Cesar Andrade v. State ( 2007 )

Affirmed and Majority and Concurring and Dissenting Opinions filed November 29, 2007

Affirmed and Majority and Concurring and Dissenting Opinions filed November 29, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-05-01227-CR

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CESAR ANDRADE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District

Harris County, Texas

Trial Court Cause No. 754997

C O N C U R R I N G   A N D   D I S S E N T I N G   O P I N I O N

I respectfully disagree with the majority=s analysis of the third issue in which appellant complains the trial court erred by denying him the opportunity to make offers of proof.

                                                   Offers of Proof

Texas Rule of Evidence 103(b) provides in relevant part that an Aoffering party shall, as soon as practicable, but before the court=s charge is read to the jury, be allowed to make, in the absence of the jury, its offer of proof.@ Tex. R. Evid. 103(b).  The right to make an offer of proof is absolute and the trial court does not have discretion to deny a request to make an offer of proof.  See Spence v. State, 758 S.W.2d 597, 599 (Tex. Crim. App. 1988).  If the trial court=s violation of Rule 103(b) harms an appellant, the proper remedy is not to reverse the trial court=s judgment but to abate the appeal and remand he case to the trial court so that appellant may make the offer of proof.  See id. at 599B600.

                                                     Officer Avila

During the guilt-innocence phase, appellant=s counsel stated that he needed to make an offer of proof regarding Officer Avila=s testimony. Rather than allowing appellant to make an offer of proof Aas soon as practicable, but before the court=s charge is read to the jury,@ the trial judge stated that he would not allow appellant to make an offer of proof.  The trial judge then said that he would allow appellant to make an offer of proof Aat the end of the trial@ C a point in time that is necessarily after the charge is read to the jury.  The substance of the evidence that appellant wanted to put on the record through the offer was not apparent from the context.  See Tex. R. Evid. 103(a).  Therefore, the trial court erred in denying appellant=s request to make an offer of proof as to Officer Avila.

It would seem that this error is harmful.  See Spence, 758 S.W.2d at 599.  At no time during the guilt-innocence or punishment phase did appellant make an offer of proof as to Officer Avila=s testimony.  The majority concludes that the trial court erred, but that this error is harmless because appellant has not assigned error on appeal relating to the trial court=s exclusion of any testimony by Officer Avila.  See ante at pp. 8B9.  The only case cited by the majority in reaching this conclusion is Rivera v. State, 981 S.W.2d 336, 340B41 (Tex. App.CHouston [14th Dist.] 1998, no pet.), in which this court reasoned that an abatement to allow an offer of proof to be made would have been futile, and thus concluded the trial court=s erroneous denial of the opportunity to make an offer of proof was harmless.  981 S.W.2d 336, 340B41 (Tex. App.CHouston [14th Dist.] 1998, no pet.).  The stated reason for this conclusion was that the appellant had not assigned any error relating to the evidence to be adduced in the offer of proof and this court chose not to exercise its discretion to allow appellant to file a supplemental brief assigning new error.  See Rivera, 981 S.W.2d at 341; see also Tex. R. App. P. 38.7 (allowing appellate briefs to be amended or supplemented whenever justice requires, on whatever reasonable terms the  appellate court may prescribe); Allen v. State, 795 S.W.2d 15, 16B17 (Tex. App.CHouston [14th Dist.] 1990, no pet.) (stating courts of appeals may allow supplemental or amended briefs raising new issues in the interest of justice).  Under Rivera, failure to assign error relating to the testimony to be adduced from Officer Avila renders the trial court=s error harmless only if this court decides not to exercise its discretion to allow appellant to file supplemental briefing asserting error regarding the offer of proof following the making of that offer in the trial court.  See Rivera, 981 S.W.2d at 341.  Though the majority cites Rivera, the majority does not address whether this court will exercise its discretion in this way. See ante at pp. 8B9.

Under the Rivera analysis, this court should exercise its discretion to allow appellant to file a supplemental brief following an abatement for the creation of an offer of proof as to Officer Avila.  Cf.  Rice v. State, 773 S.W.2d 27, 28 (Tex. App.CHouston [14th Dist.] 1989, pet. ref=d) (declining to allow supplemental briefing raising new issues following supplementation of the appellate record because the new issues did not relate to the new parts of the appellate record).  If appellant had assigned error in this case as to the testimony of Officer Avila that he wished to elicit in the offer of proof, he would have encountered  problems.  For example, appellant might not know what Officer Avila=s future testimony on abatement would be.  Furthermore, if appellant had assigned error in this regard, appellant would have been required to provide argument and analysis, including record citations, as to testimony that has yet be to given and is not in the appellate record.  See Tex. R. App. P. 38.1(h).  Had he undertaken to do so, he almost certainly would have violated the appellate briefing rules.  See id.  It is unfair to hold appellant to a standard that would require him to guess at what might have been said and to require him to give record citation for facts not in the appellate record.  Given these circumstances, this court should exercise its discretion to allow appellant to file a supplemental brief as to the offer of proof as to Officer Avila.  If the court were to decide to do so, then the trial court=s erroneous denial of an offer as to Officer Avila would not be harmless, and this court would have to abate and remand this case to the trial court to allow an offer to be made as to Officer Avila.  This court errs in failing to do so.

                                                   Robert Baldwin

Presuming, without deciding, that appellant preserved error as to the trial court=s failure to allow him to make an offer of proof as to Robert Baldwin before the charge was read to the jury in the guilt-innocence phase, the majority correctly concludes that the error is harmless because our record contains appellant=s offer of proof as to what he wanted to introduce in the guilt-innocence phase.  Although this offer of proof was made late (during the punishment phase), the delay would not prevent appellant from preserving error as to the exclusion of this testimony if the trial court erroneously prevented appellant from timely making an offer. In addition, because this testimony was in the record when appellant filed his appellate brief, he could have and should have assigned and briefed any error relating to Baldwin=s testimony that he wanted this court to consider.  Thus, this court can appropriately deny appellant the opportunity to add an issue on this point in a supplemental brief.  Therefore, the court correctly determines that, as to the Baldwin offer, the trial court=s error is harmless.

                                                  Maria Resendez

The majority does not address the offer of proof as to the testimony of the complainant=s mother, Maria Resendez.  Appellant sought to make an offer of proof as to testimony that he wanted to elicit from her during the punishment phase.  At first, the trial court, when requested, would not let appellant make an offer, indicating that appellant would be permitted to make the offer at the end of trial.^[1] After appellant objected to being forced to wait until the end of trial, the trial court allowed appellant to make an offer before the charge was read to the jury.  Under the third issue, appellant argues that the trial court erred by refusing to allow him to make offers of proof and by forcing him to wait to make them until after the charge had been read to the jury.  However, the trial court did not refuse to let appellant make an offer as to Resendez, and the trial court did not force him to do so after the charge was read to the jury. Therefore, appellant=s arguments lack merit as to the Resendez offer.  Although the trial court did stop this offer before appellant had asked all of his questions, appellant has not briefed any argument on appeal regarding such a complaint.  See Tex. R. App. P. 38.1(h); Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005).  Therefore, the third issue lacks merit as to the Resendez offer of proof.

                                                      Conclusion

Appellant=s third issue lacks merit as to the offers of proof regarding Robert Baldwin, Officer Riddle, and Maria Resendez.  However, the trial court=s error in denying appellant the opportunity to make an offer of proof as to Officer Avila is harmful.  Therefore, this court should sustain the third issue as to Officer Avila, abate this appeal for proceedings in the trial court to allow appellant to make an offer of proof as to Officer Avila, and allow appellant to file a supplemental brief as to this testimony.  To the extent the court does not do so, I respectfully dissent.  Otherwise, I concur in the court=s judgment.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Majority and Concurring and Dissenting Opinions filed November 29, 2007.

Panel consists of Justices Anderson, Fowler, and Frost.  (Anderson, J., majority)

Publish C Tex. R. App. P. 47.2(b).

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^[1]  The majority states that Resendez=s testimony does not fall within the purview of appellant=s third issue complaining of the trial court=s refusal to allow appellant the opportunity to make offers of proof.  See ante p. 9, n.7.  The majority reaches this conclusion because the trial court eventually allowed appellant to make an offer of proof as to Resendez.  This fact, however, does not change the reality that, at first, the trial court did not allow appellant to make an offer of proof as to Resendez and that appellant complains on appeal that the trial court refused to allow him to make an offer of proof as to Resendez.