Dustin Michael Tidbeaux v. the State of Texas

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

No. 02-24-00429-CR
___________________________

DUSTIN MICHAEL TIDBEAUX, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 43rd District Court
Parker County, Texas
Trial Court No. CR23-0251

Before Birdwell, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION

Appellant Dustin Michael Tidbeaux appeals his conviction for continuous

sexual abuse of a young child (CSA). See Tex. Penal Code Ann. § 21.02(b). On

appeal, Tidbeaux contends that (1) the evidence is insufficient to support his

conviction, (2) the charge misstated the law by allowing the jury to convict him of

CSA regardless of whether the predicate acts of abuse occurred at least thirty days

apart, and (3) the trial court abused its discretion by excluding his punishment-phase

witness because she violated “the Rule” during the trial’s guilt–innocence phase. We

will affirm.

I. BACKGROUND

Tidbeaux began a romantic relationship with Mother1 in 2006, and Mother

became pregnant with Jane—the victim—soon afterward. Shortly after Jane was

born, Mother and Tidbeaux married and purchased a home in Azle.

In 2010, when Jane was three years old, Mother and Tidbeaux separated.

Following the separation, Jane lived with Mother, but she would visit Tidbeaux every

other weekend and every other Monday. Mother formally divorced Tidbeaux in 2011

and moved with Jane to Oklahoma in 2012. But even after moving to Oklahoma,

Mother continued to bring Jane to visit Tidbeaux every other weekend. Later in 2012,

visitation temporarily stopped when Mother and Jane moved to West Virginia with

1
Because the victim was a minor at the time of the offense, we refer to her by
an alias and refer to her immediate family members—other than Tidbeaux—by their
relationships to her. See Tex. R. App. P. 9.10(a)(3).

2
Mother’s second husband, Stepfather. But the every-other-weekend visitation

schedule resumed in 2015 when Mother, Jane, and Stepfather moved back to Texas.

In October 2022, when Jane was fifteen years old, she told Stepfather that

Tidbeaux had sexually abused her, but she did not go into detail. Stepfather contacted

the police, and an investigator arranged for Jane to be forensically interviewed at the

Parker County Children’s Advocacy Center. 2 During the forensic interview, Jane

made an outcry of abuse and told the interviewer, Brittany Lain, that Tidbeaux had

forced her to perform oral sex on him in his home’s laundry room multiple times.

She also told Lain that Tidbeaux had touched her vagina with his hand more than

once in his bedroom. Jane stated that the abuse had started when she was

approximately six years old and had not ended until she was twelve or thirteen years

old and had stopped visiting Tidbeaux.

Following the forensic interview, Jane met with Investigator Nathan Vick with

the Crimes Against Children Unit of the Parker County Sheriff’s Office. He initiated

a one-party consent call in which Jane called Tidbeaux while Investigator Vick

recorded the conversation without Tidbeaux’s knowledge. During the call, Jane

confronted Tidbeaux about the sexual abuse, and he did not deny that it had

2
The Children’s Advocacy Center is a nonprofit organization that provides “a
child[-]friendly environment for children, young adults, [and] teenagers to come and
talk about abuse allegations.”

3
occurred. Rather, he told Jane to tell the authorities that she had made up the abuse

allegations because she was angry at him.

Ultimately, Tidbeaux was charged via indictment with CSA. He pleaded not

guilty, and a jury trial was held. At trial, the State called Jane, Mother, Stepfather,

Lain, and Investigator Vick as witnesses, and the recording of the one-party consent

call was admitted into evidence.

Jane testified regarding the sexual abuse that Tidbeaux had committed against

her. According to Jane, Tidbeaux directed her to perform oral sex on him in his

laundry room “more than once.” She recalled that on one occasion, he had put Life

Saver gummies on his penis and had instructed her to eat them. She also described an

incident in Tidbeaux’s bedroom during which he removed her pants and underwear

and then touched and penetrated her vagina with his fingers. She also stated that one

time while she and Tidbeaux were sitting on the couch, he had reached down her

pants and had touched her vagina over her underwear. According to Jane, she was

likely to be abused every time that she went to visit Tidbeaux. She confirmed that

Tidbeaux had abused her “for a number of years” and specifically stated that the

abuse had begun before she moved to Oklahoma in 2012 (i.e., when she was

approximately five or six years old) and had not ended until she stopped going to visit

Tidbeaux when she was around thirteen or fourteen years old.

After considering all the evidence, the jury found Tidbeaux guilty of CSA.

Following the trial’s punishment phase, the jury assessed his punishment at fifty-five

4
years in prison, and the trial court sentenced him accordingly. Tidbeaux filed a

motion for new trial, which the trial court denied. Tidbeaux now appeals.

II. DISCUSSION

On appeal, Tidbeaux raises three issues. We address each of them in turn

below.

A. Sufficiency of the Evidence

In his first issue, Tidbeaux contends that the evidence is insufficient to support

his CSA conviction. Specifically, he asserts that given the evidence presented at trial,

a rational jury could not find beyond a reasonable doubt that Tidbeaux’s acts of sexual

abuse against Jane spanned a period of thirty or more days. 3 We disagree.

1. Standard of Review

When conducting an evidentiary-sufficiency review, we view all the evidence in

the light most favorable to the verdict to determine whether any rational factfinder

could have found the crime’s essential elements beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d

616, 622 (Tex. Crim. App. 2017). This standard gives full play to the factfinder’s

responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw

Because the duration of the sexual abuse is the only CSA element that
3

Tidbeaux’s evidentiary-sufficiency argument contests, we limit our discussion to that
element. See Tex. R. App. P. 47.1; Fernandez v. State, No. 02-19-00014-CR, 2020 WL
579117, at *1 (Tex. App.—Fort Worth Feb. 6, 2020, no pet.) (mem. op., not
designated for publication).

5
reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319,

99 S. Ct. at 2789; Harrell v. State, 620 S.W.3d 910, 914 (Tex. Crim. App. 2021).

The factfinder alone judges the evidence’s weight and credibility. See Tex. Code

Crim. Proc. Ann. art. 38.04; Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App.

2021). We may not re-evaluate the evidence’s weight and credibility and substitute

our judgment for the factfinder’s. Queeman, 520 S.W.3d at 622. Instead, we determine

whether the necessary inferences are reasonable based on the evidence’s cumulative

force when viewed in the light most favorable to the verdict. Braughton v. State, 569

S.W.3d 592, 608 (Tex. Crim. App. 2018); see Villa v. State, 514 S.W.3d 227, 232 (Tex.

Crim. App. 2017) (“The court conducting a sufficiency review must not engage in a

‘divide and conquer’ strategy but must consider the cumulative force of all the

evidence.”). We must presume that the factfinder resolved any conflicting inferences

in favor of the verdict, and we must defer to that resolution. Braughton, 569 S.W.3d at

608.

2. Elements of CSA Offense

To convict Tidbeaux of CSA, the jury was required to find beyond a reasonable

doubt that (1) Tidbeaux (2) at a time when he was at least seventeen years of age

(3) committed a series of two or more acts of sexual abuse (4) during a period

spanning thirty or more days (5) against Jane, who was younger than fourteen years of

age. Tex. Penal Code Ann. § 21.02(b); Keith v. State, No. 02-24-00034-CR, 2024 WL

4899022, at *2 (Tex. App.—Fort Worth Nov. 27, 2024, no pet.) (mem. op., not

6
designated for publication). “Although the exact dates of the acts of sexual abuse

need not be proven, the offense of continuous sexual abuse of a child does require

proof that one act of sexual abuse occurred on at least the [twenty-ninth] day after the

day of another act of sexual abuse.” Lawson v. State, No. 02-17-00201-CR, 2018 WL

1192478, at *4 (Tex. App.—Fort Worth Mar. 8, 2018, no pet.) (per curiam) (mem.

op., not designated for publication) (citing Tex. Penal Code Ann. § 21.02(d)). But

“members of the jury are not required to agree unanimously on which specific acts of

sexual abuse were committed by the defendant or the exact date[s] when those acts

were committed.” Id.

3. Analysis

Although Tidbeaux contends that the evidence is insufficient to support the

CSA offense’s duration element, our review of the record shows otherwise. Jane

testified that the abuse began before she moved to Oklahoma in 2012 (i.e., when she

was approximately five or six years old) and did not end until she was around thirteen

or fourteen years old. The record reflects that, except for the approximately two-and-

a-half-year period that Mother, Stepfather, and Jane lived in West Virginia, Jane would

“regularly” visit Tidbeaux every other weekend after he and Mother separated and

divorced. And during her forensic interview, Jane stated that Tidbeaux abused her

“almost every time” that she went to visit him. Based on this evidence, a rational

factfinder could have determined that Tidbeaux sexually abused Jane numerous times

7
and that two of these acts of abuse occurred at least thirty days apart. 4 See Norris v.

State, No. 02-23-00298-CR, 2024 WL 3458077, at *6 (Tex. App.—Fort Worth July 18,

2024, pet. ref’d) (mem. op., not designated for publication) (holding that victim’s

testimony that appellant had begun sexually abusing her when she was eight years old

and had continued to do so until she was approximately fifteen years old was

sufficient evidence to support duration element of CSA offense); see also Turner v. State,

Nos. 05-21-00922-CR, 05-21-00924-CR, 2023 WL 3991662, at *3 (Tex. App.—Dallas

June 14, 2023, pet. ref’d) (mem. op., not designated for publication) (recognizing that

“child victims are not required to be specific about the dates the abuse occurred”

(citing Montero v. State, No. 05-18-01281-CR, 2019 WL 3229170, at *2 (Tex. App.—

Dallas July 18, 2019, no pet.) (mem. op., not designated for publication))). Thus, the

evidence is sufficient to support Tidbeaux’s CSA conviction. See Norris, 2024 WL

3458077, at *6.

4
Tidbeaux argues that Jane’s and Lain’s testimony concerning the dates and
frequency of the abuse is insufficient to prove the CSA offense’s duration element
because Jane also testified about certain other inappropriate but non-criminal acts
committed by Tidbeaux and Jane’s and Lain’s testimony about the duration of the
abuse failed to distinguish between criminal and non-criminal acts. But Jane did not
testify about any inappropriate but non-criminal touching until after she had already
confirmed that Tidbeaux had abused her “for a number of years,” and Lain’s
testimony did not address non-criminal touching at all. Further, Tidbeaux has not
pointed to any specific instances in which the State or Jane used the term “abuse” to
refer to an instance of inappropriate but non-criminal touching, nor has our review of
the record revealed such an instance. Thus, the mere fact that Jane testified regarding
certain inappropriate but non-criminal touching would not prevent the jury from
reasonably inferring that she had been sexually abused as defined in the CSA statute
over a number of years.

8
We overrule Tidbeaux’s first issue.

B. Jury Charge

In his second issue, Tidbeaux contends that the jury charge was erroneous and

caused him egregious harm because it allowed the jury to convict him of CSA

regardless of whether at least two of the predicate acts of sexual abuse occurred at

least thirty days apart. He bases this contention on the following paragraphs of the

jury charge, particularly the emphasized language:

Our law provides a person commits the offense of Continuous Sexual
Abuse of a Young Child if, during a period that is [thirty] days or more in
duration, the person commits two or more acts of sexual abuse, and at the
time of the commission of each of the acts of sexual abuse, the person
was [seventeen] years of age or older and the victim is a child younger
than [fourteen] years of age.
....
For any allegations of sexual abuse, you are instructed that the jury is not
required to agree unanimously on which specific acts of sexual abuse, if
any, were committed by the Defendant or the exact date when those acts
were committed, if any. With respect to an allegation of Continuous
Sexual Abuse of a Young Child, the jury must simply agree unanimously
that the Defendant, during a period that was [thirty] or more days in duration,
committed two or more acts of sexual abuse . . . .
Now, if you find from the evidence beyond a reasonable doubt the
Defendant, Dustin Michael Tidbeaux . . . on or about the 1st day of
May, 2010 through on or about the 19th day of December, 2020, did
then and there, during a period that was [thirty] or more days in duration, when
the Defendant was [seventeen] years of age or older, commit two or
more acts of sexual abuse against [Jane], a child younger than [fourteen]
years of age . . .
....

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then you will find the Defendant guilty of Continuous Sexual Abuse of a
Young Child as charged in the indictment. [Emphasis added.]
Although Tidbeaux acknowledges that the phrase “during a period that was [thirty] or

more days in duration” tracks the language of the CSA statute, see Tex. Penal Code

Ann. § 21.02(b)(1), he asserts that the trial court nevertheless erred by using this

language in the charge because the statutory language itself is confusing. According to

Tidbeaux, the plain meaning of this phrase “implies acts occurring within [thirty] days

or more rather than [thirty] days apart.” For the reasons set forth below, we conclude

that even if we assume that the trial court erred by using this language, such error did

not cause Tidbeaux egregious harm.

1. Standard of Review

We must review “all alleged jury-charge error . . . regardless of preservation in

the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).

“Preservation of charge error does not become an issue until we assess harm.” Ngo v.

State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). “The degree of harm necessary

for reversal depends on whether the appellant preserved the error by objection.” Id.

“Under Almanza [v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g)], jury

charge error requires reversal when the defendant has properly objected to the charge

and we find ‘some harm’ to his rights.” Id. “When the defendant fails to object or

states that he has no objection to the charge, we will not reverse for jury-charge error

unless the record shows ‘egregious harm’ to the defendant.” Id. at 743–44. “Thus, we

10
review alleged charge error by considering two questions: (1) whether error existed in

the charge; and (2) whether sufficient harm resulted from the error to compel

reversal.” Id. at 744.

2. Analysis

Because Tidbeaux did not object to the jury charge, we apply the egregious-

harm standard. See id. at 743–44. This standard is difficult to meet and requires a

showing that the appellant was deprived of a fair and impartial trial. See Taylor v. State,

332 S.W.3d 483, 489 (Tex. Crim. App. 2011). In making an egregious-harm

determination, we must consider “the actual degree of harm . . . in light of the entire

jury charge, the state of the evidence, including the contested issues and weight of

probative evidence, the argument of counsel[,] and any other relevant information

revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171. See

generally Gelinas v. State, 398 S.W.3d 703, 708–10 (Tex. Crim. App. 2013) (applying

Almanza). Errors that result in egregious harm are those “that affect the very basis of

the case, deprive the defendant of a valuable right, vitally affect the defensive theory,

or make a case for conviction clearly and significantly more persuasive.” Taylor, 332

S.W.3d at 490 (citing Almanza, 686 S.W.2d at 172). “An egregious harm

determination must be based on a finding of actual rather than theoretical harm.”

Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011) (citing Ngo, 175 S.W.3d at

750).

11
In the present case, even if we were to assume that the charge’s challenged

language regarding the CSA’s duration element was ambiguous (and therefore

erroneous), the record does not show that Tidbeaux suffered egregious harm.

Tidbeaux’s defensive theory was that Jane had fabricated the sexual-abuse

allegations—i.e., that the sexual abuse had not occurred at all—not that the abuse had

occurred within a period spanning less than thirty days. Indeed, Tidbeaux never

specifically mentioned the duration element during his closing argument. And, as

noted, Jane testified that Tidbeaux regularly abused her “for a number of years,” that

the abuse began before she moved to Oklahoma when she was approximately five or

six years old, and that it did not stop until she was around thirteen or fourteen years

old. Thus, if the jury rejected Tidbeaux’s fabrication theory and found Jane’s

testimony to be credible, it would necessarily conclude that the duration element had

been satisfied.

Further, although Tidbeaux asserts that the State’s closing argument added to

the jury’s confusion regarding the CSA offense’s duration element, our review of the

record reveals otherwise. Tidbeaux contends that the State confused the jurors by

twice telling them that to convict Tidbeaux of CSA, they had to agree that two or

more acts of abuse “happened over a [thirty]-day period.” According to Tidbeaux,

this phrasing “suggests that two or more acts [of abuse] must occur within [thirty] days

of each other” as opposed to being separated by at least thirty days. But the State also

declared that it “ha[d] to prove that two or more of these acts were committed in over

12
a [thirty]-day period,” explained that “[a]s long as it’s over [thirty] days, that’s . . . CSA,”

and clarified that the jury could convict Tidbeaux of CSA if it agreed that any two acts

of abuse occurred “within [the alleged time] period and more than [thirty] days” apart.

[Emphasis added.] Thus, while the State’s declaration that the jury could convict

Tidbeaux of CSA if they agreed that two or more acts of abuse “happened over a

[thirty]-day period” might appear confusing or ambiguous when viewed in isolation,

the State’s other references to the duration requirement made clear that the acts of

abuse had to occur at least thirty days apart, not within thirty days of each other.5

Given the fact that Tidbeaux did not contest the duration element at trial,

Jane’s testimony regarding the timeframe of the abuse, and the totality of the State’s

closing arguments, we cannot conclude that the challenged language in the jury charge

caused Tidbeaux egregious harm. See Cisnerosmartinez v. State, No. 02-24-00144-CR,

2025 WL 1840568, at *11 (Tex. App.—Fort Worth July 3, 2025, pet. filed) (mem. op.,

5
Tidbeaux similarly argues that the prosecutor’s repeated statement to the
venire during voir dire that the law required two or more acts of sexual abuse “within
a period of [thirty] days or more” to convict a defendant of CSA supports the
conclusion that the complained-of charge error caused him egregious harm. But the
prosecutor also asked the prospective jurors if they could consider the minimum
punishment for a defendant that had committed only two acts of sexual abuse “right
in that [thirty-one] days.” And Tidbeaux’s counsel further clarified the duration
requirement during voir dire by explaining that for CSA, “[y]ou [must] have two
instances of conduct [thirty] days apart from each other at least.” Thus, as with the
State’s closing argument, while the prosecutor’s use of the phrase “within a period of
[thirty] days or more” might appear confusing or ambiguous when viewed in isolation,
the attorneys’ other statements to the prospective jurors during voir dire clarified that
the acts of abuse must occur at least thirty days apart.

13
not designated for publication) (holding that jury charge’s use of the phrase “during a

period of time that is [thirty] days or more in duration” to describe CSA’s duration

element did not cause egregious harm because of “the distinct temporal details in [the

victim’s] testimony, the totality of the instructions in the charge, . . . the voir dire[,]

and closing argument of counsel for the State”); Stevens v. State, No. 02-23-00122-CR,

2024 WL 3978169, at *13–15 (Tex. App.—Fort Worth Aug. 29, 2024, pet. ref’d)

(mem. op., not designated for publication) (concluding that charge authorizing jury to

convict appellant of CSA “if he committed two acts of sexual abuse on any two dates

between the dates alleged in the indictment . . . rather than [thirty] days apart from one

another” did not cause egregious harm because the evidence did not describe acts of

abuse that occurred within thirty days of each other, the abstract portion of the

court’s charge distinguished between the overarching alleged period of abuse and the

temporal separation period, and counsel for the State made it clear that the distinct

acts of sexual abuse had to have occurred thirty days apart); see also Jones v. State,

229 S.W.3d 489, 494 (Tex. App.—Texarkana 2007, no pet.) (holding that “while [the

defendant’s intent] was a part of the State’s required proof, [it] was not a contested

issue[,] and consequently [the defendant] could not be egregiously harmed by the

definition of the intentional and knowing state of mind”); Lane v. State, 957 S.W.2d

584, 587 (Tex. App.—Dallas 1997, pet. ref’d) (concluding that omission from charge

of element of offense did not cause egregious harm in part because element was not

contested at trial).

14
We overrule Tidbeaux’s second issue.

C. Disqualification of Punishment-Phase Witness

In his third issue, Tidbeaux contends that the trial court abused its discretion

by excluding his grandmother’s testimony during the trial’s punishment phase because

she had violated “the Rule” during the guilt–innocence phase. We disagree.

1. Applicable Law and Standard of Review

Texas Rule of Evidence 614, commonly referred to as “the Rule,” provides that

at the request of a party, the court shall order witnesses excluded so that they cannot

hear the testimony of other witnesses. Tex. R. Evid. 614; see also Tex. Code Crim.

Proc. Ann. art. 36.06 (stating that “[w]itnesses, when placed under rule, shall be

instructed by the court that they are not to converse with each other or with any other

person about the case, except by permission of the court”). The Rule is designed to

prevent witnesses from altering their testimony, consciously or not, based on other

witnesses’ testimony. Routier v. State, 112 S.W.3d 554, 590 (Tex. Crim. App. 2003);

Webb v. State, 766 S.W.2d 236, 239 (Tex. Crim. App. 1989). When the Rule is invoked,

a witness should not hear testimony in the case or talk to any other person about the

case without the court’s permission. Minor v. State, 91 S.W.3d 824, 829 (Tex. App.—

Fort Worth 2002, pet. ref’d).

We review a trial court’s decision to exclude a witness’s testimony for an abuse

of discretion. Taylor v. State, 173 S.W.3d 851, 853 (Tex. App.—Texarkana 2005, no

pet.). In determining whether to disqualify a witness under the Rule, the trial court

15
must balance the interests of the State and the accused, consider alternative sanctions,

and consider the benefit and detriment arising from a disqualification in light of the

nature and weight of the testimony to be offered. Webb, 766 S.W.2d at 244; Tell v.

State, 908 S.W.2d 535, 541 (Tex. App.—Fort Worth 1995, no pet.). The

disqualification of a defense witness must be considered in the context of the

defendant’s constitutional right to call witnesses on his behalf. Longoria v. State,

148 S.W.3d 657, 660 (Tex. App.—Houston [14th Dist.] 2004, pets. ref’d). Thus,

when determining whether the trial court properly exercised its discretion by

disqualifying a witness, the appellate court must determine: (1) whether there are

particular circumstances, other than the mere fact that the Rule was violated, which

would tend to show that the defendant or his counsel consented, procured, or

otherwise had knowledge of a witness who was in violation of the Rule and (2) if no

particularized circumstances existed to justify the disqualification, whether the

excluded testimony is crucial to the defense. Webb, 766 S.W.2d at 245; Tell, 908

S.W.2d at 541. The appellant has the burden of establishing both prongs. Webb, 766

S.W.2d at 246.

2. Relevant Background

At the beginning of trial, Tidbeaux invoked the Rule. While Jane was testifying

during the trial’s guilt–innocence phase, Sheriff’s Deputy Thomas Murphy saw

Tidbeaux’s grandmother, Julie Hall, enter the courtroom and listen to Jane’s testimony

for a few minutes. Deputy Murphy asked her if she was a potential witness, and she

16
responded that she “wasn’t sure” but that she had previously talked to one of the

defense attorneys. Deputy Murphy then instructed her to step out into the hallway,

and she complied.

Before the State rested, it called Deputy Murphy to testify regarding Hall’s

presence in the courtroom during Jane’s testimony. Based on Deputy Murphy’s

testimony, the State objected to Tidbeaux’s calling Hall as a witness, and the trial court

sustained the objection. Tidbeaux’s counsel then stated that the defense would not

call Hall as a witness “at this time.” The defense did not make an offer of proof or

otherwise put on the record what Hall would have testified to during the guilt–

innocence phase.

During the trial’s punishment phase, Tidbeaux called Hall to testify. The State

again objected based on her previous violation of the Rule, and the trial court

sustained the objection. Tidbeaux called Hall for record purposes, and she testified

regarding the circumstances of her violation of the Rule. However, she did not

describe what the substance of her punishment-phase testimony would have been.

3. Analysis

The State argues that Tidbeaux failed to preserve his complaint about the

exclusion of Hall’s testimony, and we agree. To preserve error regarding the

exclusion of evidence, a party must “inform[] the court of [the offered evidence’s]

substance by an offer of proof, unless the substance was apparent from the context.”

Tex. R. Evid. 103(a)(2); see Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999).

17
Without a showing of what the excluded evidence would have been, nothing is

presented for appellate review. Guidry, 9 S.W.3d at 153. Because Tidbeaux did not

make an offer of proof or otherwise put on the record what the substance of Hall’s

punishment-phase testimony would have been, we can only speculate as to the nature

of her testimony.6 Thus, nothing is preserved for our review. See id.; Duncan v. State,

No. 2-06-016-CR, 2006 WL 2507441, at *3 (Tex. App.—Fort Worth Aug. 31, 2006,

pet. ref’d) (mem. op., not designated for publication) (holding that appellant had failed

to preserve complaint about exclusion of punishment-phase witnesses based on their

violation of the Rule because he had not made an offer of proof or bill of exception

showing what their testimony would have been). And even apart from the

preservation issue, without any record of what Hall’s testimony would have been,

6
Tidbeaux argues that the substance of Hall’s testimony was apparent from the
context because “the evidence at trial had already established her close relationship
with both [Tidbeaux] and [Jane]” and it was therefore clear that she “would be able to
testify to . . . [Tidbeaux’s] character and the circumstances surrounding the charged
offense.” See Tex. R. Evid. 103(a)(2). However, to obviate the need for an offer of
proof, the content of the excluded evidence must be “apparent to all” such that the
trial court knows what it is excluding. See Fox v. State, 115 S.W.3d 550, 559 (Tex.
App.—Houston [14th Dist.] 2002, pet. ref’d). Here, although the trial court might
have been able to anticipate the general topic of Hall’s testimony, the specific details
were unknown. Thus, the substance of Hall’s testimony was not apparent from the
context for error-preservation purposes. Cf. West v. State, No. 10-07-00100-CR, 2008
WL 5093376, at *5 (Tex. App.—Waco Dec. 3, 2008, pet. ref’d) (mem. op., not
designated for publication) (holding that appellant had failed to preserve complaint
regarding the exclusion of his roommate’s testimony because he had not made an
offer of proof and the excluded testimony’s substance was not apparent from the
context even though he had stated that the excluded testimony concerned the
impeachment of other witnesses’ testimony regarding the nature of a phone
conversation between the appellant and the victim).

18
Tidbeaux cannot fulfill his burden under the second Webb prong to show that the

excluded evidence was crucial to his defense. See Duncan, 2006 WL 2507441, at *3; see

also Webb, 766 S.W.2d at 245.

We overrule Tidbeaux’s third issue.

III. CONCLUSION

Having overruled all of Tidbeaux’s issues, we affirm the trial court’s judgment.

/s/ Dabney Bassel

Dabney Bassel
Justice

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

Delivered: September 25, 2025

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