Opinion issued October 4, 2018




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-17-00814-CR
                            ———————————
                   CHRISTOPHER CORDAWAY, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                On Appeal from the County Court at Law No. 2
                          Galveston County, Texas
                     Trial Court Case No. MD-373589


                          MEMORANDUM OPINION

      Christopher Cordaway appeals from his judgment of conviction for resisting

arrest. He contends in a single issue that the trial court erred in excluding evidence

that a chokehold applied by the arresting officer could have been fatal. Because

Cordaway failed to preserve this issue for review, we affirm.
                                 BACKGROUND

      Cordaway was tried for the misdemeanor offense of resisting arrest. See TEX.

PENAL CODE § 38.03(a). A jury found him guilty and the trial court assessed his

punishment at one year of confinement in the county jail.

      At trial, the defense argued that Cordaway had acted in self-defense, because

he resisted the arresting officer only after the officer used greater force than

necessary to make the arrest, including a chokehold.         See TEX. PENAL CODE

§ 9.31(c). In support of this defense, defense counsel questioned the arresting officer

about his use of a chokehold to subdue Cordaway:

      Q.         Is that when you jumped on him and put him in the rear
                 chokehold?
      A.         No, ma’am.
      Q.         So, what is a rear chokehold? Can you kind of describe that
                 for us?
      A.         So when you’re on your back like that or on the front, it
                 depends; you’re on their back, and you’ve got your arm
                 wrapped around their chest and neck area.
      Q.         That could apply a dangerous amount of pressure to
                 somebody’s throat, could it not?
      A.         It could.
      Q.         In fact, are you familiar with the case in Harris County where
                 somebody died as a result of a chokehold?
      [State]:   Judge, I object to relevance.
      [Court]: Sustained.
      Q.         That could be lethal if applied incorrectly; would you agree?
      [State]:   Judge, again, relevance.

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[Court]: Sustained.
Q.       Is there any danger of applying pressure in that—you just
         described—I’m sorry. For purposes of the record, you had
         his arm going from one shoulder to the other. Is there any
         danger, while in that chokehold, that it could impede
         somebody’s airway?
A.       Yes.
Q.       Okay. And is it not true that while my client was in that
         chokehold, that he was yelling, Help me, help me?
A.       I didn’t hear him say that.
Q.       And isn’t it also true—
A.       And he also wasn’t in a chokehold.
Q.       I’m sorry. I just asked. Let’s start over, then.
A.       Okay. Sorry.
Q.       I just asked you what a rear chokehold was.
A.       Uh-huh. I didn’t have my arm directly across his neck the
         entire time.
Q.       Okay. I think I wrote this down right. Let me check my work
         here. I heard on the video that you were telling the other
         officers, while laughing, that you jumped on his back and
         placed him in a rear choke; that’s what I heard.
A.       Yes, ma’am.
Q.       So is that the same as a rear chokehold?
A.       Yeah, same thing.
Q.       Okay. And again, is that where you could possibly have your
         arm across somebody’s neck?
A.       Yes, ma’am.
Q.       So by the physical nature of a chokehold, the name says it
         all, right?
A.       Uh-huh.


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      Q.            It could choke somebody?
      A.            Yes, it could.

Defense counsel recalled the arresting officer to the stand outside of the presence of

the jury to make an offer of proof, but counsel did not question the officer further

about chokeholds.

                                     DISCUSSION

      Cordaway contends that the trial court erred in sustaining the State’s second

relevancy objection concerning the potential lethalness of chokeholds, which

prevented him from further developing the defense that the officer used more force

than necessary to arrest him. The State contends that Cordaway did not preserve this

issue for review.

      A.     Applicable law

      To preserve error as to the exclusion of evidence, a party must make an offer

of proof that informs the trial court of the substance of the excluded evidence, unless

its substance is apparent from context. TEX. R. EVID. 103(a); Mays v. State, 285

S.W.3d 884, 889 (Tex. Crim. App. 2009). A party may make the offer either by

presenting testimony through question and answer or by stating a concise and

reasonably specific summary of the evidence and the reasons for its relevance.

Holmes v. State, 323 S.W.3d 163, 168 (Tex. Crim. App. 2009). The offer serves two

purposes: it gives a trial court the opportunity to reconsider its ruling in light of the


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proffered evidence and it enables an appellate court to decide whether the exclusion

of the evidence was erroneous and harmful. Id.

      To preserve error when, as here, the excluded testimony does not concern a

witness’s character for truthfulness, the party must show that his cross-examination

would have affirmatively established the facts sought. See Holmes, 323 S.W.3d at

170; see also Mays, 285 S.W.3d at 891 (offer must include “the meat of the actual

evidence” rather than a general, cursory summary). In other words, the party’s offer

of proof must not only convey the question that counsel wished to ask, it must show

that the witness would have given the desired answer. See, e.g., Roberts v. State,

220 S.W.3d 521, 532 (Tex. Crim. App. 2007) (error not preserved because defendant

did not make offer of proof as to what witness’s testimony would have been).

      B.     Analysis

      Cordaway’s lawyer asked the arresting officer whether a chokehold could be

lethal if incorrectly applied. The State objected on the ground of relevance, and the

trial court sustained the objection. Cordaway did not make an offer of proof as to

how the arresting officer would have answered defense counsel’s question.

      An offer of proof as to a witness’s answer to a question is not necessary to

preserve error if the surrounding context shows what his testimony would have been,

such as when other portions of the record clarify how the witness would have

answered. For example, in Mai v. State, 189 S.W.3d 316 (Tex. App.—Fort Worth


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2006, pet. ref’d), defense counsel tried to ask a law enforcement officer whether

there had been a criminal investigation of the officer’s conduct but did not make an

offer of proof as to the officer’s anticipated answer after the trial court ruled that the

investigation was irrelevant. See id. at 322. The court of appeals nonetheless held

that any potential error in failing to allow this inquiry was preserved for review

because the record showed that such an investigation had taken place and that the

officer consequently could only have answered in the affirmative. See id.

      The same cannot be said of the arresting officer’s testimony here. On appeal,

Cordaway simply assumes that the officer would have conceded the potential

lethality of an incorrectly applied chokehold. The record, however, does not indicate

how the officer would have answered. He conceivably could have answered in the

affirmative. He also could have offered any number of more qualified responses,

such as “yes, but subject to certain caveats,” “possibly, depending on how the hold

is applied,” or “not under these circumstances, no.” On this record, we can do no

more than speculate as to what the officer would have said, which would be

improper; we cannot speculate about his testimony and then find error based on our

speculation. See Duke v. State, 365 S.W.3d 722, 726 (Tex. App.—Texarkana 2012,

pet. ref’d). Without knowing how the arresting officer would have answered, we

cannot assess whether the exclusion of his answer was erroneous or harmful,

especially in light of his further testimony that a chokehold can be dangerous and


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can impede breathing. See Holmes, 323 S.W.3d at 168; see also Stewart v. State,

686 S.W.2d 118, 122 (Tex. Crim. App. 1984) (court couldn’t review merits of

complaint about exclusion of evidence given that record did not show what witness’s

testimony would have been).

      Accordingly, because Cordaway did not make an offer of proof as to how the

arresting officer would have answered defense counsel’s question and the officer’s

answer is not apparent from context, Cordaway has not preserved this issue for our

review. See Roberts, 220 S.W.3d at 532; see also Mims v. State, 434 S.W.3d 265,

271–72 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (error not preserved as

defendant did not make offer of proof as to how witnesses would have answered his

lawyer’s questions); Watts v. State, 371 S.W.3d 448, 462–64 (Tex. App.—Houston

[14th Dist.] 2012, no pet.) (error not preserved as defendant did not make offer of

proof as to trooper’s testimony and it was not apparent from context that trooper

would have given testimony that defense counsel sought to elicit); Garza v. State,

846 S.W.2d 936, 939 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d) (error not

preserved where defendant did not make offer of proof as to how officer would have

answered question and officer’s answer was not apparent from context).




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                                 CONCLUSION

      We affirm the judgment of the trial court.




                                               Jane Bland
                                               Justice

Panel consists of Justices Keyes, Bland, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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