Affirmed and Memorandum Opinion filed June 9, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00123-CR

                       IVAN OSUNA-AYUSTE, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

             On Appeal from County Criminal Court at Law No. 3
                           Harris County, Texas
                       Trial Court Cause No. 1917708

                 MEMORANDUM                       OPINION


      A jury convicted appellant Ivan Osuna-Ayuste of assault of a family
member. The trial court sentenced appellant to 310 days in jail. From that
judgment, he brings this appeal challenging the trial court’s denial of his request to
recall a witness. Because appellant did not preserve his challenge by making an
offer of proof, we affirm.
                                        BACKGROUND

         Appellant and his fiancée, the complainant, had an altercation in a hospital
parking lot. Renee Roberts witnessed appellant assault the complainant, and she
assisted the complainant. The police were called and Officer Selwyn Thomas was
dispatched to the scene. Appellant was subsequently charged with assault of a
family member. The jury found appellant guilty and he was sentenced by the trial
court.

                                       ANALYSIS

         In his sole issue on appeal, appellant asserts the trial court erred by denying
his request to recall Officer Thomas. Appellant asserts Thomas’s testimony was
necessary to impeach Roberts with a prior inconsistent statement—specifically,
what she told Thomas at the scene of the offense as recounted in his police report.
The State responds that error was not preserved. We agree.

         The record reflects Thomas was the first witness to testify. He was not asked
any questions on direct or cross-examination concerning Roberts, and his
testimony never referred to Roberts.            Defense counsel stated he had “[n]o
objection” to excusing Thomas. Roberts then testified, stating that appellant
“tackled” the complainant and “came down on top of her.” She testified that
appellant then “struck [the complainant] with his right hand on her face.”

         After Roberts testified, the State rested its case. Two witnesses testified for
the defense, and then counsel asked to recall Thomas. Defense counsel argued as
follows:

         Judge, upon hearing the testimony of Renee Roberts, she testified
         from – that she did see the defendant strike and hit the complaining
         witness, but the police report that was prepared by Officer Thomas
         states otherwise.

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      It states here that Officer Thomas talked to Witness Roberts who
      advised that she did not see Osuna-Ayuste hit and strike Friedley, but
      she did hear her yelling for help and saw Osuna-Ayuste throw
      Friedley on the ground.
      ...
      And because her testimony is different than what she may have told
      Officer Thomas in the police report, that is why I am requesting that
      he be recalled as a witness.
The State countered, “What she said was that he did not strike her first -- excuse
me -- he did not strike her first, but she saw him throw her to the ground and then
strike her. That is -- that is not contradictory to what is in the report.” The trial
court denied defense counsel’s request to recall Officer Thomas.

      We interpret a complaint that the trial court refused to allow defense counsel
to recall a witness for further cross-examination as being predicated on exclusion
of evidence. See Watts v. State, 371 S.W.3d 448, 463 (Tex. App.—Houston [14th
Dist.] 2012, no pet.); see also Love v. State, 861 S.W.2d 899, 903 (Tex. Crim. App.
1993); Craig v. State, 594 S.W.2d 91, 96 (Tex. Crim. App. 1980) (panel op.) (if the
trial court declines to permit the defendant to recall a State’s witness for further
cross-examination, any error will not call for reversal if the offer of proof fails to
show what defendant expected to prove by his cross-examination). To preserve
error regarding a trial court’s decision to exclude evidence, the complaining party
must comply with Rule 103 of the Texas Rules of Evidence by making an “offer of
proof” setting forth the substance of the evidence. Watts, 371 S.W.3d at 463–64
(citing Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009), and Tex. R.
Evid. 103(a)(2)). It is the defendant’s burden to make a record of the evidence he
desires admitted. Montgomery v. State, 383 S.W.3d 722, 726 (Tex. App.—Houston
[14th Dist.] 2012, no pet.). The offer of proof may consist of a concise statement
by counsel or be in question-and-answer form. Mays, 285 S.W.3d at 889. A

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statement ‘“must include a reasonably specific summary of the evidence offered
and must state the relevance of the evidence unless the relevance is apparent, so
that the court can determine whether the evidence is relevant and admissible.”’ Id.
at 889–90 (quoting Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998)). The
primary purpose of an offer of proof is to allow this Court to decide whether the
exclusion was erroneous and harmful. Id. at 890.

      Appellant’s counsel made a general statement to the effect that he wanted to
introduce evidence showing Roberts’s trial testimony differed from what she told
Thomas at the scene of the offense.          According to the State, Roberts’s trial
testimony did not vary from Thomas’s report. The record before this Court does
not contain the offense report. Appellant’s counsel did not ask to make a bill of
exception, nor did he tender the report as an offer of proof to make a record for
purposes of appeal. We therefore cannot determine whether there was in fact any
discrepancy or whether any harm resulted from the trial court’s denial of counsel’s
request to recall Thomas. Accordingly, we hold appellant failed to preserve any
error for our review. We overrule appellant’s sole issue and affirm the trial court’s
judgment.




                                       /s/       J. Brett Busby
                                                 Justice



Panel consists of Justices Jamison, Busby, and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).




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