Opinion issued May 24, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00974-CR

MELCHOR MALDONADO ARZATE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1086251

MEMORANDUM OPINION

A jury found appellant guilty of committing the offense of aggravated sexual assault ⁽¹⁾ against J.A., appellant's six-year-old daughter, and assessed his punishment at 60 years in prison. In one point of error, appellant complains that the trial court violated his state and federal constitutional right of confrontation when it limited his cross-examination of J.A. at trial.

We affirm.

In December 2004, J.A.'s mother and appellant separated. After the separation, J.A. and her older brother lived with appellant, but they would visit their mother on the weekends. One weekend in December 2005, J.A. told her mother that she did not want to return to her father's home. When asked why, J.A. refused to tell her mother the reason. J.A.'s mother asked her roommate, Luby, to speak with J.A. J.A. told Luby that appellant had been "touching her private parts."

At trial, appellant asked J.A. why Luby was no longer living with J.A.'s mother. The State made a relevancy objection, which was sustained by the trial court. The following exchange then took place between the defense and the trial court:

[Defense]: Your Honor, this question is relevant because it shows the state of mind of the little kid at the time, and it also shows her influence and it goes towards credibility.

THE COURT: What are you expecting her to say?

[Defense]: I don't know exactly.

THE COURT: Well, then you don't know if it's relevant or not. Unless there's something very special that would come in, the fact that they don't live together anymore is not relevant. And if you don't know what it is, you don't have any way of knowing whether it is relevant.

[Defense]: I don't know exactly what the child is going to say, but I do know that she's not living--

THE COURT: Sustained.

In his sole issue, appellant contends that the trial court violated his federal and state constitutional right to confront and cross-examine his accuser, J.A., when it sustained the State's relevancy objection to appellant's question regarding why Luby no longer lived with J.A.'s mother.

We agree with the State that appellant has failed to preserve this point of error for our review. At trial, appellant offered an evidentiary argument to support his assertion that he had a right to cross-examine J.A. regarding why Luby no longer lived with J.A.'s mother. Specifically, appellant argued that such cross-examination would elicit relevant evidence. Appellant did not assert that his federal or state constitutional rights of confrontation demanded that he be allowed to cross-examine J.A. on this issue.

"When a defendant's objection encompasses complaints under both the Texas Rules of Evidence and the Confrontation Clause, the objection is not sufficiently specific to preserve error." Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005). Such an objection does not satisfy the party's burden to do "everything necessary to bring to the judge's attention the evidence, rule or statute in question and its precise and proper application to the evidence in question." Id. Thus, an evidentiary objection does not preserve a Confrontation Clause objection. See id. The same rationale applies to a proffer of evidence as an objection to evidence. Id. Here, appellant was required to "clearly articulate" that his right of confrontation demanded that he be allowed to cross-examine J.A. regarding why Luby no longer lives with her mother. See id. Appellant did not assert in the trial court that his federal or state rights of confrontation demanded that he be allowed to cross-examine J.A. on the contested point. As a result, appellant has failed to preserve his complaint. See Tex. R. App. P. 33.1; Reyna, 168 S.W.3d at 179.

We overrule appellant's sole point of error.

Laura Carter Higley

Justice

Panel consists of Chief Justice Radack and Justice Keyes, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).

1.See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2006).