CROSSOVER: Dallas Court Reinforces Strict Error-Preservation Rule for Excluded Testimony in Child-Abuse Trial

Linh Hong Dang v. The State of Texas, 05-25-00430-CR, May 21, 2026.

On appeal from Criminal District Court No. 1, Dallas County, Texas

Synopsis

If you want to complain on appeal that the trial court excluded testimony, you must make an offer of proof unless the substance of the excluded evidence is apparent from the record itself. In Dang, the Dallas Court of Appeals held that hearsay-exclusion complaints were not preserved because counsel failed to create a record showing what the witnesses would have said, and the missing substance was not otherwise apparent from context.

Relevance to Family Law

Although Dang is a criminal child-abuse case, its preservation holding matters directly in Texas family litigation. In SAPCRs, modification suits, protective-order proceedings, divorces involving family violence allegations, reimbursement claims, and disputed separate-property tracing, family lawyers routinely face sustained hearsay, relevance, Rule 403, and foundation objections. If counsel does not make a clean offer of proof when key testimony is excluded, the appellate issue may be gone—even where the excluded evidence bears on parental credibility, alleged coaching, motive to fabricate, bias, financial manipulation, or the timeline of abuse allegations. In other words, Dang is a record-making case, and record-making is often outcome-determinative in family court.

Case Summary

Fact Summary

The defendant was convicted of indecency with a child and continuous sexual abuse of a child under fourteen after allegations by his stepdaughters. On appeal, he challenged several evidentiary exclusions. The first involved testimony from the complainants’ mother concerning whether law enforcement or CPS pressured her to say she believed her daughters. The second involved excluded testimony that the mother wanted to pay the defendant’s attorney’s fees. The third concerned an effort to introduce testimony about inconsistent statements regarding when one complainant said the first alleged incident occurred.

The appellate court’s analysis centered less on the ultimate merits of these evidentiary theories than on preservation. As to the first two subjects, defense counsel asked questions that drew hearsay objections, the trial court sustained the objections, and counsel did not make an offer of proof showing the testimony sought to be admitted. Because the record did not otherwise reveal with enough clarity what the answers would have been, the court concluded the complaints were not preserved.

The opinion also addressed an attempted impeachment through prior inconsistent statements regarding the date of an alleged incident. There, the problem was not only preservation in the Rule 103 sense, but also the predicate for impeachment under Rule 613. The court noted that the witness was questioned about prior date statements, but the trial court found the necessary foundation had not been laid before recalling another witness to prove the inconsistency.

Issues Decided

• Whether the defendant preserved appellate review of complaints that the trial court improperly excluded testimony when no offer of proof was made.
• Whether the substance of the excluded testimony was apparent from the context, such that no formal offer of proof was necessary.
• Whether the trial court properly excluded testimony concerning alleged pressure by law enforcement on the complainants’ mother.
• Whether the trial court properly excluded testimony regarding the mother’s alleged desire to pay the defendant’s attorney’s fees.
• Whether the trial court properly refused impeachment testimony concerning an alleged prior inconsistent statement about the timing of the first incident.
• Whether cumulative error warranted reversal.

Rules Applied

The court relied on the familiar preservation framework governing excluded evidence:

• Texas Rule of Evidence 103(a)(2): A party may claim error in a ruling excluding evidence only if the substance of the evidence was made known to the court by offer of proof, unless the substance was apparent from the context.
• Texas Rule of Appellate Procedure 33.1(a)(1): As a prerequisite to presenting a complaint on appeal, the record must show a timely request, objection, or motion stating the grounds with sufficient specificity.
• Reyna v. State, 168 S.W.3d 173 (Tex. Crim. App. 2005): To preserve error in the exclusion of evidence, the proponent must make an offer of proof and obtain a ruling.
• Williams v. State, 937 S.W.2d 479 (Tex. Crim. App. 1996): An offer of proof is required to preserve error regarding exclusion of evidence.
• Texas Rule of Evidence 613(a): Before impeaching a witness with a prior inconsistent statement through extrinsic evidence, the witness must be told the contents, time, place, and person to whom the statement was made and given an opportunity to explain or deny it.

Application

The Dallas Court treated the first two appellate issues as straightforward preservation failures. On the first issue, defense counsel sought to ask the complainants’ mother whether she had told the defendant’s sisters that CPS or law enforcement pressured her to say she believed the children. The State objected on hearsay grounds, and the trial court sustained the objection. But counsel never followed up with an offer of proof outside the jury’s presence. That omission mattered because the appellate court could not tell from the record what the mother’s excluded answer would actually have been. The question itself suggested a theory, but appellate preservation requires substance, not speculation. Without a proffered answer—or some context making the answer unmistakably apparent—the court would not review the merits.

The same defect controlled the second issue. Counsel attempted to elicit from the defendant’s sister whether the complainants’ mother said anything about wanting to pay the defendant’s attorney’s fees. Again, the State objected on hearsay grounds, the objection was sustained, and again no offer of proof followed. On appeal, the defendant tried to recast the statement as admissible under the state-of-mind exception in Rule 803(3). But that argument never got traction because the threshold problem was the absence of a record showing what the excluded testimony would have been. The court would not speculate that the answer would have supported the appellate theory.

The third issue involved a more developed record, but a different evidentiary defect. The defense sought to show that one complainant had given inconsistent dates for the first alleged incident—at trial identifying summer 2021, while earlier statements may have referred to June or July 2020. Counsel cross-examined the complainant about those prior statements, but her answers were equivocal or noncommittal. When the defense later sought to recall the forensic interviewer to prove the inconsistency, the trial court concluded the Rule 613 predicate had not been adequately laid. The appellate court’s discussion reflects a disciplined insistence on evidentiary sequencing: before extrinsic impeachment comes in, the witness must first be confronted in compliance with the rule. So even where preservation was less of a problem, foundational precision still controlled the outcome.

Holding

The court held that the complaint regarding exclusion of testimony about alleged pressure by law enforcement was not preserved for appellate review. Because the proponent made no offer of proof and the substance of the excluded testimony was not apparent from the context, Rule 103(a)(2) and Rule 33.1 barred review.

The court likewise held that the complaint regarding exclusion of testimony that the complainants’ mother wanted to pay the defendant’s attorney’s fees was not preserved. The appellant’s appellate reliance on a hearsay exception could not cure the failure to make an offer of proof showing the content of the excluded statement.

As to the attempted impeachment concerning the date of the first incident, the court held that the trial court did not abuse its discretion in excluding the rebuttal testimony because the foundational requirements for impeachment with a prior inconsistent statement had not been met.

The judgments were affirmed.

Practical Application

For Texas family lawyers, Dang is a reminder that evidentiary error is won or lost in real time. In custody litigation, one parent may try to show that a child’s allegations were shaped by a therapist, a new spouse, a grandparent, or an investigator. In divorce litigation, one spouse may try to prove that the other admitted hidden assets, intended to reimburse a community expenditure, or promised to absorb attorney’s fees. In enforcement or protective-order hearings, parties often attempt to introduce third-party statements explaining fear, recantation, delayed reporting, or bias. If the court sustains an objection and counsel simply moves on, the appellate point may evaporate.

This matters especially in bench trials, where family lawyers sometimes relax preservation discipline under the assumption that the judge “gets it.” The court of appeals will not infer excluded substance merely because the trial judge heard part of the exchange. If the testimony matters, counsel should ask to approach, request permission to make a bill, and put the excluded answer in the record either through a question-and-answer offer or a concise summary by counsel confirmed by the court.

The case also underscores the importance of distinguishing two separate problems: exclusion preservation and impeachment foundation. Even if you preserve that evidence was excluded, you may still lose if you failed to satisfy the predicate for extrinsic impeachment under Rule 613. In custody cases involving alleged parental alienation, family violence, coaching, or false reporting, prior inconsistent statements are often central. But they must be set up carefully—time, place, content, recipient, and opportunity to explain or deny.

A strategic family-law practitioner should treat Dang as a template for motion-in-limine preparation, witness outlines, and live-hearing contingency planning. If the case will turn on excluded testimony, build the appellate record as deliberately as you build the merits record.

Checklists

Preserving Excluded Testimony for Appeal

• Make a timely response immediately after the objection is sustained.
• Ask to make an offer of proof outside the jury’s presence, or on the record in a bench trial.
• State clearly the purpose of the evidence and the rule supporting admissibility.
• Put the substance of the excluded testimony in the record through:
• question-and-answer format, or
• a concise narrative summary by counsel
• Obtain an express ruling on the offer of proof if needed.
• If multiple admissibility theories exist, state each one separately.
• Do not assume the substance is “apparent from the context” unless it truly is unmistakable.

Using Prior Inconsistent Statements in Family Court

• Confront the witness first before offering extrinsic impeachment evidence.
• Identify the statement’s substance with reasonable specificity.
• Identify when the statement was made.
• Identify where the statement was made.
• Identify to whom the statement was made.
• Give the witness a fair opportunity to explain or deny the statement.
• Only after laying the predicate, offer the third-party witness or document proving the inconsistency.

Handling Hearsay Objections Strategically

• Be ready to articulate whether the statement is:
• not offered for the truth,
• a prior inconsistent statement for impeachment only,
• party-opponent material,
• state-of-mind evidence under Rule 803(3), or
• another enumerated exception
• Explain the non-hearsay purpose with precision.
• If the court sustains the objection, immediately preserve the excluded substance by offer of proof.
• If the statement contains both admissible and inadmissible components, ask to redact rather than abandon the line of proof.

Applying Dang in SAPCR and Divorce Litigation

• In abuse-allegation cases, preserve excluded testimony bearing on coaching, bias, motive, or timeline.
• In conservatorship disputes, preserve excluded statements affecting a parent’s credibility or best-interest factors.
• In property disputes, preserve excluded admissions concerning ownership, reimbursement, concealment, or debt allocation.
• In fee disputes, preserve excluded statements about responsibility for attorney’s fees or litigation funding.
• In protective-order hearings, preserve excluded statements relevant to fear, recantation, reporting history, and corroboration.

Trial-Team Record-Making Protocol

• Assign one lawyer or staff member to track sustained objections requiring a proffer.
• Keep a running list of excluded exhibits and excluded testimony topics.
• Have rule citations ready for recurring evidentiary issues.
• Request brief recesses when necessary to prepare a proper offer of proof.
• After the hearing, verify that the court reporter captured the offer and ruling.
• Cross-check preservation points before resting.

Citation

Linh Hong Dang v. State of Texas, Nos. 05-25-00430-CR & 05-25-00466-CR, memorandum opinion, 2026 WL ___ (Tex. App.—Dallas May 21, 2026, no pet. h.).

Full Opinion

Read the full opinion here

Family Law Crossover

Dang can be weaponized in family litigation in two opposite ways. First, if you are defending a favorable trial result, Dang is an excellent appellate shield: when opposing counsel failed to make an offer of proof after excluded testimony on abuse allegations, therapist statements, financial promises, school records, or third-party conversations, you can argue the issue is simply not preserved. That can neutralize otherwise sympathetic appellate themes about excluded credibility evidence. Second, if you are trying the case, Dang is a sharp reminder to affirmatively build reversible error into the record when harmful evidence is kept out. In a divorce or custody trial, the lawyer who knows how to preserve excluded testimony about coaching, manipulation, hidden-money admissions, or shifting timelines may be the only lawyer who still has an appellate issue after judgment.

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