IN THE TENTH COURT OF APPEALS
No. 10-13-00430-CR
QUINCY DESHAN BUTLER, Appellant v.
THE STATE OF TEXAS, Appellee
From the 272nd District Court Brazos County, Texas Trial Court No. 12-00472-CRF-272
MEMORANDUM OPINION
In five issues, appellant, Quincy Deshan Butler, challenges his conviction for
deadly conduct by discharging a firearm. See TEX. PENAL CODE ANN. § 22.05(b) (West
2011). We affirm. I. BACKGROUND1
This is the not the first time this criminal transaction has been before this Court.
See, e.g., Ex parte Butler, No. 10-13-00362-CR, 2014 Tex. App. LEXIS 5833 (Tex. App.—
Waco May 29, 2014, pet. ref’d) (mem. op., not designated for publication); State v. Butler,
No. 10-12-00234-CR, 2013 Tex. App. LEXIS 5541 (Tex. App.—Waco May 2, 2013, pet.
ref’d) (mem. op., not designated for publication). In the instant case, appellant was
charged by indictment with deadly conduct by discharging a firearm and unlawful
possession of a firearm by a felon.2 Included in the indictment were two enhancement
paragraphs referencing appellant’s prior felony convictions for unlawful possession of a
controlled substance. At the conclusion of the evidence, the jury found appellant guilty
of engaging in deadly conduct by discharging a firearm. Additionally, the jury
concluded that the enhancement paragraphs were true and subsequently sentenced
appellant to sixty-two years’ confinement in the Institutional Division of the Texas
Department of Criminal Justice. This appeal followed.
II. APPELLANT’S MOTION TO QUASH THE INDICTMENT
In his first issue, appellant contends that the trial court erred in denying his
motion to quash the indictment in this case.
1 As this is a memorandum opinion and the parties are familiar with the facts, we only recite those facts necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4.
2 As explained later, there has not been a trial on the charge for unlawful possession of a firearm by a felon. As such, appellant’s conviction for deadly conduct by discharging a firearm is the subject of this appeal.
Butler v. State Page 2 A. Applicable Law
The sufficiency of an indictment is a question of law. State v. Moff, 154 S.W.3d
599, 601 (Tex. Crim. App. 2004). Therefore, we review de novo a trial court’s ruling on a
motion to quash an indictment. Id. An indictment is sufficient when it charges the
commission of the offense in ordinary and concise language in such a manner as to
enable a person of common understanding to know what is meant, and with that
degree of certainty that will give the defendant notice of the particular offense with
which he is charged. TEX. CODE CRIM. PROC. ANN. art. 21.11 (West 2009).
B. Discussion
Here, the indictment provides the following, in relevant part:
QUINCY BUTLER hereinafter referred to as the Defendant, heretofore on or about May 28, 2011, did then and there knowingly discharge a firearm at or in the direction of individuals, namely, Pinkie Hardy and David Robertson [sic],
And it is further presented in and to said Court that, during the commission of the aforesaid offense, the defendant did then and there use or exhibit a deadly weapon, to-wit: a firearm, which in the manner of its use or intended use was capable of causing death or serious bodily injury,
PARAGRAPH TWO: and it is further presented in and to said Court, that the said QUINCY BUTLER, in the County of Brazos and State of Texas on or about the 28th day of May, 2011, did,
Then and there knowingly discharge a firearm at or in the direction of a habitation, and the defendant was then and there reckless as to whether the habitation was occupied, to-wit: by discharging said firearm at a habitation knowing that Pinkie Hardy and David Robertson [sic] were inside of said habitation,
And it is further presented in and to said Court that, during the commission of the aforesaid offense, the defendant did then and there use
Butler v. State Page 3 or exhibit a deadly weapon, to-wit: a firearm, which in the manner of its use or intended use was capable of causing death or serious bodily injury.
COUNT TWO: and it is further presented in and to said Court, that the said QUINCY BUTLER, in the County of Brazos and State of Texas on or about the 28th day of May, 2011, did,
then and there, having been convicted of the felony offense of Possession of Controlled Substance on the 7th day of February, 2008, in Cause No. 44367 in the 240th District Court of Fort Bend County, Texas, intentionally or knowingly possess a firearm before the fifth anniversary of the defendant’s release from confinement following conviction of said felony,
And it is further presented in and to said Court that, during the commission of the aforesaid offense, the defendant did then and there use or exhibit a deadly weapon, to-wit: a firearm, which in the manner of its use or intended use was capable of causing death or serious bodily injury, namely, by discharging said firearm at Pinkie Hardy and David Robertson [sic] or at a habitation in which the defendant knew Pinkie Hardy and David Robertson [sic] were located . . . .
In his motion to quash, appellant argued that: (1) Count 2 of the indictment
improperly charges appellant with two different crimes—unlawful possession of
firearm by a felon and deadly conduct; (2) the deadly-conduct allegation fails to state a
culpable mental state; (3) the indictment improperly expanded the definition of deadly
weapon to include extraneous acts and offenses; and (4) the indictment improperly
charges appellant with the same offense—deadly conduct—in both Counts 1 and 2 of
the indictment, thereby violating his rights to due process and double jeopardy.
1. Count 2 of the Indictment
With respect to Count 2 of the indictment, the record is clear that appellant has
not been tried on that count. As such, appellant’s complaints about Count 2 of the
indictment amount to an interlocutory appeal of the trial court’s denial of his motion to
Butler v. State Page 4 quash. See, e.g., Chambliss v. State, No. 10-13-00002-CR, 2013 Tex. App. LEXIS 2060, at
**1-2 (Tex. App.—Waco Feb. 28, 2013, no pet.) (mem. op., not designated for
publication). We do not have jurisdiction of an interlocutory appeal of the denial of a
motion to quash an indictment. See Abbott v. State, 271 S.W.3d 694, 696-97 (Tex. Crim.
App. 2008) (noting that the standard for determining jurisdiction is not whether the
appeal is precluded by law, but whether an appeal is authorized by law); Everett v.
State, 91 S.W.3d 386, 386 (Tex. App.—Waco 2002, no pet.) (stating that the court has
jurisdiction over criminal appeals only when expressly granted by law); Wright v. State,
969 S.W.2d 588, 589 (Tex. App.—Dallas 1998, no pet.) (stating that appellate court may
consider appeals by criminal defendants only after conviction); see also Charboneau v.
State, No. 05-13-00203-CR, 2013 Tex. App. LEXIS 1793, at *2 (Tex. App.—Dallas Feb. 20,
2013, no pet.) (mem. op., not designated for publication) (“Orders denying pretrial
motions to suppress, quash a complaint, and dismiss are not appealable interlocutory
orders.”). Therefore, we lack jurisdiction to address appellant’s first and fourth
contentions—both of which center on Count 2 of the indictment. See Abbott, 271 S.W.3d
at 696-97; Everett, 91 S.W.3d at 386; Wright, 969 S.W.2d at 589; see also Chambliss, 2013
Tex. App. LEXIS 2060, at **1-2; Charboneau, 2013 Tex. App. LEXIS 1793, at *2.
2. Culpable Mental States
In his motion to quash, appellant also argues that the deadly-conduct allegation
contained in the indictment failed to state all of the elements of the offense of deadly
conduct by failing to state a culpable mental state. However, on appeal, appellant
asserts that the indictment alleged the wrong culpable mental state. Specifically,
Butler v. State Page 5 appellant contends that the “knowing” culpable mental state refers to the discharging of
a firearm, and the “reckless” culpable mental state pertains to appellant’s knowledge
that the trailer house was occupied.
Based on our review of the record, appellant’s complaint on appeal pertaining to
the culpable mental states listed in the indictment do not comport with appellant’s
complaints made in his motion to quash. A complaint will not be preserved if the legal
basis of the complaint raised on appeal varies from the complaint made at trial. See TEX.
R. APP. P. 33.1; see also Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009).
Accordingly, because appellant’s contention does not comport with the argument made
at trial, this contention presents nothing for review. See TEX. R. APP. P. 33.1; see also
Lovill, 319 S.W.3d at 691-92.
3. The Deadly-Weapon Allegation
In his final contention in this issue, appellant asserts that the trial court should
have granted his motion to quash because the State improperly added additional
elements to the deadly-weapon allegation in the indictment. More specifically,
appellant alleges that since a firearm is a per se deadly weapon, the State was not
required to prove anything related to the manner of its use. However, as the Court of
Criminal Appeals has recently stated, mere possession of a firearm during the
commission of a felony is not sufficient to sustain a deadly-weapon finding. Plummer v.
State, 410 S.W.3d 855, 858-60 (Tex. Crim. App. 2013). Rather, the State must prove that:
(1) the object meets the statutory definition of a dangerous weapon; (2) the deadly
weapon was used or exhibited during the transaction from which the felony conviction
Butler v. State Page 6 was obtained; and (3) that other people were put in actual danger. Drichas v. State, 175
S.W.3d 795, 798 (Tex. Crim. App. 2005) (en banc) (internal citations omitted). The
language contained in the indictment merely identified the elements necessary for the
State to prove the affirmative finding of a deadly weapon. See id. As such, we cannot
say that the trial court erred in denying appellant’s motion to quash on this ground. See
Moff, 154 S.W.3d at 601. And based on the foregoing, we overrule appellant’s first issue.
III. APPELLANT’S MOTION FOR MISTRIAL
In his third issue, appellant complains that the trial court abused its discretion by
denying his motion for mistrial on three different occasions during trial.
A. Applicable Law
We review the denial of a motion for mistrial under an abuse-of-discretion
standard. Archie v. State, 221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007). Under this
standard, we uphold the trial court’s ruling as long as the ruling is within the zone of
reasonable disagreement. Id. “‘A mistrial is a device used to halt trial proceedings
when error is so prejudicial that expenditure of further time and expense would be
wasteful and futile.’” Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting
Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). It is appropriate only for “a
narrow class of highly prejudicial and incurable errors.” Id.; see Hawkins v. State, 135
S.W.3d 72, 77 (Tex. Crim. App. 2004). Therefore, a trial court properly exercises its
discretion to declare a mistrial when, due to the error, “an impartial verdict cannot be
reached” or a conviction would have to be reversed on appeal due to “an obvious
procedural error.” Wood, 18 S.W.3d at 648; see Ladd, 3 S.W.3d at 567.
Butler v. State Page 7 B. Appellant’s First Motion for Mistrial
First, appellant asserts that the trial court should have granted his motion for
mistrial because of Ebony Hardy’s reference to her mother being shot by a boyfriend.
The following exchange serves as the basis for appellant’s contention:
[The State]: When you saw her [Pinkie] out in the grass, what did you think?
[Hardy]: I just thought about my mother.
Q: And what happened to her?
A: Her boyfriend also shot her in the head.
[Defense counsel]: Objection, [Y]our Honor. We’re going to object to anything about what happened to—
THE COURT: I sustain the objection.
[Defense counsel]: We ask the jury be instructed to disregard.
THE COURT: Ladies and gentleman, disregard that last statement[,] which had nothing to do with this case. Strike it from your mind[,] and do not consider it for any purpose.
[Defense counsel]: We would ask for a mistrial.
THE COURT: That’ll be denied.
On appeal, appellant contends that this testimony was inflammatory, prejudicial,
and necessitated the granting of his motion for mistrial. We disagree. The prosecutor’s
question here was general and did not expressly implicate appellant in the shooting of
Pinkie, especially given that the evidence established that Pinkie was dating multiple
people at the time of the incident. Based on our review of the evidence, we cannot say
that the above exchange was so inflammatory as to be incurable by an instruction to
Butler v. State Page 8 disregard. See Ladd, 3 S.W.3d at 567 (“The asking of an improper question will seldom
call for a mistrial, because, in most cases, any harm can be cured by an instruction to
disregard. A mistrial is required only when the improper question is clearly prejudicial
to the defendant and is of such character as to suggest the impossibility of withdrawing
the impression produced on the minds of the jurors.”); see also Gardner v. State, 730
S.W.2d 675, 696 (Tex. Crim. App. 1987) (“In the vast majority of cases in
which . . . testimony comes in . . . which has no relevance to any material issue in the
case and carries with it some definite potential for prejudice to the accused, this Court
has relied upon what amounts to an appellate presumption that an instruction to
disregard the evidence will be obeyed by the jury. In essence[,] this Court puts its faith
in the jury’s ability, upon instruction, consciously to recognize the potential for
prejudice, and then consciously to discount the prejudice, if any, in its deliberations.”).
Accordingly, we cannot say that the trial court abused its discretion by denying
appellant’s first motion for mistrial. See Ladd, 3 S.W.3d at 567; Gardner, 730 S.W.2d at
696; see also Archie, 221 S.W.3d at 699-700.
C. Appellant’s Second Motion for Mistrial
Next, appellant argues that the trial court abused its discretion by denying his
second motion for mistrial that pertained to testimony provided by David Roberson,
one of Pinkie’s boyfriends. At trial, Roberson, an individual with numerous stints in
prison, indicated that he feared for his family’s safety because of his trial testimony.
Apparently, Roberson’s fear stemmed from evidence presented at a hearing on
appellant’s motion to suppress. At that hearing, the evidence demonstrated that
Butler v. State Page 9 Roberson had been indicted for first-degree felony possession of a controlled substance
with intent to deliver; however, that charge was dismissed based on Roberson’s prior
work as a confidential informant for the Bryan Police Department. This evidence was
suppressed, and a transcript of the hearing was produced. A copy of this transcript
revealing Roberson’s status as a confidential informant was given to appellant in the jail
by appellant’s appellate counsel. The State alleged that appellant made a copy of the
transcript and distributed it throughout the jail before it was discovered by law
enforcement. At a hearing held outside the presence of the jury, the State asserted that
Roberson and his family were threatened as a result of appellant’s distribution of the
hearing transcript.
Thereafter, the trial court determined that the transcript of Roberson’s testimony
at the hearing on appellant’s motion to suppress and the discussion of Roberson’s status
as a confidential informant should be sealed from appellant. As such, defense counsel
and counsel for the State were ordered not to provide appellant with copies of this
information. Appellant’s counsel argued that he should be able to cross-examine
Roberson about the sealing of the transcript, arguing that the sealing provided him an
incentive to testify in favor of the State. In response, the trial court ruled that the
sealing of the transcript was admissible to impeach Roberson; however, the trial court
noted that the State could ask Roberson about the reason behind the sealing of the
transcript.
On direct-examination, the State asked Roberson about his concerns about there
being in existence a written transcript, to which Roberson responded, “Right.” Defense
Butler v. State Page 10 counsel objected, which the trial court overruled. Next, the State asked the following
questions:
[The State]: And did we—after you brought that up to us, did we tell you we had asked the judge to enter an order to seal that particular part of the transcript so that it would exist for the defendant’s lawyers for appellate purposes but it wouldn’t be available to other people?
[Roberson]: Yes.
Q: And was that—is that because you feared for your safety?
A: Not so much as my family’s. I mean, I’m good.
Defense counsel objected to this last question and requested that the trial court
issue an instruction to the jury to disregard. Defense counsel also moved for a mistrial.
In response, the trial court sustained defense counsel’s objection and issued an
instruction to the jury to disregard the question and answer pertaining to safety.
However, the trial court denied defense counsel’s motion for mistrial.
Testimony that refers to or implies extraneous offenses can be rendered harmless
by an instruction to disregard by the trial court, unless the evidence was so clearly
calculated to inflame the minds of the jury or is of such damning character as to suggest
it would be impossible to remove the harmful impression from the jury’s mind. Kemp v.
State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992); see Harris v. State, 164 S.W.3d 775, 783
(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). Furthermore, we presume that a jury
follows a court’s instruction to disregard testimony, absent some proof from the record
that the jury did not or could not follow such an instruction. See Thrift v. State, 176
Butler v. State Page 11 S.W.3d 221, 224 (Tex. Crim. App. 2005). Nothing in Roberson’s testimony expressly
implicated appellant or explained why Roberson feared for his safety and the safety of
his family. Therefore, based on our review of the record, we cannot say that the
question and answer pertaining to safety was so inflammatory as to undermine the
efficacy of the trial court’s instruction to disregard. See Kemp, 846 S.W.2d at 308; Harris,
164 S.W.3d at 783; see also McGinnis v. State, No. 03-99-00824-CR, 2001 Tex. App. LEXIS
3171, at **10-12 (Tex. App.—Austin May 17, 2011, no pet.) (op. on reh’g) (not designated
for publication) (concluding that a detective’s statement that witnesses were reluctant to
testify for fear of retaliation was curable by an instruction to disregard, and thus, the
trial court did not abuse its discretion in refusing to grant a mistrial). Accordingly, we
cannot say that the trial court abused its discretion in denying appellant’s second
motion for mistrial. See Kemp, 846 S.W.2d at 308; Harris, 164 S.W.3d at 783; see also
Archie, 221 S.W.3d at 699-700.
D. Appellant’s Third Motion for Mistrial
And finally, appellant contends that the prosecutor’s argument during closing
argument warranted a mistrial. Specifically, appellant complains about the following
statements made by the prosecutor:
If Pinkie Hardy had died, as the doctor said by all account she should have, and we’re standing here arguing to you today on a murder case. With the kind of criminal history that he [appellant] has, you have a drug dealer from Houston who comes into this community to sell poison and then commits a murder while he’s here.
Butler v. State Page 12 Defense counsel objected and requested a jury instruction to disregard and a mistrial.
The trial court sustained counsel’s objection and instructed the jury to disregard the
“murder statement of counsel.”
Assuming, without deciding, that the complained-of statement was improper,
based on our review of the record, we conclude that the trial court’s instruction to
disregard cured any error. See Kemp, 846 S.W.2d at 308; Harris, 164 S.W.3d at 783; see
also McGinnis, 2001 Tex. App. LEXIS 3171, at **10-12. Appellant does not adequately
explain, and we do not believe, that the prosecutor’s statement was so inflammatory as
to undermine the efficacy of the trial court’s instruction to disregard. See Kemp, 846
S.W.2d at 308; Harris, 164 S.W.3d at 783; see also McGinnis, 2001 Tex. App. LEXIS 3171, at
**10-12. We therefore conclude that the trial court did not abuse its discretion in
denying appellant’s third motion for mistrial. See Kemp, 846 S.W.2d at 308; Harris, 164
S.W.3d at 783; see also Archie, 221 S.W.3d at 699-700. We overrule appellant’s third issue.
IV. CROSS-EXAMINATION AND IMPEACHMENT OF ROBERSON
In his fourth issue, appellant complains that the trial court erred in refusing to
allow him to cross-examine Roberson on the details of his work as a confidential
informant.
The Confrontation Clause of the Sixth Amendment to the United States
Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI. This
procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas,
Butler v. State Page 13 380 U.S. 400, 403, 85 S. Ct. 1065, 1067-68, 13 L. Ed. 2d 923 (1965); De La Paz v. State, 273
S.W.3d 671, 680 (Tex. Crim. App. 2008).
The Sixth Amendment protects the defendant’s right not only to confront the
witnesses against him, but to cross-examine them as well. See Davis v. Alaska, 415 U.S.
308, 316, 94 S. Ct. 1105, 1110, 39 L. Ed. 347 (1974). “The exposure of a witness’
motivation in testifying is a proper and important function of the constitutionally
protected right of cross-examination.” Davis, 415 U.S. at 316-17; 94 S. Ct. at 1110. The
accused is entitled to great latitude to show a witness’ bias or motive to falsify his
testimony. See Hodge v. State, 631 S.W.2d 754, 758 (Tex. Crim. App. [Panel Op.] 1982).
However, the right of cross-examination is not unlimited. The trial court retains
wide latitude to impose reasonable limits on cross-examination. See Delaware v. Van
Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 1434-35, 89 L. Ed. 674 (1986). The trial court
must carefully consider the probative value of the evidence and weigh it against the
risks of admission. See Hodge, 631 S.W.2d at 758. These potential risks include “the
possibility of undue prejudice, embarrassment or harassment to either a witness or a
party, the possibility of misleading or confusing a jury, and the possibility of undue
delay or waste of time.” Id.; see Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000);
see also Chambers v. State, 866 S.W.2d 9, 27 (Tex. Crim. App. 1993). Moreover, “the
Confrontation Clause guarantees an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, or to whatever extent, the defense
might wish.” Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294, 88 L. Ed. 15 (1985)
Butler v. State Page 14 (emphasis in original); see Walker v. State, 300 S.W.3d 836, 844-45 (Tex. App.—Fort
Worth 2009, pet. ref’d).
On direct examination, Roberson testified before the jury that he was a
confidential informant for the State and that he had a first-degree felony offense
dismissed because of his work. The trial court also allowed Roberson to testify about
the transcript from the motion to suppress, which was sealed from disclosure for the
witness’s safety. See Irby v. State, 327 S.W.3d 138, 145 (Tex. Crim. App. 2010)
(“Nonetheless, the trial judge retains wide latitude to impose reasonable limits on such
cross-examination based on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation that is repetitive or only
marginally relevant” (internal citations & quotations omitted) (emphasis added)).
Later, on cross examination, defense counsel also questioned Roberson about his role as
a confidential informant. In particular, defense counsel asked the following questions:
[Defense counsel]: And then you’ve had some—is it true you’ve had cases dismissed because you cooperated with law enforcement to testify against other individuals in those particular cases?
Q: And even in some other cases, that may not have anything to do with those; is that correct?
A: Yeah.
Besides the speculative nature of defense counsel’s questioning about Roberson’s
service as a confidential informant, appellant has failed to show that eliciting the details
Butler v. State Page 15 of Roberson’s work as a confidential informant would show a greater bias than the
evidence proffered. In other words, appellant has presented no evidence of a causal
connection between the information appellant provided the State in his work as a
confidential informant and his testimony in the instant case.
The Court of Criminal Appeals has stated:
In Irby, the defendant wanted to cross-examine [the testifying complainant] about the fact that he was on deferred-adjudication probation for aggravated assault with a deadly weapon. As in Carpenter, the defendant argued to the trial judge that the witness’s vulnerable status was relevant to show bias and motive. Once again, however, we held that the appellant failed to make a logical connection between [the complainant’s] testimony . . . and his entirely separate probationary status. Reasoning that a mere showing of a witness’s vulnerable status with the State, if evidenced only by his probationary status, would not make it any more or less probable that the witness harbored some bias in favor of the State, we concluded that the trial judge did not abuse his discretion in excluding this impeachment evidence because it was irrelevant.
....
The fact that a witness stands accused of (for example) felony theft would not, if presented to the jury, make that witness seem any more prone to testifying favorably for the State than a similarly situated witness who stood accused only of some unspecified felony. Both hypothetical witnesses—the one accused of felony theft and the other accused of the unspecified felony—would stand in the same vulnerable relation to the State; other things being equal, they would be subject to the same risk and extent of punishment. In other words, had the jury been presented with the fact that Joseph’s felony charges were actually felony theft charges (and that Stefan’s were actually felony robbery charges), it would have had no incrementally greater capacity to evaluate his potential for bias— its perception of the witness’s vulnerable relationship with the state would be essentially the same as before. Thus, as in Carpenter, Appellant’s bill of exception, insofar as it pertains to the nature of the witnesses’ charged offenses, does no more than establish the factual basis of the pending [State] charges.
Butler v. State Page 16 But a trial court’s discretion does not simply terminate upon a showing that the proffered impeachment evidence and the allegation of bias are logically connected. Indeed, it is a basic tenet of the law of evidence that merely establishing the relevancy of proffered evidence does not necessarily guarantee its admissibility.
Johnson v. State, 433 S.W.3d 546, 553-54 (Tex. Crim. App. 2014) (internal citations &
quotations omitted).
With regard to the wide latitude afforded trial judges in limiting cross-
examination, the Johnson Court further explained:
This latitude is exceeded only when the trial court exercises its discretion to so drastically curtail the defendant’s cross-examination as to leave him unable to make the record from which to argue why [the witness] might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. This kind of trial-court error is most conspicuous, of course, when the trial court entirely forecloses the defense from exposing—prohibits all inquiry into—a prototypical form of bias. But it may also be subtler, such as when the only record-making permitted the defense is so circumscribed that a reasonable jury might have received a significantly different impression of [the witness’s] credibility had [the defendant’s] counsel been permitted to pursue his proposed line of cross- examination.
Id. at 555 (internal citations & quotations omitted).
Here, appellant was allowed to elicit testimony that Roberson had previously
worked as a confidential informant. Appellant was not entirely foreclosed from
exploring Roberson’s potential bias, nor was appellant’s defense “so circumscribed that
a reasonable jury might have received a significantly different impression of
[Roberson’s] credibility had [appellant’s] counsel been permitted to pursue his
proposed line of cross-examination.” Id. Therefore, based on our review of the record,
we cannot say that the trial court erred in limiting appellant’s cross-examination of
Butler v. State Page 17 Roberson about the contents of the sealed transcript, especially considering the trial
court has wide latitude to limit cross-examination on the basis of a witness’s safety. See
Irby, 327 S.W.3d at 145; see also Johnson, 433 S.W.3d at 553-555; Carpenter v. State, 979
S.W.2d 633, 635 (Tex. Crim. App. 1998) (en banc) (concluding that the trial court did not
err in refusing to allow the defense to cross-examine a witness about pending charges
when the defense failed to demonstrate a causal connection between the witness’s
pending federal charges and his testimony in his state case). Accordingly, we overrule
appellant’s fourth issue.
V. EVIDENCE OF SERIOUS BODILY INJURY AND CAR-CHASE EVIDENCE
In his fifth issue, appellant asserts that the trial court abused its discretion by
admitting evidence of Pinkie’s injuries and appellant’s attempts to evade police.
A. Standard of Review
We review a trial court’s admission of evidence for an abuse of discretion. Torres
v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). A trial court abuses its discretion if
it acts arbitrarily or unreasonably, without reference to any guiding rules or principles.
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). When considering a
trial court’s decision to admit or exclude evidence, we will not reverse the trial court’s
ruling unless it falls outside the “zone of reasonable disagreement.” Id. at 391; see
Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).
B. Facts
At trial, the State proffered testimony about the injuries Pinkie sustained and
appellant’s subsequent flight from authorities. Specifically, witnesses testified that
Butler v. State Page 18 appellant, Pinkie, and Roberson were involved in an argument and that appellant shot
Pinkie through a door when he left Pinkie’s trailer house. The evidence established that
the bullet went through Pinkie’s body, causing extensive injuries, and ultimately landed
on the couch in the residence. After the incident, appellant fled the scene and engaged
in a high-speed chase through multiple counties before finally being stopped by law
enforcement in Waller County.
C. Evidence of Pinkie’s Injuries
For several reasons, we cannot say that the trial court abused its discretion in
admitting evidence of Pinkie’s injuries. First, we emphasize that the State alleged in the
indictment that appellant used a firearm that, in the manner of its use or intended use,
was capable of causing death or serious bodily injury. Therefore, one of the elements
that the State had to prove was whether the victim, Pinkie, was in imminent danger of
serious bodily injury when appellant purportedly shot through the door. Section
1.07(a)(46) defines “[s]erious bodily injury” as “bodily injury that creates a substantial
risk of death or that causes death, serious permanent disfigurement, or protracted loss
or impairment of the function of any bodily member or organ.” Id. § 1.07(a)(46) (West
Supp. 2014). The State proffered ballistics and crime-scene evidence demonstrating that
Pinkie suffered serious bodily injuries—from which she almost died—during the
commission of the offense. Because the complained-of evidence addressed an element
of the charged offense, we conclude that the evidence was relevant. See TEX. R. EVID.
401; see also Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001) (“The proffered
Butler v. State Page 19 evidence is relevant if it has been shown to be material to a fact in issue and if it makes
that fact more probable than it would be without the evidence.”).
Additionally, appellant argues that the probative value of the evidence of
Pinkie’s injuries was outweighed by the prejudicial effect. In particular, appellant
complains that the State presented pictures of Pinkie’s injuries and scars, her
nightgown, the bloody interior of the car occupied by Pinkie, and bloody crime-scene
pictures. Although the evidence depicts gruesome and bloody details, they are no more
gruesome or bloody than the facts of the case. See Shuffield v. State, 189 S.W.3d 782, 787
(Tex. Crim. App. 2004) (stating that complained-of photographs only showed the
victim’s injuries and were no more gruesome than expected); see also Sosa v. State, 230
S.W.3d 192, 196 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (concluding that the
prejudice caused by photographs did not substantially outweigh their probative value
and noting that the photographs were no more gruesome than the facts of the offense).
Furthermore, the complained-of evidence provided a necessary visual component to,
and understanding of, witnesses’ testimony regarding what they observed regarding
the nature and extent of the victim’s serious bodily injuries. We therefore conclude that
the probative value of the evidence depicting Pinkie’s injuries was not substantially
outweighed by the alleged prejudice caused. See TEX. R. EVID. 403; see also Gigliobianco v.
State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006); Montgomery, 810 S.W.2d at 389
(noting that, when a trial court balances the probative value of the evidence against its
danger of unfair prejudice, a presumption exists that the evidence will be more
probative than prejudicial).
Butler v. State Page 20 D. Evidence of the Car Chase
Next, appellant complains that the trial court erred in admitting evidence that he
fled the scene of the crime and participated in a car chase in Waller County, Texas. We
disagree.
“Evidence of flight or escape is admissible as a circumstance from which an
inference of guilt may be drawn.” Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App.
1994) (citations omitted); see Wachholtz v. State, 296 S.W.3d 855, 859 (Tex. App.—
Amarillo 2009, pet. ref’d) (stating that an effort to escape evinces a consciousness of
guilt, which, in turn, is evidence of culpability). “To support the admission of evidence
of escape from custody or flight it must appear that the escape or flight have some legal
relevance to the offense under prosecution.” Bigby, 892 S.W.2d at 883 (citations
omitted);
Here, the evidence revealed that immediately after shooting and seriously
injuring Pinkie, appellant fled from the scene in Brazos County. Appellant’s flight
continued with a high-speed car chase in Waller County shortly thereafter.
Consequently, we conclude that the evidence demonstrated a relationship between the
offense and appellant’s flight; and as such, we hold that the evidence was admissible to
show appellant’s consciousness of guilt. See Bigby, 892 S.W.3d at 883; see also Wachholtz,
296 S.W.3d at 859; Burks v. State, 227 S.W.3d 138, 148 (Tex. App.—Houston [1st Dist.]
2006, pet. ref’d) (“Taking into consideration appellant’s concession that he was aware of
the police officer’s motive to arrest him, we hold that evidence of appellant’s flight on
seeing the officer wearing the jacket marked ‘POLICE’ was relevant and admissible to
Butler v. State Page 21 show, without violating rule 404(b), that appellant was conscious of his guilt.”).
Therefore, based on the foregoing, we overrule appellant’s fifth issue.
VI. EVIDENTIARY SUFFICIENCY
In his second issue, appellant contends that the evidence supporting his
conviction is insufficient “because the felony offense of deadly conduct does not include
an offense where there is bodily injury to another person.” Appellant also argues that
the evidence is insufficient because the trial court failed to make the State elect between
manner and means alleged in separate paragraphs of the indictment, and because “[t]he
trailer door was closed, so the State’s proof of at or in the direction of individuals with
Appellant knowing that Pink[ie] Hardy or David Roberson were inside the habitation is
insufficient.”
“The standard for determining whether the evidence is sufficient to support a
conviction is ‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293-94 (Tex. Crim.
App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed.
2d 560 (1979)) (emphasis in original); Brooks v. State, 323 S.W.3d 893, 898-99 (Tex. Crim.
App. 2010) (plurality op.). The factfinder is the exclusive judge of credibility of the
witnesses and of the weight to be given to their testimony. Brooks, 323 S.W.3d at 899;
Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). Reconciliation of conflicts in
the evidence is within the factfinder’s exclusive province. Wyatt v. State, 23 S.W.3d 18,
Butler v. State Page 22 30 (Tex. Crim. App. 2000). We resolve any inconsistencies in the testimony in favor of
the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). We do not engage
in a second evaluation of the weight and credibility of the evidence, but only ensure the
jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App.
1993); see Harris v. State, 164 S.W.3d 775, 784 (Tex. App.—Houston [14th Dist.] 2005, pet.
ref’d).
The sufficiency of the evidence is measured by reference to the elements of the
offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four
things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s
theories of liability; and (4) adequately describes the particular offense for which the
defendant was tried. Id.
Under section 22.05(b) of the Penal Code, a person commits the offense of deadly
conduct by discharge of a firearm “if he knowingly discharges a firearm at or in the
direction of: (1) one or more individuals; or (2) a habitation, building, or vehicle and is
reckless as to whether the habitation, building, or vehicle is occupied.” TEX. PENAL
CODE ANN. § 22.05(b). Contrary to appellant’s assertion, section 22.05(b) does not
require the State to prove that the victims were not injured as an element of the offense.
See id. In fact, most of the cases relied upon by appellant involve a prior iteration of
section 22.05, which did not address the offense of deadly conduct by discharging a
Butler v. State Page 23 firearm. See generally Bell v. State, 693 S.W.2d 434 (Tex. Crim. App. 1985); Gallegos v.
State, 548 S.W.2d 50 (Tex. Crim. App. 1977); Scott v. State, 861 S.W.2d 440 (Tex. App.—
Austin 1993, no pet.). In Benjamin v. State, the charged offense involved section 22.05(a),
which provides that a person commits the offense of deadly conduct if he recklessly
engages in conduct that places another in imminent danger of serious bodily injury. See
69 S.W.3d 705, 707-08 (Tex. App.—Waco 2002, no pet.); see also TEX. PENAL CODE ANN. §
22.05(a). Furthermore, in Benjamin, this Court stated that section 22.05(a) applies to
those acts that fall short of injuring another. 69 S.W.3d at 708. Nothing in the Benjamin
opinion states that the same is true for section 22.05(b). See id. As such, we are not
persuaded by appellant’s contention that the evidence is insufficient to support his
conviction “because the felony offense of deadly conduct does not include an offense
where there is bodily injury to another person.”
Appellant also argues that the evidence supporting his conviction is insufficient
because the trial court did not require the State to elect between alternative manner and
means of committing deadly conduct. In particular, appellant contends that the failure
to elect resulted in a misjoinder of offenses that rendered the evidence insufficient.
However, appellant does not cite any relevant authority explaining how the purported
misjoinder of offenses rendered the evidence insufficient. See TEX. R. APP. P. 38.1(i).
In any event, based on our reading of the jury charge, we cannot say that the trial
court erred in failing to require the State to elect between alternative methods of
committing the same offense. The jury charge provided as follows, in relevant part:
Butler v. State Page 24 Now, if you find from the evidence beyond a reasonable doubt that on or about May 28, 2011 in Brazos County, Texas, the defendant, QUINCY BULTER, did then and there knowingly discharge a firearm at or in the direction of one or more individuals; namely: Pinkie Hardy or David Roberson, or that the defendant did then and there knowingly discharge a firearm at or in the direction of a habitation, and the defendant was then and there reckless as to whether the habitation was occupied; to wit: by discharging said firearm at a habitation knowing that Pinkie Hardy or David Roberson were inside of said habitation, then you will find the defendant guilty of the offense of Deadly Conduct as charged in the indictment.
(Emphasis added). As provided in section 22.05(b), the language above provided
alternative means for committing deadly conduct. The Court of Criminal Appeals has
held that the trial court does not commit error by failing to require the State to elect
between alternative methods of committing the same offense. See Huffman v. State, 267
S.W.3d 902, 909 (Tex. Crim. App. 2008); Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim.
App. 1991). Furthermore, the Kitchens Court stated that: “And although the indictment
may allege the differing methods of committing the offense in the conjunctive, it is
proper for the jury to be charged in the disjunctive.” 823 S.W.2d at 258. Such is the case
here. Therefore, based on the foregoing, we conclude that this contention lacks merit.
And finally, appellant asserts that “[t]he trailer door was closed, so the State’s
proof of at or in the direction of individuals with Appellant knowing that Pink[ie]
Hardy or David Roberson were inside the habitation is insufficient.” We disagree that
the fact that the trailer door was closed somehow renders the evidence insufficient.
Donita Williams, Pinkie’s cousin, testified that she was present at Pinkie’s trailer
house on the night in question. Williams observed a white Chevrolet Malibu, which
was later identified as appellant’s car, parked nearby. Williams testified that the door
Butler v. State Page 25 to the trailer was closed when she heard a gunshot. Williams then heard Pinkie
screaming, “My baby, my baby,” and saw the shooter get in the Malibu “and just
casually drove off like nothing happened.”
Pinkie noted that she and Roberson got into an argument at her trailer house the
night of the shooting. Appellant was also present at the trailer house. Initially, Pinkie
told Roberson to leave, but he refused to do so. Thereafter, appellant came out of a
bedroom holding a gun and began arguing with Roberson. At this point, Pinkie asked
appellant to leave. Appellant complied, and Pinkie shut the door to the trailer house.
Through the peep hole in the door, Pinkie watched appellant make his way towards the
white Malibu. Pinkie and Roberson continued their argument until Pinkie heard a
gunshot. Pinkie testified that she immediately felt a burning pain and exclaimed, “He
shot me in my pussy.”
Roberson testified that, on the night in question, he saw a white vehicle parked
near Pinkie’s trailer house. Roberson also noted that he and Pinkie were arguing on the
night in question and that appellant eventually got involved in the argument. While
appellant and Roberson yelled insults at one another, Roberson saw a black semi-
automatic handgun in appellant’s hand. Appellant held the gun at his side. Roberson
recalled that Pinkie asked appellant to leave the trailer house and that appellant did so.
Once appellant left the trailer house, Roberson closed and locked the door. Then,
Roberson and Pinkie resumed their argument; however, shortly thereafter, Roberson
heard a gunshot and saw Pinkie fall to her knees with blood “shooting out” from her
leg. Roberson picked up Pinkie, kicked open the door, and searched for a vehicle to
Butler v. State Page 26 transport Pinkie to the hospital. When Roberson opened the door, he saw appellant.
Roberson told appellant, “put her in the motherfucking car. You shot her.” Appellant
stood beside the white Malibu with his hands on the top of the car and with the gun in
one hand. Roberson then ran next door. At that time, Roberson recalled hearing tires
squeal and seeing appellant drive away.
Viewing the evidence in the light most favorable to the verdict, we conclude that
a rational factfinder could have determined that: (1) the door to the trailer house was
closed at the time appellant fired the gun; (2) appellant, who had been involved in an
argument at the trailer house, knowingly discharged a firearm at or in the direction of
Pinkie and Roberson; and (3) appellant was reckless as to whether the habitation was
occupied when he fired the shot. See TEX. PENAL CODE ANN. § 22.05(b); see also Jackson,
443 U.S. at 319, 99 S. Ct. at 2789; Johnson v. State, 364 S.W.3d 292, 293-94 (Tex. Crim. App.
2012). Accordingly, we hold that the record contains sufficient evidence to support
appellant’s conviction for engaging in deadly conduct by discharging a firearm. See
TEX. PENAL CODE ANN. § 22.05(b); see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Johnson, 364 S.W.3d at 293-94. We overrule appellant’s second issue.
VII. CONCLUSION
Having overruled all of appellant’s issues on appeal, we affirm the judgment of
the trial court.
AL SCOGGINS Justice
Butler v. State Page 27 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed January 8, 2015 Do not publish [CRPM]
Butler v. State Page 28