# Green v. State

> Court of Criminal Appeals of Texas · March 4, 1987 · 727 S.W.2d 272

URL: https://www.frixlaw.com/law-library/cases/9771555

## Case

- **Full name:** Gary William GREEN, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** March 4, 1987
- **Citations:** 727 S.W.2d 272; 1987 Tex. Crim. App. LEXIS 530
- **Precedential status:** Published
- **Opinion:** Concurrence by Clinton
- **Judges:** Duncan, Clinton, McCormick, Onion, Davis, White
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9771555

## Opinion text

CLINTON, Judge,
concurring.
In my judgment the issue in this cause does not implicate Article 36.20, V.A.C. C.P., at all. The authorities cited in the opinion of the San Antonio Court of Appeals relied on by the dissent addressed a purported “formal” bill of exception drawn by defendant and signed by judge of the trial court to base claimed error on appeal or, as in Garza v. State, 622 S.W.2d 85 (Tex.Cr.App.1981), “to have the record disclose some action [et cetera] not otherwise shown by the record.” Article 40.09, § 6(a). Id.
What occurred here was pursuant to Article 40.09, § 6(d)(1), in that the trial court allowed appellant to make “an offer of proof in the form of a concise statement ... of what the excluded evidence would show,” so that when transcribed by the court reporter and made a part of the record, “such an offer of proof ... shall be accepted as establishing what such excluded testimony.... would have consisted of had it been admitted into evidence.” 1
Well aware that the dissent is mainly contending that the “ ‘bill of exception’ wholly fails to set forth what appellant’s objection was,” for purposes of discretionary review of the decision of the Houston (14th) Court of Appeals we would do it an injustice if we rejected its express finding basing that decision, viz:
“In this third [ground] he alleges that the trial court erred in not permitting him to call additional character witnesses. Two witnesses testified as to appellant’s reputation for being a peaceful and law-abiding citizen. He tried to present the testimony of two additional character witnesses (one being his pastor), but this was denied by the trial court.”
This Court reviews decisions of courts of appeals. In so doing it is not our function to undermine their understanding of the record, including briefs of the parties, and of oral argument presented on original submission. The matter is here for review, not for consideration as if on direct appeal.
Because I am satisfied the decision below is correct and that this Court reaches the right conclusion, I join the judgment of affirmance.
. A simpler statement of the same procedure is in Tex.R.Cr.Evid.Rule 103(a)(2). A similar provision for an offer of proof is in Tex.R.App.Pro. Rule 52(b), and the placement of that method ahead of any other reflects a preference for it. Notice also that when the procedure for an offer of proof is followed, the latter rule further provides, "No formal bills of exception shall be needed to authorize appellate review of the question whether the court erred in excluding the evidence." (All emphasis is mine throughout unless otherwise indicated.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9771555. Public record. Not legal advice.