Ronald Kent McClelland v. the State of Texas

Affirmed and Memorandum Opinion filed July 25, 2024

In The

Fourteenth Court of Appeals

NO. 14-23-00274-CR

RONALD KENT MCCLELLAND, Appellant
V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 1706247

MEMORANDUM OPINION

Robert Kent McClelland appeals his conviction of murder. His sole issue on
appeal alleges that the trial court excluded three exhibits showing that the
complainant had previously been convicted of assault. Appellant contends that
evidence of these prior convictions was admissible to show that the complainant was
the first aggressor and to correct the false impression that the complainant was
peaceful. The State argues that appellant did not preserve this argument for appeal
because the argument was not raised in the trial court. We therefore must address
whether appellant preserved error for our review. Darcy v. State, 488 S.W.3d 325,
328 (Tex. Crim. App. 2016).

Preservation is a systemic requirement, meaning that a first-tier appellate
court may not reverse a conviction without first addressing any issue of error
preservation. Id. at 327–28. To preserve a complaint of error, the record must
demonstrate appellant made a timely request with enough specificity to make the
trial court aware of the complaint, unless the specific grounds were apparent from
the context. See Tex. R. App. P. 33.1. Furthermore, the argument on appeal must
comport with the specific complaint that appellant timely lodged in the trial court.
Penton v. State, 489 S.W.3d 578, 580 (Tex. App.—Houston [14th Dist.] 2016, pet.
ref’d); see also Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009).
Appellant must have conveyed to the trial court the particular argument raised on
appeal, including the precise and proper application of law as well as the underlying
rationale. Fish v. State, 609 S.W.3d 170, 178 (Tex. App.—Houston [14th Dist.]
2020, pet. ref’d).

At trial, outside the presence of the jury, appellant discussed his belief that the
State’s witness opened the door to the complainant’s criminal history by referencing
the complainant as a peacemaker. The trial court determined that the evidence
presented by the State’s witness was a “fact statement” about the situation that did
not open the door. Appellant did not attempt to offer the exhibits concerning the
complainant’s prior convictions at this time. The jury returned and the State called
its final witness. At the conclusion of the witness’ testimony, appellant offered three
exhibits evidencing the complainant’s prior convictions for assault. The following
exchange occurred:

[DEFENSE COUNSEL]: Thank you, Judge. I believe that [the
complainant] has three prior criminal convictions that would be
admissible, and at this point all three are for domestic assault, which is
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a crime of moral turpitude.
THE COURT: Do you want to mark them and put them into evidence
for the purposes of appeal?
[DEFENSE COUNSEL]: Well, first I was going to inquire if you were
going to allow me to admit these in, certified copies from the clerk’s
record.
THE COURT: No, I’m not.
[DEFENSE COUNSEL]: Okay. Then I’m just offering them for the
purposes of appeal.
THE COURT: Okay. So that motion is denied.
[DEFENSE COUNSEL]: These are going to be Defense 2, 3, and 4,
certified judgments of criminal convictions of assault family member
of the deceased. . . .
THE COURT: They’re admitted for purposes of appeal, not to be given
to the jury obviously.
Our review of the record indicates that appellant failed to attempt to explain
to the trial court (as he attempts to explain on appeal) that the exhibits were
admissible to show that the complainant was the first aggressor or to correct the false
impression that the complainant was peaceful. When appellant offered the exhibits,
he expressed that the prior convictions were crimes of moral turpitude. At no point
did appellant argue that the evidence of the complainant’s prior convictions was
admissible to show that the complainant was the first aggressor or to correct the false
impression of the complainant’s trait of peacefulness. Appellant’s complaint on
appeal, therefore, does not comport with the specific complaint he lodged in the trial
court. Pena, 285 S.W.3d at 464; Penton, 489 S.W.3d at 580. When the purpose of
the proffered evidence is not apparent from the context of the questions asked, we
cannot assume that appellant presented his complaint to the trial court with sufficient
specificity. See Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009); Tex.
R. Evid. 103(a)(2). Without appellant preserving error for our review, we may not

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reverse his sentence. See Darcy, 488 S.W.3d at 328. Accordingly, appellant’s sole
issue is overruled, and we affirm the trial court’s judgment.

/s/ Frances Bourliot
Justice

Panel consists of Justices Jewell, Bourliot, and Poissant.
Do Not Publish — TEX. R. APP. P. 47.2(b).

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