COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00096-CR

JAMES MICHAEL TESI APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

----------

MEMORANDUM OPINION1

----------

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 crossexamine a witness deprived him of his right to present a defense, that the 

 1

See Tex. R. App. P. 47.4.
2

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 
3

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.”
4

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 
5

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 crossexamination 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.
6

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).
7

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.
8

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 crossexamination 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).
9

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.
10

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).
11

LEE ANN DAUPHINOT

JUSTICE

PANEL: DAUPHINOT, MCCOY, and GABRIEL, JJ.

DO NOT PUBLISH

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

DELIVERED: January 9, 2014