law to the Facts We hold that the trial court did not abuse its discretion by ex cluding the proffered evidence. Appellant’s arguments that the evidence was admissible to impea ch her credibility and to show bias, prejudice, or an ulterior mo tive to testify against him a re not persuasive. First, appellant’s argument that the evidence was admissible to impeach J.D. credibility conflicts with Rule 608(b)’s prohibition of such evidence. Hammer makes clear that the–9– Confrontation Clause does not com pel the admission of prior fal se accusations offered simply to attack a complainant’s general credibility. See 296 S.W.3d at 564–65 & n.26. Second, although appellant repeatedly urges that the proffered evidence would have shown J.D.’s bias against appellant or motive to accuse him, he does not explain how this is so. The record indicates that (i) in the spring of 2014, J.D. made a va gue outcry to V. that R.M. “touched her in places he wasn’t supposed t o” and (ii) J.D. later told S ister that her outcry wasn’t true and she said it only to make V. st op hounding her ab out it. Nothin g about this evidence suggests J.D. was biased or prejudiced against appellant or had an ulterior m otive to make a false accusation against him. Because the proffered evidence did not create an inference of b ias, prejudice, or motive, the Confrontation Clause did not compel the trial court to admi t the evidence. See Solis v. State , No. 13-14-00633-CR, 2016 WL 872677, at *3 (Tex. App.—Corpus Chr isti–Edinburg Feb. 18, 2016, no pet.) (mem. op., not designated for publication) (tria l court permissibly excluded complainant’s past rape allegation that did not tend to show mo tive or bias in defendant’s case);
Chitwood v. State , 350 S.W.3d 746, 748 (Tex. App.—Amarillo 2011, no pet.) (same)

. Accordingly, the trial court acted within the zone of reasonabl e disagreement in ruling that the proffered testimony was in admissible and did not abuse its discretion.
B. Conclusion For the foregoing reasons, we overrule appellant’s sole issue.–10– III. D ISPOSITION We affirm the trial court’s judgments.

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. P. 47.2(b) 180016F.U05 /Bill Whitehill/ BILL WHITEHILL JUSTICE–11– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
VICTOR MONROE COLTER, Appellant
No. 05-18-00016-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 204th Judicial District Court, Dallas County, Texas Trial Court Cause No. F-16-31334-Q. Opinion delivered by Justice Whitehill. Justices Stoddart and Boatright participating. Based on the Court’s opinion of t his date, the judgment of the trial court is AFFIRMED

. Judgment entered November 30, 2018–12– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
VICTOR MONROE COLTER, Appellant
No. 05-18-00017-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 204th Judicial District Court, Dallas County, Texas Trial Court Cause No. F-16-31335-Q. Opinion delivered by Justice Whitehill. Justices Stoddart and Boatright participating. Based on the Court’s opinion of t his date, the judgment of the trial court is AFFIRMED

. Judgment entered November 30, 2018.