                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00096-CR


JAMES MICHAEL TESI                                                 APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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      A jury convicted Appellant James Michael Tesi of aggravated assault of a

public servant with a deadly weapon and assessed his punishment at thirty-five

years’ confinement. The trial court sentenced him accordingly. In four points,

Appellant argues that the trial court’s denial of his right to obtain and cross-

examine a witness deprived him of his right to present a defense, that the
      1
      See Tex. R. App. P. 47.4.
prosecutor’s jury argument was so inflammatory as to be incurable and violated

Appellant’s constitutional right to a fair trial and effective counsel, that the trial

court abused its discretion by excluding the police report he offered, and that the

cumulative impact of the above alleged errors was so great that reversal is

required. Because Appellant has failed to preserve any of his complaints for

appellate review, we affirm the trial court’s judgment.

Statement of Facts

      Officer John Fossett testified that on July 21, 2011, he was driving a

marked police vehicle to the Keller Police Department to deliver paperwork. On

the way, he saw Appellant sitting at a stop sign to exit a subdivision. Officer

Fossett recognized Appellant and Appellant’s vehicle.        Officer Fossett was a

warrant officer and believed that Appellant had outstanding warrants. Officer

Fossett called for backup and began following Appellant.             At some point,

Appellant turned into a business park. As Appellant approached the back of the

business park, he sped up.       Officer Fossett turned on his emergency lights.

Appellant continued to drive and turned into a subdivision.          Officer Fossett

passed him, got in front of his vehicle, and slowed down. Appellant drove around

Officer Fossett and kept going. Appellant drove to his house in Hurst, Texas,

turned into his driveway, and pulled into his garage.

      Officer Fossett got out of his vehicle with his weapon in his hand, pointed

down. He walked quickly up to the garage and saw Appellant still in his truck,

with the door open less than a foot. Officer Fossett told Appellant that he was


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under arrest, and Appellant kicked the door further open.          When he did so,

Officer Fossett saw a gun on Appellant’s lap. Officer Fossett told Appellant to

drop the gun, at which point Appellant picked up the gun and pointed it at Officer

Fossett. Appellant and Officer Fossett exchanged fire; Officer Fossett was not

sure who fired first. Officer Fossett took cover. They both fired more shots.

Appellant, who had been shot in the leg, surrendered.

      Appellant sought to introduce Officer Fossett’s police report for the incident

during his cross-examination of the officer. The State objected that the report

was hearsay. The trial court sustained the objection.

      On re-direct, the State withdrew its prior objection and moved to admit the

same report. When asked if he had any objection, Appellant’s attorney stated, “I

object to it being admitted unless I’m allowed to examine the witness about the

document before the State does.” The report was not admitted into evidence.

      Craig Driskell, an attorney with CLEAT, the police union of which Officer

Fossett was a member, had gone to the scene and met with Officer Fossett.

Appellant’s attorney subpoenaed Driskell to testify, and Driskell filed a motion to

quash. The trial court asked Appellant’s attorney what information he intended to

elicit that would be relevant to the case. The attorney replied,

      “[N]o one seeks the advice of an attorney unless they think they
      need an attorney for some reason. And this witness or this officer
      who was involved in the shooting sought counsel before he left the
      scene of the event. And, therefore, it is indicative of the state of
      mind that he had.”




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      The attorney also explained that “it may have affected [Officer Fossett’s]

willingness to discuss the case with the IA investigator,” and “anything that would

affect the willingness of [Officer Fossett] to be forthcoming has a direct

relevance.”

      In response, Driskell stated that “to err on [the] side of caution, [the legal

counsel for the union] make every scene of every shooting from officers that are

members of our union.” He stated that “[w]hen [he] get[s] there, [he] talk[s] to

[his] client confidentially” and that he did not “feel comfortable about even going

on the stand because every time” he would “have to look to [the trial judge] and

say, Your Honor, that’s confidential.” Appellant’s attorney argued that Driskell

was present when investigators did a walk-through of the incident with Officer

Fossett and that statements made with others present would not be privileged.

Driskell responded, “And that’s the problem I have. I’m not sure I can distinguish

what was said in confidence and then repeated, if it was exactly the same with

others present. I’m going to have to err on the side it was confidential.” The trial

court ruled that privilege could be and had been asserted, that Driskell’s

testimony was not relevant, and to the extent that it was relevant, the danger of

unfair prejudice would outweigh any probative value.

      The defense called E.J. Brown, a former crime scene investigation

detective and internal affairs detective. Brown testified that he had conducted an

investigation of the crime scene at the request of Appellant’s attorney. Based on

his investigation, Brown disputed Officer Fossett’s version of events and


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criticized the handling of the investigation by the Hurst and Colleyville police

departments. In closing argument, the prosecutor made the following argument

regarding Brown’s testimony:

      So while we sit here and we try to turn the whip back on the police
      and put Officer Fossett on trial for what happened that day, to make
      it somehow a conspiracy between Hurst PD and Colleyville PD to
      sweep this all under the rug, circle the wagons, and frame an
      innocent man.

            Ladies and gentlemen, you have to ask yourself, is that what
      the evidence supports? As much as they tried to twist the word of
      the officers, and you were present for the excruciatingly long
      questioning that went on in this case. The full day of cross-
      examination for Officer Fossett.

            To try to twist their words, try to trick them into an [] answer
      they don’t agree with, to try to get a judge to try to agree with you
      when he flat out says, No, you’re wrong.

             If that doesn’t work, what do you do? Well, you bring in that
      clown, E.J. Brown. And, ladies and gentlemen, I was offended by
      his testimony. Y’all saw how mad I got. This guy who wanted to
      wrap himself in a flag and he’s a peace officer and he’s got all these
      years of experience, that guy was a hired gun. A man who wants to
      tell you—

            [Appellant]: Now, that is outside the evidence. And now he’s
      arguing outside the evidence in the case.

            THE COURT:         Well, the jury will recall the evidence that
      they’ve heard.

            [Prosecutor]: He didn’t come in here because I brought him
      in. He was subpoenaed or retained by the defense attorney to come
      in here and testify because they couldn’t get what they wanted out of
      the other officers.




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Right to Question Complainant’s Attorney

      In his first point, Appellant contends that the trial court’s denial of his Sixth

Amendment right to obtain and cross-examine Driskell deprived him of the right

to present a defense.      Appellant subpoenaed Driskell, the CLEAT attorney

representing Officer Fossett.     Driskell had been called to the scene of the

shooting, and while at the scene, Driskell did a walk-through with Officer Fossett

and Officers Ryan Rider and Patrick McGrail. Driskell, not the State, filed a

motion to quash the subpoena. An attorney who was the lawyer at the time of

the communication sought is presumed to have the authority to claim the

privilege, but only on behalf of the client. 2 Driskell argued that he could not

discuss what Officer Fossett had said during the walk-through because the

statements were confidential and protected by the attorney-client privilege.

Driskell’s position was that, because he could not remember which of Officer

Fossett’s statements were made to him in confidence and which were made in

the presence of other people, everything was protected by the privilege.

      Appellant argued that statements made in the presence of others were not

privileged. Appellant argued generally to the trial court that he was entitled to

question Driskell to develop a defense. Appellant explained to the trial court that

the purpose of the walk-through was for Officer Fossett to describe what had

happened regarding the shooting. Appellant argues here that without Driskell’s

      2
       Tex. R. Evid. 503(c).



                                          6
testimony, “it is impossible for the defense to evaluate the credibility and

reliability of the description given by Fossett, for each eyewitness present during

the walk-through may recall details missed or forgotten by other witnesses.”

Nowhere, however, does Appellant direct us to any offer of proof made at the

time of trial.

       Appellant correctly states that the right to compulsory process guarantees

only the right to obtain witnesses whose testimony would be both material and

favorable to the defense. 3 The defendant must make a plausible showing to the

trial court, by sworn evidence or agreed facts, that the witness’s testimony would

be both material and favorable to the defense. 4 The law is well established that

       Rule of Evidence 103(a)(2) limits the scope of issues which may be
       appealed when evidence is limited or excluded. Error may not be
       predicated upon a ruling which . . . excludes evidence unless a
       substantial right of the party is affected, and . . . the substance of the
       evidence was made known to the court by offer, or was apparent
       from the context within which questions were asked. The offer of
       proof may be in question-and-answer form or in the form of a
       concise statement by counsel. An offer of proof to be accomplished
       by counsel’s concise 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. The
       primary purpose of the offer of proof is to enable an appellate court
       to determine whether the exclusion was erroneous and harmful. A
       secondary purpose is to permit the trial judge to reconsider his ruling
       in light of the actual evidence.

       3
       See Coleman v. State, 966 S.W.2d 525, 527–528 (Tex. Crim. App. 1998)
(op. on reh’g).
       4
        Id. at 528.



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                This court has recognized a distinction between the general
         rule in Rule 103(a)(2) and the case in which the defendant is not
         permitted to question a State’s witness about matters that might
         affect the witness’s credibility.

               In the latter case, “the defendant need not show what his
         cross-examination of the witness would have affirmatively
         established; he must merely establish what general subject matter
         he desired to examine the witness about during his cross-
         examination and, if challenged, show on the record why such should
         be admitted into evidence. In such a case the trial court’s ruling has
         prevented a defendant from questioning a State’s witness about
         subject matters which affect the witness’s credibility, that is, matters
         which might show malice, ill feeling, ill will, bias, prejudice, or
         animus. 5

         Appellant argued to the trial court that (1) “no one seeks the advice of an

attorney unless they think they need an attorney for some reason” and (2) the

attorney “may have” affected Officer Fossett’s willingness to discuss the events

with his IA investigator. The trial court granted the motion to quash and stated, “I

don’t see any relevance to the idea of calling Mr. Driskell to the stand.” The trial

court also stated that the danger of unfair prejudice would outweigh the probative

value.

         We hold that Appellant did not make a sufficient offer of proof to establish

the admissibility of Driskell’s testimony. We therefore overrule Appellant’s first

point.




         5
       Holmes v. State, 323 S.W.3d 163, 168 (Tex. Crim. App. 2009) (internal
quotation marks and footnotes omitted).


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Inflammatory Jury Argument of Prosecutor

      In his second point, Appellant contends that the prosecutor’s comments

during jury argument were so inflammatory as to be incurable and that they

denied Appellant his constitutional right to a fair trial and effective counsel.

      Appellant correctly argues that the prosecutor’s jury argument was

improperly inflammatory. The State candidly points out that “[w]hen a prosecutor

makes uninvited and unsubstantiated accusations of improper conduct directed

toward a defendant’s attorney, in an attempt to prejudice the jury against the

defendant, courts refer to this as striking [at] a defendant over the shoulders of

his counsel.” 6 But, as the State also points out, the issue must be preserved for

appeal by making a timely objection. 7         That is, the Texas Court of Criminal

Appeals has expressly rejected Appellant’s contention that a defendant’s failure

to object to incurable argument does not forfeit the complaint. 8

      In the case now before this court, Appellant objected that the State was

arguing “outside the evidence.” He received no ruling on his objection. Nor did

he further object. Because Appellant did not preserve his complaint for appellate

review, we overrule his second point.

      6
       Phillips v. State, 130 S.W.3d 343, 355 (Tex. App—Houston [14th Dist.]
2004, pet ref’d) (op. on reh’g).
      7
      See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert.
denied, 520 U.S. 1173 (1997).
      8
       See id.



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Exclusion of Police Report from Evidence

      In his third point, Appellant complains that the trial court refused to admit

the police report he offered during his cross-examination of Officer Fossett. On

redirect, however, the State withdrew its prior objections and moved to admit the

same report. When asked whether he had any objection, Appellant objected to

the admission of the report unless he was allowed to examine the witness about

the report before the State questioned him. The report was not admitted into

evidence. Appellant does not explain how he has preserved his complaint for

appellate review when he himself objected to the admission of the report and

also made no offer of proof. 9 We overrule Appellant’s third point.

Cumulative Effect of Error

      In his fourth point, Appellant argues that the cumulative impact of the first

three errors of which he complains is so great that reversal is required. Because

Appellant has not preserved his first three points, there is no cumulative error of

which to complain. We overrule Appellant’s fourth point.

Conclusion

      Having overruled Appellant’s four points, we affirm the trial court’s

judgment.

      9
       See Tex. R. App. P. 33.2; Tex. R. Evid. 103(a)(2), (b); Holmes, 323
S.W.3d at 168; see also Jackson v. State, 552 S.W.2d 798, 801 (Tex. Crim. App.
1976) (holding that Appellant’s failure to recall a witness and to again offer
previously excluded evidence that was now admissible forfeited his objection to
the exclusion of the evidence), cert. denied, 434 U.S. 1047 (1978).



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                                       LEE ANN DAUPHINOT
                                       JUSTICE

PANEL: DAUPHINOT, MCCOY, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 9, 2014




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