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Tex. R. Crim. Evid. 103(a)(2) provides that error may not be predicated upon a ruling which excludes evidence unless a substantial right of a party is affected and the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which questions were asked. An offer of proof may be in question-and-answer form, or it may be in the form of a concise statement by counsel. An offer of proof to be accomplished by counsel's concise statement must include a reasonably specific summary of the evidence offered and must state the relevance of the evidence unless the relevance is apparent, so that the court can determine whether the evidence is relevant and admissible.
In July 1994, the Travis County Grand Jury indicted appellant, Michael Warner, for the felony offenses of aggravated kidnapping, aggravated assault, and arson. Appellant explained to the trial court that he intended to offer evidence at the guilt/innocence stage that he had been a veteran of the Vietnam War, that he suffered from "post-traumatic stress disorder" (PTSD), and that he had received counseling for that disorder. Warner, citing Cowles v. State, 510 S.W.2d 608 (Tex.Crim.App. 1974), argued that such evidence was admissible to prove that he had not had the specific intent necessary to commit the offenses of aggravated kidnapping and arson. Warner did not, however, define "post-traumatic stress disorder" for the court or explain how he intended to prove that he suffered from the disorder. Warner also did not explain how evidence of PTSD would be relevant to the question of specific intent. In response to Warner’s arguments, the State, citing argued that evidence of Warner’s alleged PTSD was inadmissible under Texas law. Warner was convicted aggravated kidnapping, aggravated assault, and arson. Warner sought review of his convictions arguing that it was error for the lower court to have excluded evidence of Warner’s alleged post-traumatic stress disorder at the guilt/innocence stage of his trial.
Did the trial court err in excluding evidence of Warner’s alleged PTSD at the guilt/innocence stage of his trial?
Warner’s petition for review was dismissed. In support of its ruling, the court held that Tex. R. Crim. Evid. 103(a)(2) provided that error many not be predicated upon a ruling that excluded evidence unless a substantial right of a party was affected and the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which questions were asked. With respect to the instant case, the court noted that Warner did not make the requisite offer of proof before or during the guilt/innocence stage of his trial. Accordingly, the court found that appellant failed to preserve the error for review.