Affirmed and Memorandum Opinion filed February 7, 2013.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-11-00653-CR



                          LESLIE FOSTER, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 176th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1311757


                       MEMORANDUM OPINION

      Appellant, Leslie Foster, appeals his conviction for evading arrest or
detention with a motor vehicle. In three issues, appellant contends the trial court
(1) violated appellant’s constitutional right to confrontation by limiting his cross-
examination of a witness, (2) erred by denying appellant’s request for a jury
instruction pursuant to Texas Code of Criminal Procedure article 38.23, and (3)
included improper language in the application paragraphs of the jury charge. We
affirm.

                                I. BACKGROUND

      According to the State’s evidence, at approximately 3:00 a.m. on January 28,
2011, Houston Police Officer Julissa Diaz responded to a dispatch reporting that
two males were engaged in suspicious activity at an apartment complex, including
stealing license plates and a truck-trailer combination. Officer Diaz noticed the
men as they drove toward the exit of the complex. The trailer became detached
from the truck, so the men walked to the back of the truck.         Officer Diaz
approached and asked for identification. The men reached inside the front doors of
the truck as though obtaining their identifications and then “jumped” in the truck
and sped away. Appellant was later identified as the passenger.

      As the driver sped out of the complex, he almost struck a patrol car driven
by Officer Jesus Thomas, who was also responding to the dispatch. With his lights
and siren activated, Officer Thomas began chasing the truck. The driver sped onto
a freeway, moved to the left across all lanes, and stopped on the shoulder in the
middle of the freeway. The driver exited the truck and ran across the opposite
lanes of traffic. The truck was still in gear, continued moving, and struck the
center barricade. Officer Thomas chased the driver and apprehended him in a
nearby parking lot.

      Meanwhile, Officer Diaz next encountered the truck when it was already in
the middle of the freeway. Appellant was now standing outside the driver’s side
while the truck was still moving. When Officer Diaz drew her gun and instructed
appellant to raise his hands, he “jumped” in the truck and sped away. With her
                                        2
lights and siren activated, Officer Diaz chased appellant as he exited the freeway,
drove for some distance on city streets, ran several red lights, and struck two
vehicles, while traveling over eighty miles per hour. Appellant finally stopped
when the truck became disabled after striking the second vehicle. Officer Diaz and
another officer, who had joined the chase, drew their guns and instructed appellant
to show his hands and get on the ground. Appellant briefly appeared as though he
intended to flee on foot and reached for something inside the truck, but he obeyed
the officers’ orders and was arrested.

      A jury found appellant guilty of the state-jail felony offense of evading
arrest or detention with a motor vehicle. After appellant pleaded “true” to two
enhancement paragraphs, the trial court assessed punishment at seven years’
confinement.

                                    II. ANALYSIS

A.    Limitation on Cross-Examination

      In his first issue, appellant contends the trial court violated appellant’s right
to confrontation under the United States Constitution by limiting his cross-
examination of Officer Diaz.       We review a trial court’s limitation of cross-
examination under the abuse-of-discretion standard. Sansom v. State, 292 S.W.3d
112, 118 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). We do not disturb
the trial court’s ruling as long as it lies within the zone of reasonable disagreement.
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).

      Appellant asserts that he sought to cross-examine Officer Diaz about
allegedly inconsistent statements she made to the Internal Affairs Division (“the
IAD”) of the Houston Police Department which would have purportedly shown she
had bias and motive to provide untruthful testimony at trial. Before appellant
                                          3
began cross-examination of Officer Diaz, appellant informed the trial court outside
the jury’s presence that the IAD statement had been the subject of a motion in
limine by the State but appellant wished to question Officer Diaz about the
statement. Appellant argued that Officer Diaz was embellishing her trial testimony
to protect fellow officers who were the subject of an IAD investigation regarding
the incident because her testimony was “completely different” than her IAD
statement. Appellant more specifically asserted that Officer Diaz reported in her
IAD statement that appellant was ultimately arrested “without any incident,”
whereas Officer Diaz testified that the officers drew their guns to effect the arrest
and appellant appeared as though he might run or obtain an object from the truck.
The trial court denied appellant’s request, remarking Officer Diaz’s testimony
“doesn’t seem totally different” than the statement.

      The State contends appellant failed to preserve error on his complaint
because he did not make an offer of proof relative to the IAD statement. Although
appellant apparently presented the statement to the trial court for its review,
appellant did not make an offer of proof by placing the statement in the record for
appellate review. The State cites Texas Rule of Evidence 103, providing that
“[e]rror may not be predicated upon a ruling which . . . excludes evidence unless . .
. the substance of the evidence was made known to the court by offer, or was
apparent from the context within which questions were asked.” Tex. R. Evid.
103(a)(2).

      The State suggests appellant is complaining about exclusion of evidence
whereas appellant expresses that he is complaining about general limitation of
cross-examination. The Court of Criminal Appeals has recognized a distinction
between a situation in which a trial court precluded a defendant from eliciting
certain specific responses from a witness and a situation in which a trial court
                                          4
precludes a defendant from questioning a witness about a certain general subject
matter that might affect the witness’s credibility. See Virts v. State, 739 S.W.2d
25, 29 (Tex. Crim. App. 1987) (en banc). When a trial court precludes a defendant
from eliciting certain specific responses from a State’s witness, the defendant
preserves error by either (1) calling the witness to the stand outside the presence of
the jury and having the witness answer specific questions or (2) making an offer of
proof on questions he would have asked and answers he expected to receive. See
id.; Koehler v. State, 679 S.W.2d 6, 9 (Tex. Crim. App. 1984) (en banc); Stults v.
State, 23 S.W.3d 198, 203–04 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).
However, when a trial court precludes a defendant from questioning a State’s
witness in the presence of the jury about an entire subject matter that might have
affected her credibility, such as malice, ill will, motive, or bias, the defendant
preserves error by stating the subjects on which he intends to question the witness
and, if challenged, demonstrating why the evidence should be admitted. See Virts,
739 S.W.2d at 29; Koehler, 679 S.W.2d at 9; Stults, 23 S.W.3d at 204.

      Although appellant uses the terms “bias” and “motive,” the gist of his
contention is that Officer Diaz’s IAD statement and trial testimony were
inconsistent.   In particular, appellant apparently does not contend that the mere
fact that fellow officers were the subject of an IAD investigation and Officer Diaz
provided a statement to the IAD demonstrated bias or motive to embellish her trial
testimony. To the extent appellant makes such a complaint, the trial court did not
abuse its discretion by determining that these facts alone were insufficient to show
Officer Diaz may have been untruthful at trial.

      Rather, appellant sought to cross-examine Officer Diaz regarding the
contents of her statement. However, it is unclear whether appellant sought to elicit
certain, specific responses from Officer Diaz or generally cross-examine her about
                                          5
the contents of the statement. Arguably, appellant’s request falls under the former
category because he presumably sought to have Officer Diaz admit she made
certain statements to the IAD so that appellant could then argue her statements
were inconsistent with her trial testimony.              Regardless, under either scenario,
appellant preserved error regarding, at most, only one portion of the statement—in
which Officer Diaz allegedly reported that the officers ultimately arrested appellant
“without any incident”; that is the only portion for which the contents are reflected
in the record. Without appellant making an offer of proof by presenting the entire
statement or articulating the contents of any other portions, we cannot determine
whether the trial court abused its discretion by denying appellant’s request to
question Officer Diaz about any other portions.1



       1
          In his appellate brief, appellant requests that we “grant a motion to have the trial court
produce the IAD investigation for [our] review . . . .” However, appellant cites no authority
authorizing such an order, assuming the trial court even retained the statement, and the Rules of
Appellate Procedure governing supplementation of the record are inapplicable in this situation.
If a relevant item is omitted from the clerk’s or reporter’s record, we may order the clerk or court
reporter, respectively, to file a supplemental record containing the omitted item. See Tex. R.
App. P. 34.5(c)(1), 34.6(d). However, these rules cannot be used to create a new record and
apply only to items that were part of the trial record but not forwarded to the court of appeals.
See LaPointe v. State, 225 S.W.3d 513, 522 (Tex. Crim. App. 2007). In the present case, the
IAD statement was not part of the trial record in the first place because appellant did not make an
offer of proof. In contrast, Rule 44.4 is designed to effect creation of a new record. See id.; see
also Tex. R. App. P. 44.4 (providing that court of appeals must not affirm or reverse judgment if
the trial court’s erroneous action or failure or refusal to act prevents proper presentation of case
to court of appeals and trial court can correct its action or failure to act). For instance, we may
order the trial court to correct its error if it has prevented the defendant from submitting
information necessary to evaluate his appellate claim, such as refusing to permit an offer of
proof. See LaPointe, 225 S.W.3d at 522. The key to Rule 44.4 is that there must be an error that
the appellate court can correct. Id. In the present case, there was no trial court error causing
omission of the IAD statement from the record because the trial court did not preclude appellant
from making an offer of proof. Rather, appellant did not attempt to make an offer of proof
relative to the entire statement. Accordingly, we lack authority to order the trial court to place
the IAD statement in the record as though it had been the subject of a proper offer of proof.

                                                 6
         We conclude the trial court did not abuse its discretion by precluding
appellant from questioning Officer Diaz regarding the above-cited portion of her
statement. Appellant suggests that Officer Diaz’s statement that the ultimate arrest
of appellant “without any incident” was inconsistent with Officer Diaz’s testimony
that (1) the officers drew their guns to arrest appellant and (2) appellant acted as
though he might obtain an object from the truck or attempt to leave. However, the
trial court acted within its discretion by concluding the arrest was “without any
incident” despite the officers drawing guns because such procedure was routine in
light of the chase that had just ensued. Similarly, the trial court acted within its
discretion by concluding the arrest was “without any incident” despite Officer
Diaz’s testimony that appellant acted as though he might obtain an object from the
truck or attempt to leave because he did not actually take any such actions and
complied with the officers’ instructions. Accordingly, we overrule appellant’s first
issue.

B.       Request for Article 38.23 Instruction

         In his second issue, appellant contends that the trial court erred by denying
appellant’s request for a jury instruction pursuant to Texas Code of Criminal
Procedure article 38.23, which provides in pertinent part:

          (a) No evidence obtained by an officer or other person in violation of
         any provisions of the Constitution or laws of the State of Texas, or of
         the Constitution or laws of the United States of America, shall be
         admitted in evidence against the accused on the trial of any criminal
         case.
         In any case where the legal evidence raises an issue hereunder, the
         jury shall be instructed that if it believes, or has a reasonable doubt,
         that the evidence was obtained in violation of the provisions of this
         Article, then and in such event, the jury shall disregard any such
         evidence so obtained.

                                            7
Tex. Code Crim. Proc. Ann art. 38.23(a) (West 2005).

      At trial, appellant requested submission of the following jury instruction
pursuant to article 38.23(a):

      You are instructed that no evidence obtained by an officer or other
      person in violation of any provision of the Constitution or laws of the
      State of Texas or the Constitution or laws of the United States of
      America shall be admitted in evidence against the accused on trial of
      any criminal case.

      You are further instructed that our law permits the stop or detention
      and search of a person by a peace officer without a warrant only when
      probable cause exists to believe that an offense against the laws of this
      state or of the United States has been violated. An officer is permitted
      to make an arrest of a motorist if the officer has probable cause to
      believe the motorist has committed or is committing an offense.

      You are instructed that when a person is stopped by a police officer
      that’s under arrest you are further instructed that there must be
      probable cause for this stop and arrest. Unless there is probable cause
      the arrest is illegal. Under the laws of this State no evidence gained in
      violation of any law may be used against a person at his trial.

      By the term probable cause as used herein is meant where the facts
      and circumstances within the officer’s knowledge and of which he has
      reasonable trustworthy information are sufficient unto themselves to
      warrant a man of reasonable caution to believe that an offense has
      been or is being committed.

      You are further instructed that before an officer has the right to make
      a temporary investigative detention of a defendant the officer must
      have a reasonable suspicion that the defendant is connected with some
      criminal activity that is or has occurred.

      Now, therefore bearing in mind the foregoing instructions, if you find
      from the evidence beyond a reasonable doubt that [appellant] was
      stopped by Officer Diaz, a Houston police officer, for suspicion of
      theft, and you further find beyond a reasonable doubt that there was
                                         8
      probable cause for the arrest of [appellant], then you may consider the
      evidence obtained as a result of this arrest. But if you do not so find
      beyond a reasonable doubt that there was probable cause for the arrest
      of [appellant] for suspicion of theft, then you will wholly disregard all
      the evidence gained as a result of the arrest and not consider it as any
      evidence whatsoever.

      Apparently, appellant contends he was entitled to an instruction pursuant to
article 38.23(a) because the evidence raised an issue on whether the officers were
attempting to lawfully arrest or detain him. However, article 38.23(a) is wholly
inapplicable in the present case.      A defendant’s right to submission of an
instruction under article 38.23(a) “is limited to disputed issues of fact that are
material to his claim of a constitutional or statutory violation that would render
evidence inadmissible.” Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim.
App. 2007) (emphasis added). Appellant does not cite any evidence he sought to
exclude from the jury’s consideration as a result of any allegedly unlawful
detention or arrest. Instead, whether the officers were attempting to lawfully arrest
or detain appellant was an element of the charged offense. See Tex. Penal Code
Ann. § 38.04(a) (West Supp. 2012) (providing that a person commits the offense of
“Evading Arrest or Detention” if he “intentionally flees from a person he knows is
a peace officer . . . attempting lawfully to arrest or detain him.”). Appellant cites
no authority demonstrating that, pursuant to article 38.23(a), he was entitled to an
instruction regarding legality of an arrest or detention relative to defining an
element of the offense of evading arrest or detention. Therefore, the trial court did
not err by refusing to submit appellant’s requested instruction.        We overrule
appellant’s second issue.




                                         9
C.    Language in the Jury Charge

      In his third issue, appellant contends the trial court included improper
language in the application paragraphs of the jury charge.

      Under section 38.04(a), a person commits the offense at issue if he evades
arrest or detention. See id. In the indictment, the State alleged only that appellant
fled from a police officer attempting to “detain” him. In the application paragraphs
of the jury charge, the trial court used only the term “detain” when referencing the
elements of the offense, but the trial court also referred to the title of the offense as
“evading arrest or detention”:

      Now, if you find from the evidence beyond a reasonable doubt that . .
      . [appellant] did then and there unlawfully, intentionally flee from J.
      Diaz, a peace officer employed by Houston Police Department,
      lawfully attempting to detain [appellant], and [appellant] knew that J.
      Diaz was a peace officer attempting to detain [appellant], and
      [appellant] used a motor vehicle while he was in flight, then you will
      find [appellant] guilty of felony evading arrest or detention, as
      charged in the indictment.

      Unless you so find from the evidence beyond a reasonable doubt, or if
      you have a reasonable doubt thereof, or if you are unable to agree, you
      will next consider whether [appellant] is guilty of the lesser offense of
      misdemeanor evading arrest or detention.

      Therefore, if you find from the evidence beyond a reasonable doubt
      that . . . [appellant], did then and there unlawfully, intentionally flee
      from J. Diaz, a peace officer employed by Houston Police
      Department, lawfully attempting to detain [appellant], and [appellant]
      knew that J. Diaz was a peace officer attempting to detain [appellant],
      then you will find [appellant] guilty of misdemeanor evading arrest or
      detention.

      If you believe from the evidence beyond a reasonable doubt that
      [appellant] is guilty of either felony evading arrest or detention on the
                                           10
       one hand or misdemeanor evading arrest or detention on the other
       hand, but you have a reasonable doubt as to which of said offenses he
       is guilty, then you must resolve that doubt in [appellant’s] favor and
       find him guilty of the lesser offense of misdemeanor evading arrest or
       detention.2

(emphasis added).

       Appellant argues the trial court erred by referring to the offense as “evading
arrest or detention” because he was indicted only for evading detention. However,
appellant failed to object at trial on this ground. Thus, he may obtain reversal only
by demonstrating “egregious harm”—error that affects “the very basis of the case,”
deprives the defendant of a “valuable right,” or “vitally affect[s] a defensive
theory.” See Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006).3
       Appellant has not demonstrated any error, much less egregious harm. When
instructing the jury on the elements it must find for conviction, the trial court used
only the term “detain” and not the term “arrest,” consistent with the indictment.
The trial court included the “arrest” language only when referencing the title of the
offense, as emphasized in the above-quoted paragraphs. The trial court did not err
by referring to the correct title of the offense while also limiting the jury to

       2
         The trial court permitted submission of the misdemeanor offense, which did not require
use of a motor vehicle, as a lesser included offense.
       3
          The State contends that appellant invited the alleged error of which he now complains.
See Woodall v. State, 336 S.W.3d 634, 644 & n.12 (Tex. Crim. App. 2011) (stating that, under
the law of invited error, a party is estopped from seeking appellate relief based on an error he
induced by affirmatively seeking such action from the trial court). At trial, when the parties
addressed the abstract portion of the charge, appellant specifically requested that the definition of
the offense include the term “arrest,” to track the applicable statute, after first requesting that
“arrest” be omitted Then, when appellant requested submission of the misdemeanor offense and
other application language that the trial court denied, his requested submissions included the
term “arrest.” We do not decide whether appellant invited the alleged error; appellant, at least,
failed to object to the application paragraphs on the ground raised on appeal and therefore must
show egregious harm.
                                                 11
determining the elements of the offense as charged in the indictment; i.e., the trial
court correctly stated that a finding appellant fled from an officer attempting to
“detain” him supports a conviction for the offense of “Evading Arrest or
Detention.” (emphasis added). Even if the trial court erred by including “arrest”
when referencing the title of the offense, appellant has not shown egregious harm
because, again, the court correctly instructed the jury on the elements it must find
for conviction, consistent with the indictment.                 Accordingly, we overrule
appellant’s third issue.

      We affirm the trial court’s judgment.




                                                    /s/    Margaret Garner Mirabal
                                                           Senior Justice

Panel consists of Justices Boyce, McCally, and Mirabal.4
Do Not Publish — Tex. R. App. P. 47.2(b).




      4
          Senior Justice Margaret Garner Mirabal sitting by assignment.
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