Herbert Richard Atkins, Appellant, v. The State of Texas, Appellee. (2015)

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: “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 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 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).

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 obj ect 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 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.

I respectfully dissent because I believe the record shows that the trial court prevented Atkins from making an offer of proof during trial.   Accordingly, I would abate and remand.

FACTUAL AND PROCEDURAL BACKGROUND

The charged offense in this case stems from an incident involving Atkins and his former girlfriend.¹  During opening arguments, the State informed the jury that one of the three responding officers at the scene, Deputy Eric Lee, was no longer employed by the Parker County Sheriff's Office.   That very day, Atkins requested the issuance of a subpoena duces tecum directing Meredith Gray, the custodian of records for the Sheriff's Office, to produce Deputy Lee's “complete PCSO personell [sic] file ․ including but not limited to all disciplinary documents complaints and the ‘F–5’ form sent to TCLEOSE[.]”  The subpoena was served on Gray the following morning and she appeared in court later that morning with the records.

Earlier that morning, before Gray appeared in court, the State had called the other two responding officers, Deputy William Chance Kirk and Sergeant Rick Crosley, as witnesses in its case-in-chief.   Both testified Lee was the primary deputy at the scene, had written a report, and was no longer employed by the department.   Kirk further explained Lee had been terminated.   When Kirk was asked by Atkins's counsel why Lee had been terminated, the following exchange occurred:

[PROSECUTOR]:  Objection, relevance, Your Honor.

[TRIAL COURT]:  Sustained.

[DEFENSE COUNSEL]:  Can we have an opportunity to have an offer of proof at some other point in time regarding that issue, Judge?

The trial judge did not respond and, instead, questioned Kirk, who testified Lee had been terminated because “he was showing up late to work” and for no other reason.   Atkins's counsel moved on.

After the State rested, Atkins's counsel requested, and the trial court granted, a break “for the defense to get their case together and see what they're going to do.”   Upon returning from the break and out of the presence of the jury, counsel alerted the trial judge that Gray was refusing to turn over Deputy Lee's employment records to him.   Counsel argued “we have a right to see why the lead deputy was fired.”   The State responded by asking the trial judge for the opportunity to file a motion for protective order on the ground that the records were irrelevant.   The following exchange then ensued:

[TRIAL COURT]:  Y'all both stop the arguing.   I don't want to hear another angry word.   I'm serious.   This is childish.   I want to hear what she has to say and then I'll decide.

[TRIAL COURT]:  In talking to the lawyers it sounds like the only thing they really need is to know why the deputy lost his job.   Can you look through there and tell us why he was canned?

[GRAY]:  He was terminated at will.

[TRIAL COURT]:  Any reason given?

[GRAY]:  Not in his termination paperwork, no, sir.   The actual separation paperwork for the county says at will termination.   And I believe the letter just says that his services were no longer needed.

[TRIAL COURT]:  Okay. Is there any complaints in there about him being not truthful or anything else that would be used in the defense of a criminal case?

[GRAY]:  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.

[TRIAL COURT]:  Okay. For the record, I have known Meredith Gray since before she was Meredith Gray. And I impart a high degree of credibility to what she's telling me and her review of the records.   I'm not going to allow any further review of Deputy Lee's personnel records.   She's explained why he was terminated and what's in the file.   And as far as I'm concerned, that's the extent of her testimony.

Defense counsel then requested “that the records be made — marked as an exhibit for the reporter's record for purpose of appeal, if necessary.”   The trial court denied the request on the basis that the records were irrelevant.

RESTRICTION ON OFFER OF PROOF

Atkins claims the trial court erred when it denied him the “absolute right to make an offer of proof regarding excluded evidence.”   I agree.

The right to make an offer of proof to preserve excluded testimony for appeal is absolute, and a trial court errs by denying a party the opportunity to exercise this right.  Spence v. State, 758 S.W.2d 597, 599 (Tex.Crim.App.1988), cert. denied, 499 U.S. 932, 111 S.Ct. 1339, 113 L.Ed.2d 271 (1991);  Tex.R.Evid. 103(c)(“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.”).  [Emphasis added].   To invoke this right, it is axiomatic that a party complaining he was precluded from making an offer of proof under Rule 103 must first attempt to present the excluded evidence at trial and, if an objection to the proffered evidence is sustained, must then make an offer of proof.   See Tex.R.Evid. 103(a)(“A party may claim error in a ruling to ․ exclude evidence ․”), (a)(2)(“if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.”).

When the colloquies depicted above are viewed in the context of the entire proceedings, it is apparent Atkins attempted to present Deputy Lee's employment records at trial, the trial judge excluded them, Atkins asked to make an offer of proof, and the trial judge denied the request.   Atkins subpoenaed the records after learning Deputy Lee was no longer a peace officer, and when the trial court initially denied him the opportunity to address the issue of Deputy Lee's termination, he alerted the trial judge he intended to make an offer of proof later at trial, undoubtedly referring to the employment records.   Significantly, at the conclusion of the State's case-in-chief, Atkins informed the trial judge he needed a break, as indicated by the State on appeal, to determine “whether [he] was going to put on any evidence in the trial [,]” presumably including the subpoenaed records.   When Atkins indicated he had a right to review the records Gray was refusing to turn over to him, the State responded by arguing it was entitled to a protective order.   But neither party was given the opportunity to advocate its position.   Instead, the trial judge told the parties he would determine whether the records were relevant, i.e., admissible, after he questioned Gray. By declaring at the end of his examination of Gray, “I'm not going to allow any further review of Deputy Lee's personnel records[,]” the trial judge foreclosed their admission into evidence.   It was then that Atkins made the offer of proof by asking that the employment records “be ․ marked as an exhibit for the reporter's record for purpose of appeal[.]”  The trial court, however, denied the request, thereby preventing Atkins from making an offer of proof under Rule 103.

The State counters that “since ․ evidence [on the issue of Deputy Lee's termination] was not excluded during the course of the trial, there is no complaint for appellate review, and an offer of proof is not relevant.”   The State appears to argue Atkins cannot complain about being prevented from making an offer of proof to preserve excluded evidence because the trial judge provided him with the answers to his queries regarding Deputy Lee's termination.   Putting aside for the moment Gray's caveat that she didn't look at every document in Deputy Lee's employment records, for purposes of what can be preserved in the appellate record, it is immaterial that the trial judge adduced testimony regarding the circumstances surrounding Deputy Lee's termination.   When, as here, the trial judge excludes evidence, an appellant has the absolute right to place that evidence into the record for appellate review.  Spence, 758 S.W.2d at 599.

The State also argues the trial judge did not prevent Atkins from making an offer of proof because the trial judge's examination of Gray constituted an offer of proof under Rule 103.   The State's argument, however, ignores the plain language of Rule 103(c):  “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.”  [Emphasis added].  Tex.R.Evid. 103(c).  On its face, this language makes clear that the offering party, not the trial judge, bears the responsibility for making and overseeing an offer of proof.

In sum, I would find the trial court erred by precluding Atkins from making an offer of proof regarding Deputy Lee's employment records.

DISPOSITION

Atkins prays that this cause be reversed and remanded for a new trial.   But the customary remedy for this type of error is to abate the appeal and remand to the trial court for a hearing to permit counsel to develop the appellate record.  Spence, 758 S.W.2d at 599–600;  Andrade v. State, 246 S.W.3d 217, 226 (Tex.App.—Houston [14th Dist.] 2007, pet. ref d).  This is because “remand, rather than a reversal, best fulfills the ends of justice in that appellant is being provided all relief requested, i.e., an opportunity to perfect his record.”  Spence, 758 S.W.2d at 600.

Citing Andrade v. State, the State asserts we should not permit Atkins to supplement the appellate record with Deputy Lee's employment records because Atkins has not claimed on appeal that the trial court erred by excluding them.   See Andrade, 246 S.W.3d at 226–27 (concluding trial court's error preventing appellant from making an offer of proof regarding the testimony of the detective investigating the murder was harmless because appellant had not raised an issue on appeal regarding the excluded testimony, thus making abatement futile).   But contrary to the State's assertion, Atkins does argue on appeal that the trial court erred in excluding Deputy's Lee's employment records from evidence because they were relevant to show a fact of consequence in his case:

Due to the trial court's ruling, [he] is outright denied his opportunity to show on appeal the existence of relevant and significant issues regarding the Deputy's departure from the Sheriff's Office.   These issues could have bearing on the appeal;  namely, the possibility that his termination was influenced by his performance in the investigation into this case.

The State also asserts we should not permit supplementation because “there is nothing to indicate that ․ [the] record[s] would yield any evidence that was material, relevant, and admissible to this case.”   That may well be.   But “[q]uestions of materiality and relevancy have no effect on what can be preserved for purposes of the appellate record.   A relevancy analysis is solely applicable to what is to be admitted into evidence, and when the court excludes evidence, the appellant has an absolute right to place that same ‘irrelevant’ evidence into the record for appellate review.”  Spence, 758 S.W.2d at 599.

CONCLUSION

Based on the foregoing, I would abate the appeal, and remand to the trial court for a hearing to allow Atkins to include Deputy Lee's employment records in the appellate record.

FOOTNOTES

1.   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.

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.

1.   Atkins was also charged with assault, and both charges were tried concurrently.

ANN CRAWFORD McCLURE, Chief Justice

Rodriguez, J., dissenting Larsen, J. (Senior Judge), sitting by assignment