Brendan Gerad Quirk v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-24-00436-CR
___________________________

BRENDAN GERAD QUIRK, Appellant

V.

THE STATE OF TEXAS

On Appeal from County Criminal Court No. 6
Tarrant County, Texas
Trial Court No. 1796366

Before Sudderth, C.J.; Wallach and Walker, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION

Appellant Brendan Gerad Quirk challenges his conviction for assault causing

bodily injury of Ashley, a family member. 1 See Tex. Penal Code Ann. § 22.01(a)(1).

During trial in Tarrant County, the prosecution called two officers from the Dallas

Police Department to testify about each officer’s experience responding to a call

reporting violence between Quirk and Ashley. Before the officers testified, Quirk

requested a hearing outside the jury’s presence “to determine [the] admissibility” of

their testimony. Each officer testified during the hearing that in preparation for his

testimony that day, he had reviewed his bodycam video from the incident. Quirk

objected to the officers’ testimony, arguing among other grounds 2 that the

prosecution had not produced the bodycam videos to the defense. Quirk’s attorney

argued that the prosecution’s failure to produce the videos violated Texas Code of

Criminal Procedure Article 39.14 and that the appropriate remedy for the violation

was to exclude the officers’ testimony. The trial court overruled the objection.

On appeal, Quirk argues in two issues that “[t]he State . . . committed reversible

error by failing to produce material evidence” and that the trial court reversibly erred

1
We use an alias to protect the complainant’s identity. See Tex. R. App. P.
9.8 cmt.; McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.]
1982).
2
Quirk also objected based on the Sixth Amendment to the United States
Constitution, hearsay, and Texas Rule of Evidence 403.

2
by admitting the officers’ testimony. Because Quirk did not preserve his complaints,

we will affirm.

Background

Quirk does not challenge the sufficiency of the evidence to sustain his

conviction, so we limit our discussion of the trial proceedings to the parts relevant to

his issues. See Hance v. State, 714 S.W.3d 775, 789 n.3 (Tex. App.—Fort Worth 2025,

no pet.) (op. on reh’g).

Quirk filed a motion for discovery in June 2024, requesting among other things

a list of the prosecution’s trial witnesses. The trial court granted the request, and the

prosecutor filed a witness list that did not include the Dallas officers but included

“[a]ny and all persons named or referenced in any document provided to or made

available to the Defendant by the State.” The State subsequently provided to defense

counsel the Dallas officers’ offense reports. On the evening of November 4, 2024, the

State filed an application for a subpoena for each Dallas officer, and on the following

day, it filed a supplemental witness list naming the Dallas officers as possible

witnesses. Jury voir dire began the next day, November 6.

At a hearing before voir dire, Quirk objected “due to undue surprise” to the

Dallas officers’ testifying, arguing that they had not been timely disclosed as witnesses.

The prosecutor responded that the State had provided the offense reports for those

incidents to defense counsel in July 2024; that in August, the State had provided a

notice of extraneous offenses that included the offenses for which the Dallas officers

3
were being called to testify; and that the defense thus should not have been surprised

by the State’s calling the officers as witnesses. The trial court overruled Quirk’s

objection but stated that Quirk could take the witnesses on voir dire prior to their

testimony. Quirk did not request a continuance.

Trial testimony began the next day. Before the Dallas officers testified, Quirk’s

attorney asked to take the officers on voir dire. After the officers’ voir dire testimony

referencing the bodycam videos, Quirk’s attorney argued that he had “a few issues”

with their testifying, including the fact that the bodycam videos had not been

provided to him by the prosecution. He argued that the officers would be “testifying

based on information that [he had] not seen and [that] . . . ha[d] not been provided

from the State,” despite their being in “continuous possession of the State,” which

had an “obligation to provide them.” He asserted that any testimony by the officers

would be “tainted with evidence that’s not been properly disclosed by the State.”

The prosecutor responded that the videos were “not in our possession nor

would it be in the control of the State as it is applied through [the Court of Criminal

Appeals’ recent opinion in State v.] Heath,” which discussed the State’s obligation

under Article 39.14 to produce evidence to the defense. See Tex. Code Crim. Proc.

Ann. art. 39.14 (providing that on defendant’s request, the State must produce

reports, documents, and witness statements, including witness statements of law

enforcement officers, and “other tangible things not otherwise privileged” that

constitute evidence material to a matter in the action and that “are in the possession,

4
custody, or control of the [S]tate or any person under contract with the [S]tate”); State

v. Heath, 696 S.W.3d 677, 693 (Tex. Crim. App. 2024) (holding that “the [S]tate” in

Article 39.14 encompasses law enforcement). Referencing Heath’s footnote 102, 3 the

prosecutor compared the situation to one in which the State calls out-of-state

witnesses to testify. Finally, the prosecutor asked that if the trial court believed that

Article 39.14 applied to the bodycam footage, then “the remedy be a limiting

instruction to . . . say that the jury is allowed to consider that there is a lack of body

camera [video].”

Quirk’s attorney disagreed that Dallas County was comparable to a separate

state, argued that the prosecution’s failure to produce the videos violated Article

39.14, and asserted that under Watkins, “the only true remedy” was excluding the

Dallas officers’ testimony. See Watkins v. State, 619 S.W.3d 265, 271–91 (Tex. Crim.

App. 2021) (discussing meaning of phrase “material to any matter involved in the

action” in Article 39.14). He concluded, “I don’t see how these officers can testify,

particularly given that they’re basing their testimony on something that has been

withheld . . . from us by the State.”

The prosecutor responded that Quirk had access to the same police report that

the State had, that the report mentioned the bodycam videos, and that Quirk

696 S.W.3d at 699 n.102 (stating that “[f]or purposes of Brady [v. Maryland,
3

373 U.S. 83, 87, 83 S. Ct. 1194 (1963)],” “‘the State’ includes, in addition to the
prosecutor, other lawyers and employees in his office and members of law
enforcement connected to the investigation and prosecution of the case’” (emphasis added)).

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nevertheless had not included the videos in his discovery request. Thus, the

prosecution “complied with their request under [Article] 39.14.”

After reading Heath, the trial court ruled that the officers could testify but could

not testify about anything “observed in the body[ ]cam [videos] or any reference to

the body[ ]cam [videos] whatsoever” or anything about what the complainant had said

to them. The trial court stated, “So the officers’ testimony will be limited to their

observations, the reason for the call, [and] anything that they observed or discovered

in their investigation that did not come from any statements made by the injured

party.” The trial court then asked if there was “anything else Defense needed a ruling

on,” and Quirk’s attorney expressed his concern that there was no way for him to

know or verify what information in the officers’ testimony would be drawn from the

bodycam videos. To that, the trial court reiterated its ruling that the officers could

“testify from their own recollection as well as what they have ascertained from

reviewing their police reports [that] have been supplied to the Defense by the State.”

The court further stated, “If there is an objection to be made and we need to go

outside the presence of the jury to clarify, I’m happy to do that.” Such exchange never

occurred.

Quirk then requested that a limiting instruction be given before the officers’

testimony, and the trial court granted that request. Quirk did not at any point ask for a

continuance so that the bodycam videos could be obtained and reviewed. The trial

resumed, and both Dallas officers testified without further objection or a request by

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Quirk’s counsel for a hearing outside the jury’s presence. The Grapevine police

officers who had responded to Ashley’s 911 call that led to the assault charge in this

case also testified.

Ashley testified in his defense. Quirk’s defense was that Ashley had repeatedly

lied to police because of a mental health condition, and Ashley testified accordingly.

In other words, Quirk’s defense—and Ashley’s testimony—was that her mental

health condition made her untruthful (and that for one of the Dallas incidents, she

was drunk) and that her words thus could not be trusted. In line with that defense,

she did not deny telling the Dallas officers or the Grapevine officers who responded

to her 911 call giving rise to the instant charge that Quirk had assaulted her, although

she claimed to have no memory some of it. Her testimony was simply that Quirk had

never assaulted her regardless of what she had told the Dallas officers, the Grapevine

officers, or the other Grapevine officers who had responded to a previous call

involving the couple.

The jury found Quirk guilty, and the trial court made an affirmative finding of

family violence and assessed Quirk’s punishment at 180 days’ confinement in the

Tarrant County Jail and a $2,000 fine.

Discussion

I. Arguments in Quirk’s Original Brief

In Quirk’s first issue, he argues that the State “committed reversible error by

failing to produce material evidence (police body worn camera videos . . . from two

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extraneous offenses) that were in the possession, custody, and control of the State in

violation” of Heath, Watkins, and Article 39.14. In his second issue, he asserts that the

trial court committed reversible error by admitting the testimony of the Dallas police

officers “that: (1) were not timely included in the State’s pretrial disclosures, and

(2) refreshed their memories prior to testifying with the same [bodycam] videos that

the State failed to produce.” He argues that the State’s failure to produce the bodycam

videos prevented him “from effectively preparing a defense to the State’s trial and

punishment strategy, cross[-]examinations, and impeaching or rebutting the Dallas

[o]fficers’ testimony” and that the trial court’s error in allowing the officers’ testimony

requires reversal and a new trial. In summary, he argues that the trial court reversibly

erred by admitting the officers’ testimony when they had not been timely disclosed as

witnesses and when their testimony may have been based in part on bodycam videos

that the prosecution had failed to produce in violation of Article 39.14.

When the State fails to produce evidence it is required to produce under Article

39.14 and the trial court denies the defendant’s request to exclude the evidence or to

dismiss the indictment, the defendant does not preserve that complaint for appellate

review unless the defendant seeks a continuance. See Derrough v. State, No. 02-24-

00281-CR, 2025 WL 1774761, at *9 (Tex. App.—Fort Worth June 26, 2025, no pet.)

(mem. op., not designated for publication) (stating that “[t]o preserve error regarding

the State’s violation of Article 39.14,” a defendant must request a continuance); see also

Cadena v. State, No. 11-22-00225-CR, 2023 WL 8459093, at *5 (Tex. App.—Eastland

8
Dec. 7, 2023, no pet.) (mem. op., not designated for publication) (holding appellant

had not preserved complaint about trial court’s overruling his objection to late-

disclosed evidence because he had not requested a continuance); Rodriguez v. State,

630 S.W.3d 522, 524 (Tex. App.—Waco 2021, no pet.) (rejecting defendant’s

argument that Article 39.14 violation “had a material effect on her trial strategy and

thereby deprived her of due process” when she did not request a continuance); Byrd v.

State, No. 02-15-00288-CR, 2017 WL 817147, at *4 (Tex. App.—Fort Worth Mar. 2,

2017, pet. ref’d) (mem. op., not designated for publication) (holding that requesting a

continuance would have allowed defendant to avoid claimed prejudice and

impairment of his defense from late disclosure of records); cf. Tex. Code Crim. Proc.

Ann. art. 29.13 (providing that trial court may grant continuance after trial begins if it

determines that “by some unexpected occurrence since trial began, which no

reasonable diligence could have anticipated, the applicant is so taken by surprise that a

fair trial cannot be had”).

Here, Quirk’s attorney objected to the Dallas officers’ testimony “due to

surprise” because they had not been timely disclosed as witnesses. The next day, he

objected that he had not received the bodycam videos and argued, “I’m not going to

know what these officers are pulling from their review of the body[ ]cam [videos] that

they have already done today versus what they are just pulling from their report that

we have had access to.” His concerns could have been addressed by seeking a

continuance. See Ruffins v. State, 691 S.W.3d 166, 186–87 (Tex. App.—Austin 2024, no

9
pet.); see also Schard v. State, No. 09-16-00291-CR, 2018 WL 1630891, at *8 (Tex.

App.—Beaumont Apr. 4, 2018, no pet.) (mem. op., not designated for publication)

(noting that trial judge had sent an order to hospital mid-trial to require production of

records and had recessed proceedings to give defendant opportunity to review the

records before nurse’s testimony). Quirk did not request that relief. Accordingly, he

has not preserved his complaints that the officers’ testimony should have been

excluded on the basis that the bodycam videos were not provided and that the

officers had not been timely disclosed as witnesses.

II. Quirk’s Reply Brief Argument

The State’s brief pointed out Quirk’s failure to seek a continuance. In response,

Quirk filed a reply brief making two arguments. First, he contends that a motion for

continuance “is only necessary as a result of the State’s belated disclosure of evidence

to be used at trial or the State’s offer of undisclosed evidence at trial,” and neither

situation occurred in this case because the State never offered the videos or disclosed

them as evidence to be used during trial. He argues that because the State “never

intended to use or disclose the [bodycam] videos at trial and has continuously argued

that the State has no duty to provide” the videos, a motion for continuance “was

useless and unnecessary.”

We disagree. In the trial court, Quirk complained that the Dallas officers’

testimony—which the State did intend to use—would be based in part on the

bodycam videos that he had not seen despite the State’s duty to produce them under

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Article 39.14. He argued that without seeing the bodycam videos, he could not know

what part of their testimony would be derived from those videos, and his original

brief argued that the State’s failure to produce them prevented him “from effectively

preparing a defense to the State’s trial and punishment strategy, cross examinations,

and impeaching or rebutting” the Dallas officers’ testimony. These Article

39.14-based issues could have been cured by the production of the videos during a

continuance. Thus, to preserve an objection based on Article 39.14, Quirk was

required to request a continuance. See Derrough, 2025 WL 1774761, at *9; see also

Ruffins, 691 S.W.3d at 186–87; Rodriguez, 630 S.W.3d at 524.

Quirk’s second reply brief argument is that the State had also been required to

produce the bodycam videos under Texas Rule of Evidence 612 and that he did not

need to seek a continuance to preserve a complaint based on that rule.

Under Rule 612, “when a witness uses a writing to refresh memory” before

testifying, the adverse party “is entitled to have the writing produced at the hearing, to

inspect it, [and] to cross-examine the witness about it.” Tex. R. Evid. 612(a), (b). “If

the producing party”—here the State—“claims that the writing includes unrelated

matter, the court must examine the writing in camera, delete any unrelated portion,

and order that the rest be delivered to the adverse party.” Tex. R. Evid. 612(b).

Generally, if the writing “is not produced or is not delivered as ordered, the court may

issue any appropriate order,” but in a criminal case, “if the prosecution does not

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comply,” then the trial court “must strike the witness’s testimony or—if justice so

requires—declare a mistrial.” Tex. R. Evid. 612(c).

Quirk’s new argument faces two hurdles. First, he did not raise a Rule

612 complaint in his original brief. See Chambers v. State, 580 S.W.3d 149, 161 (Tex.

Crim. App. 2019) (“[N]ew issues raised in a reply brief should not be considered.”).

Although he mentioned in his brief that the Dallas officers had used the bodycam

videos to refresh their memories, he never mentioned Rule 612 and did not cite any

case applying that rule. Second, even if we were to consider his new Rule

612 argument to be sufficiently related to his original brief issues such that we could

consider it, he did not preserve this complaint below. See Tex. R. App. P. 33.1; Tex. R.

Evid. 103(a).

To preserve a complaint for our review, a party must have presented to the trial

court a timely request, objection, or motion sufficiently stating the specific grounds, if

not apparent from the context, for the desired ruling. Montelongo v. State, 623 S.W.3d

819, 822 (Tex. Crim. App. 2021); Silva v. State, Nos. 14-23-00324-CR,

14-23-00325-CR, 2024 WL 3507508, at *1 (Tex. App.—Houston [14th Dist.] July 23,

2024, no pet.) (mem. op., not designated for publication) (noting that to preserve a

complaint, party must state the specific factual and legal basis for the ruling that the

party seeks); see Tex. R. App. P. 33.1. “[T]he complaining party bears the responsibility

of clearly conveying to the trial judge the party’s particular complaint, the precise and

proper application of law, as well as the underlying rationale.” De La Cerda v. State,

12
No. 14-22-00471-CR, 2023 WL 7401512, at *2 (Tex. App.—Houston [14th Dist.]

Nov. 9, 2023, no pet.) (mem. op., not designated for publication) (citing Pena v. State,

285 S.W.3d 459, 464 (Tex. Crim. App. 2009)). “As a general rule, an appellate court

reviewing a trial court’s ruling on the admission or exclusion of evidence must do so

in light of the arguments, information, and evidence that was available to the trial

court at the time it ruled.” Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003)

(holding court of appeals erred in considering arguments appellant made for first time

on appeal).

No “specific words or technical considerations” are required to preserve a

complaint; a party who has “let the trial court know what he wants and why he feels

himself entitled to it clearly enough for the judge to understand him” has satisfied

preservation requirements. Vasquez v. State, 483 S.W.3d 550, 554 (Tex. Crim. App.

2016). “But, a general or imprecise objection will not preserve error for appeal unless

‘the legal basis for the objection is obvious to the court and to opposing counsel.’” Id.

(quoting Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006)). “‘Usually, for

a complaint to be obvious,’ there will ‘have been statements or actions on the record

that clearly indicate what the judge and opposing counsel understood the argument to

be.’” Ex parte Nuncio, 662 S.W.3d 903, 914 (Tex. Crim. App. 2022) (quoting Clark v.

State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012)).

Here, Quirk clearly objected to the Dallas officers’ testimony, he asserted that

the State had failed in its duty to provide the bodycam videos, and he articulated his

13
belief that their testifying would be unfair to him because their testimony could be

based in part on videos that he had not seen. However, as we will explain, while he

clearly argued that the State should have disclosed the videos, what he did not make

obvious was that the legal bases for his objection included Rule 612.

After the second Dallas officer’s voir dire testimony, Quirk made a series of

objections. As noted above, he began by stating that he had “a few issues” with the

officers’ testifying:

Judge, I have a few issues here. One, I’m learning today that there are
body[ ]cams from both officers that we don’t have. They have been in
continuous possession of the State. It’s the State’s obligation to provide them. We
don’t have them. Both officers reviewed their body camera, so they’ve
looked it over, prepared their testimony based on that, so they are going to be
testifying based on information that we have not seen and we have not been
provided from the State. I have an objection to any testimony because it’s
tainted with evidence that’s not been properly disclosed by the State. [Emphases
added.]

This argument arguably could have been referencing Rule 612’s requirements

to provide to an adverse party any writing used to refresh memory, but it equally

could have been invoking Article 39.14’s requirement that the State turn over

impeachment evidence as well as discovery “material to any matter involved in the

action” when the material is in the State’s possession, custody, or control. See Tex.

Code Crim. Proc. Ann. art. 39.14(a), (h); Tex. R. Evid. 612. Thus, this argument was

insufficient to make it obvious to the trial court that he was objecting based on Rule

612. See Resendez v. State, 306 S.W.3d 308, 314 (Tex. Crim. App. 2009) (holding that “a

complaint that could, in isolation, be read to express more than one legal argument

14
will generally not preserve all potentially relevant arguments for appeal” and that

“[o]nly when there are clear contextual clues indicating that the party was, in fact,

making a particular argument will that argument be preserved”); Broxton v. State,

909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (“An objection stating one legal theory

may not be used to support a different legal theory on appeal.” (citation and quotation

marks omitted)); Sedeno v. State, No. 14-07-00327-CR, 2008 WL 5104169, at *3 (Tex.

App.—Houston [14th Dist.] Nov. 25, 2008, no pet.) (mem. op., not designated for

publication) (holding that defendant’s comments to trial court “did not state his

complaint with sufficient specificity to make the trial court aware he wished to refresh

[the witness’s] recollection with the NHTSA manual” and thus defendant had not

preserved Rule 612 complaint).

Then, Quirk made further arguments before the trial court ruled, and in those

arguments he explicitly invoked Article 39.14 but never mentioned Rule 612. First,

Quirk responded to the State’s references to Article 39.14 and Heath by specifically

arguing that the State had violated Article 39.14. He argued,

Judge, . . . the argument as I understand it is even though the officers are
testifying based on their review of evidence that we have not seen, the
State’s under no obligation to provide us with that evidence, which
would be the [videos]. And we -- I think that’s a violation of 39.14 clearly.
And Dallas, as much as some of us would like to make it so, is not in a
separate state. They’re not that far away. [Emphasis added.] So I think
that’s problematic, just like the [prosecutor’s] argument [earlier that
morning] that officers get to testify routinely about hearsay because they
don’t, as we saw this morning.

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So I think with our arguments that we have made, Judge, I don’t
see how these officers can testify, particularly given that they’re basing
their testimony on something that has been withheld from the State --
withheld from us by the State.

....

I would point out since we’re talking about Heath, from the actual
body of the opinion, the court specifically states that Article 39.14[‘s] use
of the word State means exactly what one would think it means, the
State of Texas[,] and it does say that is to be used in the broadest sense.
[Emphasis added.]

Then, after the State argued that a remedy for an Article 39.14 violation is a

limiting instruction, Quirk did not mention Rule 612 or argue that the evidentiary rule

required the production of writings used to refresh a witness’s memory and exclusion

of the officers’ testimony if the videos were not produced. See Tex. R. Evid. 612(a),

(c). Instead, Quirk cited Watkins, a Court of Criminal Appeals opinion that addresses

Article 39.14 and does not mention Rule 612. See Watkins, 619 S.W.3d at 268–91.

Further, the record does not reflect that the trial court clearly understood Quirk

to be raising an objection based on Rule 612. After the parties made their arguments,

the trial court took a moment to “read[ ] over parts of Heath.” The trial court then

stated,

Okay. Having heard arguments from both the State and the Defense, I
am going to allow the officers’ testimony. However, as the [videos]
ha[ve] not been supplied, I’m going to exclude any mention to anything
observed in the [videos] or any reference to the [videos] whatsoever. I
am also going to sustain the objection as to hearsay as to any statements
made by the injured party in this case. So the officers’ testimony will be
limited to their observations, the reason for the call, anything that they

16
observed or discovered in their investigation that did not come from any
statements made by the injured party.

Nothing suggests that the trial court had considered Rule 612 in its ruling, and its

pausing proceedings to read Heath indicates that it was considering the application of

Article 39.14. The trial court further stated that it was overruling “the 403 objection

and the Crawford and Sixth Amendment objections 4 made by the Defense.” Nothing

in those rulings indicated that the trial court understood that Quirk was making a Rule

612 objection. Moreover, nothing indicates that the prosecutor understood Rule

612 to be Quirk’s objection, either; all of the prosecutor’s arguments about the State’s

obligation to produce discovery related to Article 39.14.

After those rulings, Quirk made one more argument regarding the Dallas

officers’ testimony, and that argument did not cite Rule 612 or obviously refer to it, as

opposed to Article 39.14:

Judge, I would ask – I know it’s a little late. Well, I guess my concern is
I’m not going to know what these officers are pulling from their review
of the [videos] that they have already done today versus what they are
just pulling from their report that we have had access to. I don’t know
how we can verify that or determine that.

I know looking at the police report, a lot of what testimony they
gave us this afternoon was not included in the police report and so I

4
A violation of the Sixth Amendment right to cross-examine witnesses and a
violation of Rule 612 can both be implicated by the exclusion of evidence that could
be used in cross-examination. See Young v. State, 891 S.W.2d 945, 948 (Tex. Crim. App.
1994). Nevertheless, an objection based on a constitutional provision does not
necessarily alert the trial court to an objection based on a statutory provision. See, e.g.,
Broxton, 909 S.W.2d at 918.

17
think my only assumption has to be that it came from the [video]
footage that the Court just said that they can’t allude to or reference. So
I’m finding difficulty in determining how they can testify to anything and
we can verify that they got it strictly from this police report that we have
had access to. That’s my concern.

This argument, like the objection he began with, is one that he could have

made to support a Rule 612 objection, but it would also have relevance to an

objection under Article 39.14. Given that Quirk to that point had specifically

referenced Article 39.14 and cases applying it but had not mentioned Rule 612, this

argument was not enough to apprise the trial court that he was also objecting based

on Rule 612. See Resendez, 306 S.W.3d at 314; Broxton, 909 S.W.2d at 918.

Quirk cites Young v. State, 830 S.W.2d 122, 125 n.3 (Tex. Crim. App. 1992)

(plurality op.), for the proposition that to preserve a Rule 612 complaint, a defendant

“is not required to undertake the practically impossible task of somehow unilaterally

acquiring the materials for inclusion in the record to preserve the matter for appeal”

and that “[t]he error is complete and preserved when a criminal defendant is denied

access to materials he is entitled.” That footnote addressed the State’s argument in

that case that the defendant had not preserved his Rule 612 5 complaint for appeal

because he had not ensured that the writing used to refresh the witness’s memory—

which the witness had not brought to trial—was made a part of the appellate record.

Young discussed former Texas Rule of Criminal Evidence 611, which is now
5

Texas Rule of Evidence 612. See Powell v. State, 5 S.W.3d 369, 379 n.4 (Tex. App.—
Texarkana 1999, pet. ref’d).

18
Id. at 124, 125 n.3. The Young court held, “To say that in order to ‘demonstrate that

the court erred’ an appellant must nonetheless unilaterally somehow acquire [the

materials] from the witness for inclusion in the appellate record by way of a bill of

exception is to impose a practically impossible task that the law or rule does not

require.” Id. at 125 n.3. But Young does not hold that a defendant has no need to make

a Rule 612 objection to preserve error, and the court specifically noted that the

defendant was entitled to have the records produced for inspection by his counsel

“[w]hen [he] invoked Rule [612].” Id. at 124–25.

Although Quirk was not required to use any specific words to preserve his

complaint, he was required to make the legal basis for his objection obvious to the

trial court. Vasquez, 483 S.W.3d at 554. He did not do so with respect to the Rule

612 complaint that he raises in his reply brief. Thus, he did not preserve this

complaint for appeal.6

We overrule both of Quirk’s issues.

6
Because of our holding, we need not decide if it matters for preservation or
harm-analysis purposes that the officers were not asked—and thus the record does
not reflect—what the officers remembered independently of the bodycam videos
versus what, if anything, they remembered because they watched the footage. We
further note that nothing in the record indicates that the officers did not follow the
trial court’s ruling to refrain from mentioning anything that they had observed in the
video. Moreover, the record suggests that the bodycam footage did not work to
refresh either officer’s memory, or at least they did not retain that memory by the time
of their voir dire testimony.

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Conclusion

Having overruled Quirk’s two issues, we affirm the trial court’s judgment.

/s/ Mike Wallach
Mike Wallach
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: September 18, 2025

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