MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion by Justice Benavides In this child sexual abuse case, appellant Kenneth Stewart argues that the trial court erred when it failed to admit photographs where the complainant, Stewart’s daughter, R.L.,1 appears happy with her family on several different occasions. Stewart kept R.L. from visiting them to keep her from outcrying to family members who may have believed her.

During his defense, Stewart attempted to admit several different pictures showing R.L. as a happy, well-adjusted child in different social settings, such as a weddings or birthday parties. These pictures, he explained, would counter the State’s theory that Stewart “isolated” R.L. from her maternal extended family to facilitate his alleged sexual abuse of her. While the trial court agreed to admit some pictures, it refused to allow others on the basis that they did not support the defense’s theory. For example, the trial court explained that pictures of R.L. with her father at his college graduation had nothing to do with the alleged “isolation” of R.L. from her maternal family. The court further commented that photos demonstrating a “happy little family” would be more appropriately introduced during the punishment phase of a trial, as opposed to the guilt-innocence phase. Stewart’s counsel requested to make an offer of proof of all of the pictures, and the trial court stated that counsel could do so after the jury left for the day. However, the record reveals that Stewart’s counsel never made that offer.

The jury convicted Stewart of seven counts of aggravated sexual assault of a child, two counts of sexual assault of a child, and four counts of indecency with a child. See TEX. PENAL CODE ANN. § 22.021 (West Supp. 2011); §§ 22.011, 21.11 (West 2011). The jury sentenced Stewart to sixty years for the first seven counts, and twenty years for the next six counts, and assessed a fine of $10,000. This appeal followed.

II. APPLICABLE LAW AND DISCUSSION

Texas Rule of Appellate Procedure 33.1 provides that, to preserve error for review, a party must make a complaint to the trial court by a “timely request, objection, or motion” that states the grounds for the ruling that the complaining party seeks from the trial court with sufficient specificity. TEX. R. APP. P. 33.1(1)(A). Further, the trial court must rule on this request, objection, or motion. Id. at R. 33.1(2)(A).

Here, the trial court did agree to admit some photos, such as photos of R.L. with Stewart at her wedding, and at a school dance, and at his college graduation. However, Stewart wanted to enter more photos which the trial court did not allow because the court held that they were irrelevant and did not support the defense’s contention that R.L. was not isolated from her family:

THE COURT: I mean, this is not relevant in this stage of the trial. The elements of the offense are relevant.

You may put these in at the punishment if we get there.

STEWART’S COUNSEL: All right. Well, let me make—I guess I’ll make a Bill on these.

THE COURT: You may make a Bill when the jury goes home.

STEWART’S COUNSEL: I can’t do it now?

THE COURT: No.

The record shows, though, that Stewart’s counsel did not make the proper offer of proof with the photos he wished to admit. See TEX. R. EVID. 103 (“The offering party shall, as soon as practicable, but before the court’s charge is read to the jury, be allowed to make, in the absence of the jury, its offer of proof.”). Defense counsel has “an obligation to press the trial judge to a definite ruling on the objection.” Hanner v. State, 572 S.W.2d 702, 707 n.5 (Tex. Crim. App. 1978). Stewart failed to preserve error with regard to the photos.

Assuming that Stewart did preserve error, though, the exclusion of the photos would still not be error. The admission and exclusion of evidence is within the trial court's sound discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex. 2003). “That is to say, as long as the trial court's ruling was within the zone of reasonable disagreement, the appellate court should affirm.” Id. (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. 1991)). In this case, the trial court clearly explained why it thought some of the photos were irrelevant: they failed to support the defense’s counter-argument that R.L. was not isolated from her maternal relatives. This reasoning is not outside the zone of reasonable disagreement, and, thus, was not an abuse of discretion. We overrule Stewart’s sole issue.

III. CONCLUSION

Because we overruled Stewart’s sole issue, we affirm the trial court’s judgment.

__________________________ GINA M. BENAVIDES, Justice Do not publish.

TEX. R. APP. P. 47.2 (b).

Delivered and filed the 7th day of June, 2012.