### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-03-00286-CR

Richard Joseph Novillo, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT

NO. 54,118, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appellant Richard J oseph Novillo was convicted by a jury for the offense of

aggravated assault with a deadly weapon. S ee Tex. Pen. Code Ann. § 22.02 (West Supp. 2004). The

district court assessed punishment and sentenced appellant to twenty years’ confinement and a fine

o f $10,000. Appellant contends that the district court erred by excluding evidence relating to his

strained marital relationship with the victim because that evidence was probative of his state of mind

and motivation at the time of his actions. We will affirm the judgment of conviction.

BACKGROUND

Appellant does not contest that on November 1, 2002, he stabbed Amy Grider, his

common-law wife, with a pair of scissors. Grider ran to a nearby police station, and appellant was

subsequently arrested.2 In a motion in limine, the State moved t o prevent appellant from exploring the

strained marital relationship between appellant and the victim at trial. The district court granted the

motion, and appe llant agreed to approach the bench before raising any such issues during trial.

During trial, appellant three times requested permission to question the State’s witnesses about the

relationship. Each time, the district court denied the request. At no time did appellant make an offer

of proof as to what kind of evidence he hoped to obtain from the witnesses, nor did he contend that

the eviden ce would implicate a defense. Appellant was convicted and sentenced by a jury. This

appeal followed.

DISCUSSION

In his sole point of error, appellant contends that the district court erred by excluding

evidence relating to his troubled marital relationship wit h his common-law wife because that

evidence was probative of his state of mind and motivation for his actions. To preserve a complaint

that the trial court erroneously excluded evidence, the complaining party must bring forward a record

indicating the nature of the evidence. S ee Tex. R. App. P. 33.1, .2; Tex. R. Evid. 103(a)(2). If the

excluded evidence is not apparent from the context of the record, it must be brought forward either

throug h a timely offer of proof or a formal bill of exception. G uidry v. State

, 9 S.W.3d 133, 153

(T ex. Crim. App. 1999). Absent a showing of what such testimony would have been, nothing is

presented for review. Id. Although appellant sought to introduce the evidence three times, he did

not make an offer of proof regarding what the witnesses would say about the couple’s relationship,

how that would affect his defense, or how it would assist the jury in its deliberations. Accordingly,3

because appellant made no offer of proof at the time of his objections, appellant waived his right to

appeal this issue. See id.

In the interest of justice, however, the Court will address the merits of appellant’s

argument. Preliminary questions concerning admissibility of evidence are determined by the trial

court. Tex. R. Evid. 104(a). Such determinations will not be overturned absent a clear abuse of

discretion. Angleton v. State , 971 S.W.2d 65, 67 (Tex. Crim. App. 1998). The trial court’s ruling

will be upheld as long as it was within the “zone of reasonable disagreement.” W eatherred v. State

,

15 S.W.3d 540, 542 (Tex. Crim. App. 2000).

Evidence th at is not relevant is not admissible. Tex. R. Evid. 402. Evidence is

relevant if it h as “any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the evidence.”

Tex. R. Evid. 401. In determining whether evidence is relevant, courts look to the purpose for

offering the evidence and whether there is a direct or logical connection between the offered

evidence and the proposition sought to be proved. R eed v. State

, 59 S.W.3d 278, 281 (Tex.

App.—Fort Worth 2001, pet. ref’d). A trial court may nevertheless exclude relevant evidence if its

probative value is substantially outweig hed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue delay or needless presentation of cumulative

evidence. Tex. R. Evid. 403.

In t his case, the State filed a motion in limine to exclude evidence concerning

appellant’s contentious relationship with the vi ctim. A motion in limine is a method of objecting

to an area of inquiry prior to the matter reaching the jury. S ee Rawlings v. State , 874 S.W.2d 740,4

742 (Tex. App.—Fort Worth 1994, no pet.). The district court granted the State’s motion, and both

parties agreed that appellant would approach the bench prior to inquiring into the subject and that

the court would determine admissibility outside the jury’s presence.

A granted motion in limine does not preserve e rror. Martinez v. State , 98 S.W.3d

189, 193 (Tex. Crim. App. 2003). The complaining party must offer evidence at trial and secure an

adverse ruling from the court to preserve error for appeal. Tex. R. App. P. 33.1(a)(1)(A). During

trial, the district court denied appellant’s requests to cross-examine witnesses concerning his

relationship with the victim. Appellant argues that evidence of Grider’s relationship with another

man and Grider’s and the other man’s alleged drug use should have been allowed. Appellant argues

that because his conduct was intentional and knowing, rather than reckless or negligent, he should

have been allowed to explain his motivation to cause serious bodily harm by stabbing Grider.

As sole support for this proposition, appellant cites Field v. State

, 966 S.W.2d 736,

739 (Tex. App.—San Antonio 1998), rev’d on other grounds

, 1 S.W.3d 687 (Tex. Crim. App. 1999).

Section 6.03 of the Texas Penal Code includes three conduct elements: (1) the nature of the conduct,

(2) the result of the conduct, and (3) the circumstances surrounding the conduct. Tex. Pen. Code

An n. § 6.03 (West 2003); F ield

, 966 S.W.2d at 739. Appellant interprets F ield as allowing the

introduction of evidence regarding “the circumstances surrounding the conduct” and argues that “a

liberal interpretation of the term ‘the circumstances surrounding the conduct’ would include events

or elements which caused the appellant’s attitude and conduct to deviate from the normal.” Field

,

however, stands for no such proposition. Rather, F ield plainly states that “Texas courts require that,

in the judge’s charge to the jury, the ‘intentional’ and ‘knowing’ requirements be confi n ed to the5

specific conduct element required to prove the alleged offense .” F ield

, 966 S.W.2d at 739 (emphasis

added) (citing Ash v. State , 930 S.W.2d 192, 194 (Tex. App.—Dallas 1996, no pet.)).

The court of criminal appeals has explained the function of the “conduct elements”

as follows:

An offense may contain any one or more of these “conduct elements” which alone

or in co mbination form the overall behavior which the Legislature has intended to

criminalize, and it is those essential “conduct elements” to which a culpable mental

s tate must apply. S ee [Tex. Pen. Code Ann. § 6.03]. For example, where specific

acts are criminalized because of their very nature, a culpable mental state must apply

to committing the act itself. S ee, e.g.

, [Tex. Pen. Code Ann.], Chapter 47 (gambling

offenses). On the other hand, unspecified conduct that is criminalized because of its

result requires culpability as to that result. [ A lvarado v. S tate , 704 S.W.2d 36, 39

(Tex. Crim. App. 1985)] (injury to a child); [ Lugo-Lugo v. State

, 650 S.W.2d 72, 81

(Tex. Crim. App. 1983)] (murder); Kelly v. State

, 748 S.W.2d 236 (Tex. Crim. App.

1988) (injury to an elderly individual). Likewise, where otherwise innocent behavior

becomes criminal because of the circumstances under which it is done, a culpable

mental state is required as to those surrounding circumstances. M cClain v. State

, 687

S.W.2d 350 (Tex. Crim. App. 1985) (theft).

McQueen v. State

, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989) (holding culpable mental state of

“knowingly” applied to “ circumstances surrounding the conduct” in crime of unauthorized use of

motor vehicle).

An assault becomes an “aggravated assau lt” if serious bodily injury results or if a

deadly weapon is used or exhibited du ring the commission of the assault. Tex. Pen. Code Ann.

§ 22.02 (West Supp. 2004). Because the only conduct elements potentially implicated for the crime

of aggravated assault are “the nature of the conduct” and “the result of the conduct,” the

“circumstances surrounding the conduct” are not relevant. S ee McQueen

, 781 S.W.2d at 603. We6

therefore reject appellant’s assertion that the district court was required to admit evidence regarding

the “circumstances surrounding the conduct.”

The trial court was well within its discretion to deny these request s because

appellant’s state of mind and motivation for the assault were irrelevant to his culpability for the

crime of aggravated assault. Notably, appellant did not argue at trial, nor does he argue now, that

the evidence related to a specific defense. Because the evidence was not relevant, and because the

district court was not required to admit evidence regarding the “circumstances surrounding the

conduct,” the district court did not abuse its discretion in excluding it.

CONCLUSION

Having overruled appellant’s sole issue, we affirm the judgment of conviction.

Mack Kidd, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: June 10, 2004

Do Not Publish