                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                 §
 HERBERT RICHARD ATKINS,                                         No. 08-13-00113-CR
                                                 §
                             Appellant,                            Appeal from the
                                                 §
 v.                                                           County Court at Law No. 1
                                                 §
 THE STATE OF TEXAS,                                           of Parker County, Texas
                                                 §
                             Appellee.                           (TC# CCLl-12-0084)
                                                 §

                                          OPINION

       Herbert Richard Atkins appeals his conviction of interference with an emergency phone

call. See TEX. PENAL CODE ANN. § 42.062 (West Supp. 2014). A jury found Appellant guilty

and the court assessed punishment at a fine of $500 and confinement in the county jail for 365

days, probated for 24 months. We affirm.

                                      OFFER OF PROOF

       In his sole issue, Appellant asserts that “[t]he trial court abused its discretion by denying

Appellant’s absolute right to make an offer of proof regarding excluded evidence.” He relies on

Rule 103(c) of the Texas Rules of Evidence and cases applying that rule.

       Deputy Eric Lee and Deputy William Kirk responded to a domestic disturbance call

involving Appellant. Lee was the primary deputy on the case. During cross-examination, Kirk

testified that he had reviewed Lee’s report as well as his own report prior to testifying. Lee did
not testify at trial. When Appellant asked Kirk whether Lee was still employed with the Sheriff’s

Office, Kirk replied that Lee had been terminated. When Appellant asked Kirk why Lee left the

Sheriff’s Office, the State raised a relevance objection and the trial court sustained that objection.

Appellant asked the court for the opportunity to make an offer of proof regarding that issue and the

trial judge asked Kirk, in the jury’s presence, if he knew why Lee was terminated. Kirk replied

that he did and testified that it was because Lee was “showing up late to work.” Although the trial

court ruled that “showing up late for work” was not relevant to the case, the court did not strike

Kirk’s testimony. Appellant then asked Kirk if there were any other reasons and he replied, “Not

that I know of.”

       After the State rested and outside of the jury’s presence, Appellant’s attorney announced

that he had issued a subpoena for Meredith Gray, the custodian of records at the Sheriff’s Office, to

bring the employment, disciplinary, and complete personnel file of Deputy Lee, and Gray was

refusing to turn over the records to counsel. Appellant’s attorney stated, “I think we have a right

to see why the lead deputy was fired.” The prosecutor responded that the personnel files were

irrelevant and he would like to have an opportunity to file a motion for a protective order. The

trial judge did not rule on the State’s request and he instead asked Gray come into the courtroom

where she was sworn as a witness. The court then stated that the only thing the attorneys needed

to know is why Lee lost his job and he asked Ms. Gray to review the records to determine if there

was anything in the records regarding the reason for termination.           Ms. Gray subsequently

explained that Lee “was terminated at will” and no reason was given in the termination paperwork.

The trial court additionally asked her if there were any complaints in the file regarding Lee not

being truthful “or anything else that would be used in the defense of a criminal case.” She replied:


                                                -2-
“Not to my knowledge, Your Honor. Not anything regarding truthfulness. I haven’t, of course,

looked at every document. I don’t recall there being anything like that in his history.” The trial

judge stated that he knew Ms. Gray and found her representations about the file to be credible.

The judge then ruled that he would not “allow any further review” of the deputy’s personnel file.

At that point, Appellant asked that the entire personnel record be marked as an exhibit for purposes

of appeal. The trial court denied that request.

       Rule 103(a)(2) provides that error may not be predicated upon a ruling which admits or

excludes evidence unless a substantial right of the party is affected, and where the ruling is one

excluding evidence, the substance of the evidence was made known to the court by offer, or was

apparent from the context within which questions were asked. See TEX.R.EVID. 103(a)(2). Rule

103(c) provides, in pertinent part, as follows:

       The court must allow a party to make an offer of proof outside the jury’s presence
       as soon as practicable--and before the court reads its charge to the jury. The court
       may make any statement about the character or form of the evidence, the objection
       made, and the ruling. At a party’s request, the court must direct that an offer of
       proof be made in question-and-answer form. Or the court may do so on its own.

Appellant was permitted to introduce through the testimony of Deputy Kirk evidence that Deputy

Lee was fired for being late to work. Because the trial court did not exclude Deputy Kirk’s

testimony on the subject, Appellant was not entitled to make an offer of proof based on Deputy

Kirk’s testimony.

       Turning to the issue of the subpoena duces tecum for Lee’s personnel file and Ms. Gray’s

testimony, Appellant’s sole complaint in the trial court was that the custodian of the records was

refusing to turn over the records to defense counsel. Appellant’s objection that he had “a right to

see why the lead deputy was fired” was a complaint regarding Ms. Gray’s denial of access to the


                                                  -3-
personnel file. It is not an offer of evidence. Consequently, the trial court’s refusal to grant

Appellant access to the personnel file is not an exclusion of evidence and did not trigger

Appellant’s right to make an offer of proof under Rule 103(c).

        Appellant’s brief does not state any other basis which would authorize the Court to order

the trial court to make a confidential personnel file part of the public record in this case, but we

have considered whether there is some other authority which would support Appellant’s claim of

error. As noted above, Appellant objected that he had “a right to see why the lead deputy was

fired.” Appellant does not raise any issue on appeal complaining about the trial court’s review of

the file. See Proctor v. State, 319 S.W.3d 175, 184 (Tex.App.--Houston [1st Dist.] 2010, pet.

struck)(appellate court reviews a trial court’s denial of a request for an in camera review of

putative Brady information for an abuse of discretion); Page v. State, 7 S.W.3d 202, 207-08

(Tex.App.--Fort Worth 1999, pet. ref’d)(en banc)(same). On appeal, Appellant argues that he is

harmed by the trial court’s refusal to make the personnel file part of the appellate record because

review of the file might show that the deputy’s termination “was influenced by his performance in

the investigation into this case.” Implicit in this argument is an assertion that the trial court erred

by refusing to grant Appellant access to the personnel file in the first place or the court erred by not

conducting its own review of the personnel file. If Appellant did not preserve these complaints or

the complaints are without merit, any error arising from the trial court’s refusal to make the

personnel file part of the appellate record is harmless and abating the appeal in order for the

personnel file to be made part of the record is unnecessary.

        A defendant in a criminal case has no general right to pretrial discovery of evidence in the

State’s possession. See Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 846, 51 L.Ed.2d


                                                 -4-
30 (1977); Pena v. State, 353 S.W.3d 797, 809 n.10 (Tex.Crim.App. 2011); see In re State, 162

S.W.3d 672, 676 (Tex.App.--El Paso 2005, orig. proceeding). Limited discovery is provided for

by Article 39.14. See TEX.CODE CRIM.PROC.ANN. art. 39.14 (West Supp. 2014).1 Further, the

State is obligated to turn over to the defendant exculpatory evidence that is within the custody or

control of the State. See Brady v. Maryland, 373 U.S. 83, 86, 83 S.Ct. 1194, 1196, 10 L.Ed.2d

215 (1963). The defendant’s right to due process is violated if he does not obtain, upon request,

favorable evidence in the State’s possession where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution. Brady, 373 U.S. at 87,

83 S.Ct. at 1196-97.

         The clerk’s record does not reflect that Appellant filed a Brady motion. Instead, he filed

an application for a subpoena duces tecum directed to the custodian of Deputy Lee’s complete

personnel file. See TEX.CODE CRIM.PROC.ANN. art. 24.02 (West 2009)(“If a witness have in his

possession any instrument of writing or other thing desired as evidence, the subpoena may specify

such evidence and direct that the witness bring the same with him and produce it in court.”).

Several courts have noted that a subpoena duces tecum may not be used as a discovery weapon, but

as an aid to discovery based upon a showing of materiality and relevance. Ealoms v. State, 983

S.W.2d 853, 859 (Tex.App.--Waco 1998, pet. ref’d); Reece v. State, 878 S.W.2d 320, 326

(Tex.App.--Houston [1st Dist.] 1994, no pet.); Cruz v. State, 838 S.W.2d 682, 686

(Tex.App.--Houston [14th Dist.] 1992, pet. ref’d).


1
   In 2013, the Legislature added a provision to Article 39.14 which requires the State to disclose to the defendant any
exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the
state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.
TEX.CODE CRIM.PROC.ANN. art. 39.14(h)(West Supp. 2014). This change to Article 39.14 applies “to the
prosecution of an offense committed on or after the effective date [January 1, 2014] of this Act.” Act of May 14,
2013, 83rd Leg., R.S., ch. 49, § 3, 2013 Tex.Gen.Laws 106, 108. Because the offense in this case occurred on August
21, 2011, Article 39.14(h) is inapplicable.
                                                         -5-
        Since the trial court proceeded without permitting the State to file a motion for a protective

order, the record does not reflect whether the deputy’s personnel file is privileged. 2                       The

personnel file, or at least portions of it, is certainly confidential. See TEX.GOV’T CODE ANN. §

552.102(a)(West 2012). Even if a file or document is not privileged or confidential, Appellant

does not have a right to conduct his own review of the file for Brady material. See Pennsylvania

v. Ritchie, 480 U.S. 39, 59-60, 107 S.Ct. 989, 1002, 94 L.Ed.2d 40 (1987). The burden rests on

the trial court to determine, upon request, whether or not a file or document in the State’s

possession contains Brady evidence by conducting an in camera inspection of the requested

information. See Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97 (emphasis added).

        Appellant never asked the trial court to conduct an in camera inspection of the complete

personnel file. Upon learning of the dispute about the personnel file, the trial judge swore the

custodian of the records as a witness and questioned her about the file. Appellant did not object to

the trial court conducting the examination of the witness. The trial court asked the custodian of

the records whether the file reflected the reason for the deputy’s termination. It is clear from the

discussion on the record that the court understood that to be the information Appellant was seeking

from the file and Appellant never suggested otherwise. The custodian responded under oath that

the documents related to the deputy’s termination gave no reason for his termination because he

was an employee at will. When the witness indicated she had not read every document in the file,

Appellant still did not ask the trial court to conduct an in camera review of the file to determine

whether it contained any evidence relevant to the reason for the deputy’s termination or other

Brady material. Appellant asserts for the first time on appeal that the file might show that the

2
   The personnel file of a municipal fire fighter or police officer is privileged. See TEX.LOCAL GOV’T CODE ANN. §
143.089 (West 2008). This statute is inapplicable to the deputy but some other basis for a claim of privilege could
exist.
                                                       -6-
deputy’s termination “was influenced by his performance in the investigation into this case.” He

did not, however, indicate to the trial court that he sought that specific information and he did not

ask the court to look through the file for that information. Given Appellant’s failure to ask the

trial court to conduct an in camera inspection of the personnel file and his acquiescence to the

procedure employed by the trial court, we conclude that he waived any issue he might raise

regarding the trial court’s review of the file. Consequently, the trial court’s refusal to admit the

file for purposes of the appellate record is harmless and it is unnecessary to abate this appeal in

order for the confidential personnel file to be made part of the appellate record. For these reasons,

we overrule the sole issue presented and affirm the judgment of the trial court.



                                              ANN CRAWFORD McCLURE, Chief Justice

June 3, 2015

Before McClure, C.J., Rodriguez, J., and Larsen, J. (Senior Judge)
Rodriguez, J., dissenting
Larsen, J. (Senior Judge), sitting by assignment

(Do Not Publish)




                                                -7-
