NO. 07-08-00261-CR 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL A 

MAY 26, 2010 

RUBEN ISREAL SANCHEZ, APPELLANT 

v. 

THE STATE OF TEXAS, APPELLEE 

 FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY; 

NO. 19,175-B; HONORABLE DAVID GLEASON, JUDGE 

Before CAMPBELL and HANCOCK and PIRTLE, JJ. 

MEMORANDUM OPINION 

Appellant Ruben Israel Sanchez appeals from his jury conviction of the offense of 

aggravated assault with a deadly weapon and the resulting sentence of fifteen years=

confinement in the Institutional Division of the Texas Department of Criminal Justice and 

imposition of a $10,000 fine. Through one issue, appellant contends the trial court 

abused its discretion by refusing to admit evidence regarding appellant=s “mental 

illness”1 in mitigation of punishment. We affirm the trial court=s judgment. 

 1 “Mental illness” is appellant’s phrase. 
2 

Background 

Appellant was charged by indictment with aggravated assault with a deadly 

weapon.2

 At his trial, the evidence showed appellant and the victim fought in the 

parking lot and nearby street of a drive-in restaurant. Friends of the victim surrounded 

the two men during the fight. Appellant stabbed the victim in the stomach with a knife. 

When later arrested by Amarillo police, appellant told officers he Ahad stabbed the guy 

in self-defense as there was too many of them.@ The jury found appellant guilty as 

charged in the indictment. 

During the punishment phase of trial, the State presented evidence of several 

other crimes and wrongs committed by appellant.3

 Testimony showed incidents in 

which appellant acted aggressively toward police and others, participated in fights, and 

possessed various types of weapons. On appeal, appellant argues this evidence 

demonstrated his erratic and violent behavior on numerous occasions and implies this 

behavior is indicative of his mental illness. Appellant=s sister was his only punishmentphase witness and testified appellant had been diagnosed with bipolar disorder. The 

State generally objected and the court sustained the objection. 

 2

 See Tex. Penal Code Ann. ' 22.02 (Vernon 2003). This is a second degree 

felony punishable by imprisonment for a term of not more than 20 years or less than 2 

years and a fine not to exceed $10,000. Tex. Penal Code Ann. ' 12.33 (Vernon 2003). 

3

 The State also presented evidence to show appellant had been previously 

convicted of several misdemeanor offenses including false identification, possession of 

marijuana, discharging a firearm in a municipality and assault. 
3 

Analysis 

Via his sole issue, appellant contends the trial court fundamentally erred by 

excluding testimony concerning his history of mental illness. He asserts that by 

sustaining the State=s non-specific objection to appellant=s sister=s testimony as to his 

diagnosis, the court wholly foreclosed the presentation of relevant and valuable 

testimony that explained appellant=s actions and offered hope for rehabilitation with 

proper treatment. 

Standard of Review 

We review a trial court=s admission or exclusion of evidence for abuse of 

discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005); 

Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh=g). A trial 

court abuses its discretion when its decision is so clearly wrong as to lie outside that 

zone within which reasonable persons might disagree. McDonald, 179 S.W.3d at 576; 

Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992). Texas Code of Criminal 

Procedure Article 37.07, ' 3(a) governs the admissibility of evidence at a trial=s 

punishment phase and grants the trial court broad discretion to admit evidence that it 

deems relevant to sentencing. Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a) (Vernon 

Supp. 2008); McGee v. State, 233 S.W.3d 315, 318 (Tex.Crim.App. 2007), citing Erazo 

v. State, 144 S.W.3d 487, 491 (Tex.Crim.App. 2004). Article 37.07, ' 3(a)(1) states in 

relevant part: 
4 

[E]vidence may be offered by the state and the defendant as to any matter 

the court deems relevant to sentencing, including but not limited to the 

prior criminal record of the defendant, his general reputation, his 

character, an opinion regarding his character, . . . evidence of an 

extraneous crime or bad act that is shown beyond a reasonable doubt by 

evidence to have been committed by the defendant or for which he could 

be held criminally responsible, regardless of whether he has previously 

been charged with or finally convicted of the crime or act. Id.

Evidence is Arelevant to sentencing@ within the meaning of article 37.07, ' 3(a) Aif 

the evidence is >helpful to the jury in determining the appropriate sentence for a 

particular defendant in a particular case.=@ McGee, 233 S.W.3d at 318. 

Errors in the admission of evidence generally are subject to the rules requiring a 

timely request to the trial court, and a ruling on the request, as prerequisite to the 

presentation of the complaint on appeal. Tex. R. App. P. 33.1(a). Unless the substance 

of excluded evidence is apparent from the context in which questions were asked, error 

predicated on its exclusion is preserved by an offer of proof and a ruling. Tex. R. Evid. 

103(a)(2); Reyna v. State, 168 S.W.3d 173, 177 (Tex.Crim.App. 2005); Warner v. State,

969 S.W.2d 1, 4 (Tex.Crim.App. 1998) (per curiam). 

During appellant=s sister=s punishment testimony, the following exchange 

occurred: 

Q: (by defense counsel) Now, first, during [appellant=s] life, do you know him to 

haveBor not to have had health issues? 

A: Yes. He has been diagnosed with bipolar disorder. 
5 

Prosecutor: Your Honor, I=m going to object. 

The Court: Sustained.4

Defense counsel: Okay. 

Appellant’s counsel then moved on to another subject. Nowhere else in the 

record is further mention made of appellant’s bipolar disorder or other mental condition.5

Appellant made no mention or argument to the jury of such a disorder, at any point 

during the trial. No further attempt was made to introduce evidence appellant suffered 

from mental illness. 

This case provides a good illustration why the law requires an offer of proof for 

preservation of a claimed error excluding evidence, unless the substance of the 

excluded evidence is apparent. On the record before us, it is impossible to know 

whether appellant elicited all the information he hoped to elicit from his sister concerning 

his bipolar disorder with his one question about “health issues” and her response, or 

whether, as he asserts on appeal, she was possessed of much more information that 

 4

 Note that while the trial court sustained the State=s objection, it was not asked 

to instruct the jury to disregard the statement, nor did the court do so. The jury was free 

to consider his sister=s statement that appellant had been diagnosed with bipolar 

disorder. See Mines v. State, 888 S.W.2d 816, 817-18 (Tex.Crim.App. 1994) (evidence 

of bipolar disorder is relevant to punishment). 

5 Appellant’s sister did mention family counseling. However, this reference is not 

directly related to her testimony concerning appellant’s bipolar disorder and appellant 

does not attempt to relate it to that testimony. 
6 

would have been helpful to the jury.6 And, assuming his sister could have told the jury 

more about his diagnosed disorder, on the record before us, it is impossible to know 

whether appellant’s counsel made the conscious decision not to pursue the line of 

questioning with her or, as appellant asserts on appeal, desired to put on more 

evidence but considered his doing so “foreclosed” by the sustaining of the State’s 

objection. 

 Appellant contends the substance of the excluded evidence was apparent from 

the context within which the “health issues” question was asked and the response 

given. Appellant cites Fairow v. State, 943 S.W.2d 895, 897 n.2 (Tex.Crim.App. 1997) 

to support this contention, but we find Fairow so distinguishable as not to be helpful to 

appellant. To begin with, in Fairow, the record contained two questions asked by the 

defendant but not answered by the witness because of sustained objections. Id. at 897. 

We do not have the benefit of knowing even what further questions, if any, appellant 

desired to ask his sister. Second, the substance of the excluded testimony in Fairow

was apparent from the context because the record demonstrated the defendant’s 

ultimate aim during the prohibited questioning, which was to introduce into evidence an 

exculpatory statement uttered by a co-conspirator.7 

 6

 Appellant clearly understood how to make an offer of proof because he did so 

during trial with respect to other evidence not at issue in this appeal. 

7 The Court of Criminal Appeals’ opinion, referring to a statement made shortly 

after a shooting, states that the witness “Middleton was going to testify that [the coconspirator] said ‘something’ like ‘I didn’t try to kill him.’” 943 S.W.2d at 897.
7 

The distinctions between the questioning in Fairow and that in the case at bar are 

apparent. The prosecutor’s two objections came after counsel in Fairow asked 

questions but before they were answered. The record is thus clear that the defense 

was attempting to elicit from the witness a statement that the shooting was accidental. 

The same is not true here. The record does not reveal what additional evidence 

appellant would have elicited from his sister, if any. 

 Appellant lastly asserts that an offer of proof was not necessary here because 

the trial court’s ruling amounted to fundamental error. He contends by sustaining the 

State’s “generic” objection to testimony regarding appellant’s bipolar disorder, the trial 

court eliminated his only defensive issue at the punishment stage, resulting in a 

fundamentally unfair trial, in violation of his due process rights. He relies on Blue v. 

State, 41 S.W.3d 129 (Tex.Crim.App. 2000) and Rule of Evidence 103(d). Tex. R. Evid. 

103(d). 

 As we have noted, it is not at all clear that appellant was prevented from 

introducing any evidence by the trial court’s sustaining of the State’s objection following 

his sister’s response that he had been diagnosed with bipolar disorder. His argument 

assumes the court’s ruling indicated appellant was forbidden to inquire further into his 

sister’s knowledge of his medical condition. The record does not support such an 

assumption. In Blue, the Court of Criminal Appeals found the trial court’s improper 

comments in front of the jury panel tainted the defendant’s presumption of innocence. 

41 S.W.3d at 132. Here, the trial court’s sustaining of the State’s objection was in the 
8 

presence of the jury, but we do not agree it carried the sort of taint that made the 

comments in Blue fundamental error requiring no objection. Id. Further, appellant’s 

claims of constitutional violations are not exempt from error preservation rules. See 

Irvan v. State, No. AP-74853, 2006 WL 1545484 (Tex.Crim.App. June 7, 2006) (not 

designated for publication), cert. denied, 549 U.S. 1079, 127 S. Ct. 726, 166 L. Ed. 2d 

565 (2006) (finding similar contention trial court’s exclusion of evidence violated 

constitutional right to present meaningful defense not preserved for appellate review 

when offer of proof not made). 

We overrule appellant=s sole issue on appeal and affirm the judgment of the trial 

court. 

 James T. Campbell 

 Justice 

Do not publish.