1... See Tex. R. App. P. 47.4.

2... See Tex. Penal Code Ann. § 22.02(a) (Vernon Supp. 2008).

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-08-227-CR

DERRICK D. KING APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellant Derrick D. King appeals his conviction for aggravated assault.2

In a single point of error, he complains that the trial court “erroneously

dissuaded” him from impeaching a witness. We affirm.

Leon MacNeil and Joe Conner testifed that appellant shot MacNeil in the

leg. MacNeil testified that he did not use any illegal drugs on the day he was
3... Tex. R. App. P. 33.1(a)(2); Fuller v. State, 253 S.W.3d 220, 232

(Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 904 (2009).

2

shot. Before Conner took the stand, however, he privately disclosed to the

prosecutor that he had seen MacNeil and appellant smoking crack cocaine

together on the day of the shooting. The prosecutor promptly disclosed this

information to appellant’s trial attorney.

During a subsequent bench conference, the attorneys and the trial judge

discussed whether asking Conner about MacNeil’s drug use on the day of the

shooting would open the door to extraneous offense evidence that appellant

was using drugs with MacNeil, and the trial judge stated that it “might.”

Appellant’s trial attorney then objected to the admission of any testimony that

appellant was using illegal drugs on the day of the shooting. Although the trial

judge initially sustained the objection, she stated, “I’m going to treat it as a

motion in limine for you-all to approach and me to take up the ruling at that

time after I hear the evidence.”

Conner later testified on direct and cross examination. Appellant’s trial

attorney did not ask him about MacNeil’s drug use, nor did he ask to approach

the bench to obtain a ruling on the admissibility of such testimony.

To preserve error for appellate review, a party must obtain an adverse

ruling by the trial court.

3 Nothing is preserved until the trial court makes a final
4... See Wilson v. State, 7 S.W.3d 136, 144 (Tex. Crim. App. 1999)

(“The trial court’s action appears to be in the nature of a ruling on a motion in

limine, which does not preserve error.”); see also Powell v. State, 897 S.W.2d

307, 310 (Tex. Crim. App. 1994), cert. denied, 516 U.S. 808 (1995)

(defendant failed to preserve complaint that jury should have been shuffled

when he failed to obtain final ruling on his request), overruled on other grounds,

Prystash v. State, 3 S.W.3d 522 (Tex. Crim. App. 1999), cert. denied, 529

U.S. 1102 (2000).

5... See Tex. R. App. P. 33.1(a)(1)(A).

3

ruling on the admissibility of evidence.4 Because appellant did not re-urge his

argument to the trial court or attempt to ask Conner the question which he now

says the trial court “dissuaded” him from asking, he did not secure an adverse

ruling from the trial court. We therefore hold that appellant has forfeited his

complaint.5 Accordingly, we overrule appellant’s sole point and affirm the trial

court’s judgment. 

PER CURIAM

PANEL: CAYCE, C.J.; WALKER and MCCOY, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: August 13, 2009