Butler, Quincy Deshan

121-IS
COURT OF
IN THE
CRIMINAL APPEALS
ORIGINAL
OF TEXAS
* * * * * * * * * * * * -.It******** * * * * * * * * * * * * * * * * * *
QUINCY DESHAN BUTLER,
Petitioner/
vs.
THE STATE OF TEXAS,
Respondent•
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PETITIONER'S "PETITION FOR DISCRETIONARY REVIEW"
*****************************************
CASE NUMBER #10-13-00430-CR
TRIAL COURT NUMBER #12-00472-CRF-272
******************************************
Quincy Deshan Butler
c/o TDCJ-ID #1899541
Allred Unit, 2101 FM 369 N.
Iowa Park, Texas 76367
(pro se litigant)
FILED IN
COURTOF CRIMINAL APPEALS
FEB 20 2015
WffOFCWMINALAPPEALS
Abel Acosta, Clerk
FEB 17
Ab®S Acosta, Clerk
(i
IDENTITY OF THE PARTIES
CASE NUMBER #10-13-00430-CR
QUINCY DESHAN BUTLER,
Petitioner,
vs.
THE STATE OF TEXAS
Respondent.
QUINCY DESHAN BUTLER (is proceeding in a pro se manner with PDR)
c/o TDCJ-ID #1899541
Allred Unit, 2101 FM 369 N.
Iowa Park, Texas 76367
THE STATE OF TEXAS is represented by the following:
Mr. Kyle Hawthorne
4343 Carter Creek Hiway, Ste. 100
Bryan, Texas 77803
(khawthorne@bruchez.com.)
Mr. Jason B. Goss
Asst. Distorney
300 East 26th Street
Bryan, Texas 77803
Mr. Ryan C. Calvert
Asst. District Attorney
300 East 26th Street
Bryan, Texas 77803
Honorable Judge Travis Bryan, III
300 East 26th Street
Bryan, Texas 77803
APPELLATE COUNSEL FOR PETITIONER IS:
Ms. Mary Jo Holloway
10222 Old Stagecoach
Chappell Hill, Texas 77833
(. ii;
TABLE OF CONTENTS
COVER PAGE i
IDENTITY OF PARTIES ii
TABLE OF CONTENTS , iii
INDEX OF AUTHORITIES iv, v
STATEMENT OF THE CASE vi
STATEMENT OF JURISDICTION vii, vi-ii
ISSUES PRESENTED FOR REVIEW ix
STATEMENT OF FACTS x, xi
ARGUMENTS & AUTHORITIES OF ISSUES IN QUESTION
ISSUE #1 pg. 1
ISSUE #2 pg. 2
ISSUE #3 pg. 4
ISSUE #4 pg. 6
ISSUE #5 pg. 13
PRAYER FOR RELIEF pg. 15
UNSWORN DECLARATION pg. 15
(iii)
INDEX OF AUTHORITIES
CASES
TEXAS COURTS: 2d & 3d;
ALONZO vs. STATE, 353 S.W.3d 78 pg.. 1
ALVARADO vs. STATE, 704 S.W.2d 36 pg.. 1
BROWN vs. STATE, 122 S.W.3d 794 pg.. 9
CLEWIS vs. STATE, 922 S.W.2d 126 pg.. 4
CORONADO vs. STATE, 351 S.W.3d 315 pg.-. 9
CORTEZ vs. STATE, 683 S.W.2d 419 pg.. 6
FERGUSON vs. STATE", 622 S.W.2d 846 pq- 13
HAMMER vs. STATE, 296 S.W.3d 555 pg. 13
JACKSON vs. STATE, 482 S.W.2d 864 pg. 13
KELLER vs. WILSON, 168 S.W.3d 802 pg.. 3
KESTERSON vs. TEXAS, 997 S.W.2d 290 pg.. 7
KOEHLER vs. state, 679 S.W.2d 6 pg. 12
MERRELL DOW PHARMS., INC. vs. HAVENER, 953 S.W.2d 706 pg.. 3
POLLARD vs. STATE, 255 S.W.3d 184 pg. 13
RICHARDSON vs. STATE, 257 S.W.2d 308 pg.. 6
SAGLIMBENI vs. STATE, 100 S.W.3d 429 pg- 12
SANSOM vs. STATE, 292 S.W.3d 112 pg. 12
THOMAS vs. STATE, 621 S.W.2d 158 pg. 13
VIRTS vs. STATE, 739 S.W.2d 25 pq. 12
WILLIS vs. SATTE, 790 S.W.2d 307 pg. 1
FEDERAL 2d & 3d:
BIGLEY vs. DRETKE, 402 F.3d 551 pg. 9
U.S. vs. DIAZ, 637 F.3d 592 pg. 9
U.S. vs. SANCHEZ, 961 F.2d 1169 pg. 3
U.S. vs. WILCOX, 631 F.3d 740 pg. 9
U,S. SUPREME COURT:
DELAWARE vs. VAN ARSDALL, 475 U.S. 673 pg. 7
DOUGLAS vs. ALABAMA, 85 S. Ct. 1074 pg. 7
CHAMBERS vs. MISSISSIPPI, 93 S. Ct. 1038 pg. 10, 11
IN RE WINSHIP, 90 S. Ct. 1068 pg- 4
MATTOX vs. U.S., 15 S. Ct. 337 pg. 7
U.S. vs. APFELBUAN, 100 S. Ct. 948 pg. 7
U.S. vs. MANDUJUANO, 96 S. Ct. 1768 pg. 7
U.S. vs. MANCHIK, 106 S. Ct. 938 pg. 2
U.S. vs. WONG, 97 S. Ct. 1823 pg. 7
WILLIAMS vs. TAYLOR, 120 S. Ct. 1495 pg. 4
RULES & OTHER RESOURCES:
U.S. CONST. AMEND. 1 pg. 13
U.S. CONST. AMEND. 4 pg. 13
U.S. CONST. AMEND. 6 1, 7, 12, 13
U.S. CONST. AMEND. 14 pg. 12, 13
TEX. CONST, article I, §10 pg. 6
flv)
TEX. PENAL CODES, §22.05 pg. 1
TEX. PENAL CODE, §46.04 pg. 1
TEX. PENAL CODE, §6.01(a) pg. 1
TEX. CODE CRIM. PROC, article 1.05 pg. 7
TEX. GOV'T CODE, §22.001(a) (6) pg. 1
TEX.RULE APPELLATE PROC., rule 44.2(a) 1, 6, 11
YOUNGER "CONFRONTEATION, 24 Washburn L.J. 1, 28 pg. 9
(v )
STATEMENT OF THE CASE
NATURE OF THE CASE: The Petitioner was arrested and indicted for
the alleged criminal offenses of "DEADLY CONDUCT," and "UNLAWFUL
POSSESSION OF A FIRE ARM BY A FELON," pursuant to Texas Penal Code
sections §22.05 (Deadly Conduct) and §46.04 (Unlawful possession
of a Firearm by a Felon), under indictment number #12-00472-CRF-272,
in the County of Brazos, Texas.
PROCEEDINGS IN THE TRIAL COURT: The trial court during the First
trial "declared a mistrial" and on the 2nd day of May, 2013, the
10th Court of Appeals of Texas reversed the trial courts decision.
Also, the trial court on the 17th-18th day of September, 2013 had
declared yet another "mistrial," with the State requesting that all of their
exhibits be withdrawn for preparation of the third trial. And, the third trial
began on the 20th day of October, 2013 where the Petitioner was found guilty of
Count One of the Indictment, "DEADLY CONDUCT," with a deadly weapon, and the
jury set punishment at "Sixty-two" (62) years incarceration within the confine
ment of the Texas Department of Criminal Justice-Institutions Division.
PROCEEDINGS IN THE APPEALS COURT: On the 8th day of January, 2015, the 10th
Court of Appeals of Texas, "AFFIRMED" the judgment of the trial court, after
Petitioner, through appellate counsel filing his direct appeal on the 14th day
of July, 2014 after providing proper and timely notice of appeal. The Honorable
Justices: Chief Justice Gray, Justice Davis, and Justice Scoggins rendered the
opinion AND judgment on the issues raised by the Peititioner.
(vi)
STATEMENT OF JURISDICTION
The Court of Criminal Appeals of Texas has jurisdiction over this
appeal, and petitioner's "Petition for Discretionary review" because
the 10th Court of Appeals of Texas has committed an error of law of
such importance to the state's jurisprudence that it would be uncon
stitutional should it not be corrected. [Texas Government Code, §22.
001(a)(6)],
In it's decision to deny relief of Petitioner's issues in regards to trial
court error, the 10th Court of Appeals of Texas failed to make an appropriate
analysis of the State's alleged specific allegations of manner and means of the
offense in order to bar subsequent prosecution for the same offense and to give
the petitioner precise notice of the offense in which he is being charged.
The court appeals failed to attribute the verdict to "bias, irrationality or
to some other peculiarity where the jury's verdict is clearly wrong and mani
festly unjust" as to the petitioner's allegation of the "insufficiency of the
evidence" because of the defective indictment of issue number one.
The appellate court failed to properly review and decide petitioner's issue
number three, when it affirmed the trial court's judgment and not remand for
further proceedings because the trial court committed error in denying Defendant's
Motion to Dismiss in accordance to the facts and indictment's failure to provide
adequate notice of what the petitioner was to defend during trial.
The court further denied petitioner his right to a "fair and meaningful ap
pellate hearing process" when the court failed to properly evaluate trial error
and prosecutorial misconduct in denying petitioner his right to Sixth Amendment
Confrontation right, by alleging intended fowl play of threatening the life,
health and safety of the state's star witness without providing any proof or
witnesses of such claim to and for the purpose of "limiting petitioner to his
right to cross-examine the state's star witness." And for prosecutorial mis
conduct of violating the BRADY doctrine when failing to provide the defense with
notice of such denial of supporting evidence to effectively impeach the state's
star witness.
Appellate court failed to view and apply issue Five to the appropriate standard
of weighing the probative value of the evidence which had no possible supporting
«/ii!
weight to the sufficiency of the evidence to guilt or innocence to the charge
alleged in Count Two of the indictment; which was frivolous and misleading to
the fact finders, and was produced and used by the state for the sole purpose
of incriminating, prejudicing and harming the defense.
(viii)
ISSUES PRESENTED FOR REVIEW
ISSUE #1: DID THE DECISION OF THE TRIAL JUDGE TO DENY PETITIONER'S MOTION
TO QUASH THE INDICTMENT DEPRIVE PETITIONER OF HIS RIGHT'S AS
SECURED AND GUARANTEED UNDER THE SIXTH AMENDMENT TO "AN IMPARTIAL
JURY" TRIAL; AND TO BE PROPERLY INFORMED OF THE "NATURE AND CAUSE
OF THE ACCUSATIONS" AGAINST HIM...?
ISSUE #2: WAS PETITIONER'S "DUE PROCESS & EQUAL PROTECTION OF THE LAWS"
RIGHTS VIOLATED WHEN THE TRIAL COURT ALLOWED EVIDENCE "ILLEGALLY
INSUFFICIENT" TO BE ENTERED INTO THE TRIAL, LESSENING THE STATES
BURDEN TO PROVE "BEYOND A REASONABLE DOUBT" EVERY ELEMENT OF THE
OFFENSE CHARGED IN THE INDICTMENT?
ISSUE #3: DID JUSTICE AL SCOGGINS, DECISION FOR THE TENTH COURT OF APPEALS
OF TEXAS, VIOLATE "WELL ESTABLISHED FEDERAL LAW, AS ESTABLISHED BY
THE U.S. SUPREME COURT, WHEN THE DECISION WAS 'CONTRARY TO, OR AN
UNREASONABLE APPLICATION OF SUPREME COURT PRECEDENT" WHEN "AFFIR
MING THE TRIAL COURTS DENYING PETITIONER'S MOTION FOR MISTRIAL?"
ISSUE #4: WAS PETITIONER'S SIXTH AMENDMENT RIGHT VIOLATED WHEN THE TRIAL
COURT RESTRICTED "CROSS-EXAMINATION" OF THE COMPLAINING WITNESS
REGARDING HIS "PAST DISHONESTY AND BEING A LONG TIME CONFIDENTIAL
INFORMANT," WHEN THE STATE ALLEGED THE SAFETY & HEALTH OF THE WIT
NESS, CREATING A FALSE "IMPRESSION" OF PETITIONER'S CHARACTER BE
FORE THE JURY WITHOUT PRESENTING EVIDENCE, WITNESSES OR ANY OTHER
SUPPORTING FACTS TO SUBSTANTIATE THE NEED TO PLACE SUCH LIMITATIONS
ON THE DEFENSES CROSS-EXAMINATION OF THE STATES STAR WITNESS?
ISSUE #5; WAS PETITIONER'S SECURED AND GUARANTEED DUE PROCESS RIGHTS PROTECTED
WHEN THE TRIAL COURT ALLOWED THE STATE TO PRESENT EXTRANEOUS OFFENSES
AND IRRELEVANT FACTS TO SHOW THAT PETITIONER WAS A "CRIMINAL OR BAD
CHARACTER IN GENERAL?"
(ix)
STATEMENT OF FACTS
The opinion of the court of appeals correctly states the nature of the case.
The Court, however, omitted some facts relied on by the petitioner. Thus, the
petitioner presents this his summary of facts omitted from the court's opinion.
Petitioner challenged the constitutional test required for a valid indictment,
and the elements of the offense and every fact or circumstance necessary to com
plete the description thereof alleged therein the charging indictment; and the
trial courts denying the Motion to Quash the Indictment as the Texas Code of
Criminal Procedures illustratively defines defects in substance to include "That
it contains matter which is a legal defense or bar to prosecution." And the terms
set forth in the second paragraph charging Petitioner with a conduct of being
reckless is misconstrued, impermissible or misdirected to the meaning expressly
provided by Texas Legislature of "intent" in the instant case, thus, reveals
constitutional error that is subject to a harmless error review, and the court
of appeals should have reversed the judgment of conviction, and remanded back to
trial court.
Further, the challenge to the legally insufficient evidence should have been
reviewed "de novo." In accordance to "well established federal law, established
by the U.S. Supreme Court," as well as the Texas Court of Criminal Appeals, a
grand jury indictment must set forth each essential element of an offense, and to
be valid, an indictment must charge positively and not inferentlly everything
essential with clarity and certainty so that the accused may know with precise
notice of what he is defending against. In the instant case matter, the trial
court had twice prior to the instant case, dismissed the charges/indictment for
reasons of the defects in the indictment. Because of the indictment failing to
set forth with specific allegations of the manner and means of which he was to
prepare a defense, the evidence presented in regards to the second paragraph is
absent of vital facts and is no more than a scintilla of mere suspicion of the
facts that exists of the opposite set of facts.
The trial court's denial of dismissal of the case in Petitioner's Motion to
Mistrial, violated well "established law, as decided by the U.S. Supreme Court,"
when it's decision to deny motion was "objectively unreasonable" when such a
necessity existed or the ends of public justice would otherwise be defeated, and
that the trial court failed to consider alternatives before denying Petitioner's
motion for mistrial.
( x)
Petitioner was denied his right to the Sixth Amendment Clause of "Confrontation"
which confers upon the accused "in all criminal prosecutions the right to be
confronted with witnesses against him." And because of prosecutorial misconduct
by the state's attorney, Petitioner was deprived of this right which had the fact
finders, the jurors, in this case been given an opportunity to hear and evaluate
the trustworthiness of the state's star witness, and the defense been provided a
fair warning by the state's attorney of the states inttention to seal and prevent
the defense from properly cross-examining the star witness, then the defense would
have been prepared to argue and present caselaw in support of a defense against
the states alleged incident of the witness being in danger of health and security
because of an alleged incident in which the transcripts of the witness providing
information against the petitioner and other persons for a lesser crime/punishment
or the dismissal of pending criminal charges. The defense could have also inter
viewed the alleged persons whom the transcripts were provided and called them as
witnesses for the defense in rebut of the state's attorney in his allegations of
the safety and security of the witness, and the no evidence the states attorney
failed to provide in support of sealing and refusing the defense to cross-examine
its star witness.
Petitioner was denied a fair and impartial hearing tribune when the trial court
allowed the state to introduce and admit evidence of irrelevant evidence into the
trial for the consideration of the fact finders for the purpose of nothing more
than to show "bad character and a means of guilt" without providing evidence and
proof of said alleged facts. Irregardless of whether petitioner may have or may not
have committed any criminal act as is alleged in the indictment, no evidence was
provided or proved beyond a reasonable doubt that Petitioner had committed any
serious bodily injury as testified during trial, because: (1) no actual witness
saw and testified that it was in deed and fact the petitioner who own and operated
the alleged weapon which was the cause and intentional injurys of the alleged
victim, Ms. Pinky Hardy; and (2) no actual scientific forensic tests results
showed or proved beyond a reasonable doubt that the weapon used in the alleged
crime was the same as the one owned and in possession of the petitioner. Further
more, no evidence was provided that petitioner gave chase because he was guilty
of the crimes in the defective indictment. In fact, evidence existed that rebutted
the states claims of guilt, when evidence of drugs and other crimes were found
in petitioners car after the chase, and of prior criminal conduct. Therefore, the
trial court was in error and petitioner wrongfully convicted without proof of guilt
except for the states admitting irrelevant evidence of guilt.
(xi )
ARGUMENTS & AUTHORITIES IN SUPPORT OF ISSES IN QUESTION
ISSUE #1; DID THE DECISION OF THE TRIAL JUDGE TO DENY PETITIONER'S MOTION
TO QUASH THE INDICTMENT DEPRIVE PETITIONER OF HIS RIGHTS AS
SECURED AND GUARANTEED UNDER THE SIXTH AMENDMENT TO "AN IMPARTIAL
JURY" TRIAL; AND TO BE PROPERLY INFORMED OF THE "NATURE AND CAUSE,
OF THE ACCUSATIONS" AGAINST HIM...?
Since Petitioner is raising a Constitutional error, the standard of review is "(a)
If the appellate record in a criminal case reveals constitutional error that is
subject to a harmless error review, the court of appeals must reverse a judgment
of conviction or punishment unless the court determines beyond a reasonable doubt
that the error did not contribute to the conviction or punishment." [Tex.R.App.
Pro., rule 44.2(a)]. The U.S. Constitution states that: "In all criminal prose
cutions, the accused shall enjoy the right to a—public trial, by an impartial
jury and to be informed"of the nature and cause of the accusation—". [U.S.
Consti., amend. 6].
In the instant case, the Petitioner was entitled to a specific allegation of
the manner and means of committing the alleged offense in which he was charged.
In the instant indictment, the state alleged in a two count indictment alleged
various means in which petitioner allegedly committed the alleged criminal offense.
Thus,^failing to provide certain and precise notice of the offense with which he
wahs being charged so that he may prepare an effective defense against those charges.
The state alleged that petitioner acted with specific intent of kknowingly," then
also charged that he acted "recklessly."
This court in many cases has held that an accused cannot act "intentionally
or knowingly," and act in a "reckless" manner at the same time in the same in
stant. [ALONZO vs. STATE, 353 S.W.3d 778 (Tex.Crim.App.2011); WILLIS vs. STATE,
790 S.W.2d 307, 313-15 (Tex.Crim.App.1990)]. This Court further held in ALVARADO
vs. STATE, 704 S.W.2d 36, 38 (Tex.Crim.App.1985)], that the "significant aspect
of Texas Penal Code, §601(a) is that it "distinquishes culpable mental states
from the requirements of voluntary act or omission to a predicate criminal re
sponsibility. "
During his direct appeal, Petitioner challenged the sufficiency of the indict
ment as to the trial judge's dismissal of his motion to quash the indictment through
his timely and required "objections." twice prior to the trial in this matter,
petitioner presented facts of the very indictment being defective and without
proper substance as to properly provide notice to the accused as to what he was
(1)
being charged with so that he could effectively prepare for trial.
The element in question is "the two separate manner and means theories" of
charging petitioner with a crime, which violates the "DOUBLE JEOPARDY CLAUSE"
of both the Texas and United States Constitutions, when the state alleged in
Count One that petitioner committed an offense of DEADLY CONDUCT by "knowingly
discharge a firearm..." and "did then and there use or exhibit a deadly weapon
...capable of causing death or serious bodily injury".—And in paragragph two
alleged that the petitioner acted both knowingly and reckless—discharged the
firearm ata habitation. Then in Count Two, alleged that petitioner "intentionally
and knowingly possessed a firearm," after being convicted of an unrelated felony
charge, and went on to allege in violation of the DOUBLE JEOPARDY CLAUSE, that
petitioner "did then and there use or exhibit a deadly weapon, to-wit: a firearm."
Thus, alleging the same facts and individuals as victims to this illegal charge.
The U.S. Supreme Court has determined that once a "trial takes place...there
is little a court of appeals can do to restore to a defendant that which was lost;
the right not to face a prosecution intiated solely at the state's behest." [U.S.
vs. MECHANIK, 475 U.S. 66, 71, 106 S. Ct. 938, 89 L. Ed. 2d 50 (1986)]. The trial
court, as well as the court of appeals in this matter failed to engage in testing
the charging instrument in regards to whether it provided the proper adequate
notice to the accused. Neither the trial court nor the appellate court identified
the elements of the offense in which petitioner was charged providing proper and
adequate notice, which include: the forbidden conduct; the required culpability,
if any; any result; and the negation of the offense.'And secondly, neither court
applied the test for an alternative manner and means in which the charging instru
ment must allege with specifically manner and means of the commission in which
the state intended to rely upon during trial.
Therefore, because of the fundamentally defective and void indictment for
"form and substance," petitioner was denied his constituional right to be informed
of the charges against him and the affects of the charging instrument in which he
couold prepare a defense against the charges against him. And because of such
denial of constitutional protections, and the state's failure to correct the
invalid and fundamentally defective and void indictment when having an opportunity
to do so, this Court in all things should reverse the trial courts conviction
and punishment and remand back for further proceedings.
ISSUE #2: WAS PETITIONER'S "DUE PROCESS & EQUAL PROTECTION OF THE LAWS"
RIGHTS VIOLATED WHEN THE TRIAL COURT ALLOWED EVIDENCE "ILLEGALLY
(2)
INSUFFICIENT" TO BE ENTERED INTO THE TRIAL, LESSENING THE STATES
BURDEN TO PROVE "BEYOND A REASONABLE DOUBT" EVERY ELEMENT OF THE
OFFENSE CHARGED IN THE INDICTMENT?
In reviewing a legal sufficiency challenge to the evidence, courts credit
evidence that supports the verdict if reasonable jurors could have done so and
disregard contrary evidence unless reasonable jurors could not have done so. [CITY
OF KELLER vs. WILSON, 168 S.W.3d 802, 827 (Tex.2005)]. A legal sufficieny chal
lenge will be sustained when there is a complete absence. ,of evidence of a vital
fact, thus, the court is barred by rules of law or of evidence from giving weight
to the only evidence offered to prove a vital fact, when that evidence offered
to prove a vital fact is nothing more than a scintilla, or the evidence conclu
sively establishes the opposite of the vital fact. [MERRELL DOW PHARMS., Inc. vs.
HAVNER, 953 S.W.2d 706, 711 (Tex.1997)].
As previously argued in ISSUE #1, and hereby incorporated into ISSUE #2, as
if presented and argued herein, this Court must "reverse and remand" this case
back to the trial court for further proceedings based upon the "insufficieny of
the evidence" to support the charge as alleged in the indictment. Although the
jurors are free to choose among reasonable constructions of the evidence, however,
if the evidence gives equal or nearly equal circumstantial support to a theory of
guilt or innocence, this court must reverse the conviction and punishment, as under
these circumstances "a reasonable jury must necessarily entertain a reasonable
doubt." [U.S. vs. SANCHEZ, 961 F.2d 1169, 1173 (5th Cir.1992)]. Petitioner con-
tneds that there was a fatal variance between the crimes alleged/charged and the
the crime that the state allegedly proved at trial. To prove that petitioner was
guilty of the alleged crimes in both counts one and two, as alleged by the state
as petitioner knowingly committed the criminal offense in count one; then alleged
a separate and different element for count one as being reckless in his culpable
state of mind in committing the alleged offense. It has been established that one
cannot act "intentionally/knowingly," and "recklessly" at the same time. If a
person acts voluntarily to commit an illegal act, then, he does not act with a
reckless mental state of mind. And because the state allegedly proved the case
of petitioner allegedly shooting Ms. Hardy, therefore, there cannot be evidence
to support that petitioner acted "reckless" in shooting the victim Ms. Hardy. The
state therefore, failed to prove beyond a reasonable doubt every facial allegation
of the indictment, and the theroies presented in the indictment as to: "knowingly
discharge a firearm," and act "reckless as to whether the habitation was occupied"
while discharging the firearm at...the habitation.
(3)
This is true irregardless of whether the state intended to charge that particular
offense. The jury charge must not enlarge the offense alleged based upon the in
dictment charge, thus, authorizing the jury to convict on a basis or theroy per-
mited in accordance to law where it is clearly established that a person cannot
act both "intentionally/knowingly," and "recklessly" at the same time in commit
ting an alleged criminal offense1 "The due process clause protects an accused
against conviction except upon proof beyond a reasonable doubt of every fact ne
cessary to constitute the crime with which he is charged." [IN RE WINSHIP, 397
U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)].
Therefore, the verdict must be set aside pursuant to the legally sufficiency
of the trial courts allowing evidence be entered without proof beyond a reasonable
doubt, thus, reducing the state's obligation and burden of proof to prove its case
against the petitioner, knowing that a person cannot act either intentionally and
knowingly, but not at the same time act recklessly; after viewing all of the evidence
without the prism of "in the light most favorable to the prosecution," it is con
trary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
[CLEWIS vs. STATE, 922 S.W.2d 126, 132-33 (Tex.Crim.App.1996)].
ISSUE #3: DID JUSTICE AL SCOGGINS, DECISION FOR THE TENTH COURT OF APPEALS
OF TEXAS, VIOLATE "WELL ESTABLISHED FEDERAL LAW, AS ESTABLISHED BY
THE U.S. SUPREME COURT, WHEN THE DECISION WAS 'CONTRARY TO, OR AN
UNREASONABLE APPLICATION OF SUPREME COURT PRECEDENT" WHEN "AFFIR
MING THE TRIAL COURTS DENYING PETITIONER'S MOTION FOR MISTRIAL?"
A staTE court decision is considered "contrary to — clearly established federal
law" if it "diametrically different, opposite in character or nature or muturally
opposed." [WILLIAMS vs. TAYLOR, 529 U.S. 362, 405, 120 S. Ct. 1495, 146 L.ed.2d
389 (2000)]. To be found on "unreasonable application of...clearly established
federal law," the state-court decision must be "objectively unreasonable" and
not simply erroneous or incorrect." Id., at 409-11, 120 S. Ct. 1495. The Tenth
Court of Appeals of Texas based it's decision on denying relief to Petitioner
upon the following reason(s): (a) "uncertainty after reviewing the evidence,
whether the examination by the state of it's witness' testimony in reference to
witness being shot by her mom's boyfriend, was 'inflammatory' as to be incurable
by the courts jury instruction to disregard. [DEFENDANTS FIRST MOTION FOR MISTRIAL]}
(b) in regards to the defenses [SECOND MOTION FOR MISTRIAL], the appellate court
"presumed" that a jury followed the court's instruction to disregard testimony
that was absent of some proof in the record as is the case in this issue #three;
(4)
where the state's star witness, and an alleged victim in this case, had testified
that he was in fear for his family and himself's safety because of his playing a
dual role as victim and informant for the state, where the state failed to present
any facts, witnesses, or evidence, and further failed to notify the defense of its
sealing the witnesses (informants) testimony so that the defense could make alter
native preparations for a defense against the denial and/or limitations of cross-
examination of this witness; again, the appellate court was without certainty as
to the trial court abusing its discretionary powers in denying a mistrial; and (3)
during the trial, the prosecutor during closing arguments, not once, but twice,
stated that "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 (petitioner) 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." Again, the appellate court denied relief, stating that the court did not
believe, and did not say that they were certain, but, stated that "we do not be
lieve," that the prosecutor's statement was so inflammatory as to undermine the
efficacy of the trial court's instruction to disregard.
In evaluating whether the declaration of a mistrial was warranted in the instant
case, the Court of Appeals, as well as the trial court failed to apply inflexible
standards, due to the infinite variety of circumstances in which a mistrial arose
and should have been granted. Rather, the Court of Appeals, as well as the trial
court adopted an approach which grants great deference to the trial court's dis
cretion in this area, in recognition of the fact that the trial judge is in the
best position to determine whether the situation in his courtroom warrants the
declaration of a mistrial. The jury in this case was admonished as to the charges
placed against the petitioner at the beginning of the trial during the reading of
the indictment. During the closing argument, and after the state presented all of
its evidence and witnesses, the prosecution alleged yet another charge in which
was not placed in the indictment, and nor was it put before the jury to hear and
evaluate evidence of such charge of murder of Ms. Pinkie Hardy. Yet, the jurors
each heard and considered the bad character of the Houstonian who comes into the
nieghborhood and commits such heineous crimes as selling drugs then shooting the
nieghbors. The state created a great and substantial harm and prejudice to any
defense and jury instruction of curing such closing arguments of a crime in which
petitioner was not charged or on trial for. The state created a "false impression"
upon the fact finders ability to weigh the actual evidence against that of the
"false impression" of murder raised and argued by the state in its closing argument.
(5)
And because of the "false impression" of an non-existant extraneous offense of
murder, the fact finders were coupled with such erroneous and false facts which
had no bearing upon the case in chief, and was presented by two of the state's
attorney's during closing arguments to support each others arguments of petitioners
guilt for the purpose of nothing more than to cause harm and prejudice toward
the defendant and his case in defense.
Because of such unlawful conduct by the state, petitioner was denied his right
to a "fair and impartial jury trial," thus, violating his "due process and equal
protection of the laws." And because of petitioner's raising and presenting a
constitutional error, the standard of review is, "(a) If the appellate record in
a criminal case reveals constitutional error that is subject to a harmless error
review, the court of appeals must reverse a judgment of conviction or punishment
unless the court determines beyond a reasonable doubt that the error did not con
tribute to the conviction or punishment." [Tex.R.App.Pro., Rule 44.2(a)]. Here,
the court of appeals continually stated that "we cannot say" (with certainty/in
the first motion for mistrial); "we cannot say," (with certainty/in the second
motion for mistrial); and "we conclude that the trial court did not abuse its
discertion — in the third denial for motion for mistrial. "It has long been the
law of this State that the law provides for, and presumes, that the accused person
will receive a fair trial, and a fair trial cannot be had if it is not free from
improper jury argument." [CORTEZ vs. STATE, 683 S.W.2d 419, 420 (Tex.Crim.App.1984)
citing RICHARDSON vs. STATE, 257 S.W.2d 308 (Tex.Cr.App.1953)]. It is apparent
through the appellate records, and the appellate judges, that they "cannot say"
beyond a reasonable doubt that the petitioner's case was constitutional and that
the trial judge acted within the scope of his discretionary powers when denying
petitioner's motions for mistrial.
ISSUE #4: WAS PETITIONER'S SIXTH AMENDMENT RIGHT VIOLATED WHEN THE TRIAL
COURT RESTRICTED "CROSS-EXAMINATION" OF THE COMPLAINING WITNESS
REGARDING HIS "PAST DISHONESTY AND BEING A LONG TIME CONFIDENTIAL
INFORMANT," WHEN THE STATE ALLEGED THE SAFETY & HEALTH OF THE WIT
NESS, CREATING A "FALSE IMPRESSION" OF PETITIONER'S CHARACTER BE
FORE THE JURY WITHOUT PRESENTING EVIDENCE, WITNESSES OR ANY OTHER
SUPPORTING FACTS TO SUBSTANTIATE THE NEED TO PLACE SUCH LIMITATIONS
ON THE DEFENSES•CROSS-EXAMINATION OF THE STATES STAR WITNESS?
"In all criminal prosecutions the accused shall — be confronted by the witnesses
against him and shall have compulsory process for obtaining witnesses in his favor."
[TEXAS CONSTITUTION, article I, §10].
(6)
"In all criminal prosecutions the accused shall...be confronted with the wit
nesses against him, and shall have compulsory process for obtaining witnesses in
his favor." [Texas Code of Criminal Procedure, article 1.05].
"In all criminal prosecutions, the accused shall enjoy the right — to be in
formed of the nature and cause of the accusation; to be confronted with the wit
nesses against him; to have compulsory process for obtaining witnesses in his
favor." [United States Constitution, article V, amendment 6]. The Sixth Amendment
protects an accused's right to cross-examine a witness, but it does not prevent a
trial court from limiting cross-examinationon legitimate concerns such as harass
ment, prejudice, confusion of the issues, or to exclude evidence that is margin
ally relevant." [KESTERSON vs. TEXAS, 997 S.W.2d 290, 293 (Tex.App.-Dallas 1999,
no pet.)(citing DELAWARE vs. VAN ARSDALL, 475 U.S. 673, 679 (1986)].
The primary function of the "Confrontation Clause" is to protect the right of
cross-examination. [DOUGLAS vs. ALABAMA, 380 U.S. 415, 418, 85 S. Ct. 1074, 13
L. Ed. 2d 934 (1965)]; and, one of the functions of cross-examination is to allow
the jury to assess the credibility of the witness. MATTOX vs. U.S., 156 U.S. 237,
242-43, 15 S. Ct. 337, 39 L. Ed. 409 (1895)]. In the instant case, Mr. David Roberson,
who was the target of a falsification and obstruction of justice through.his bene
ficial plea bargain agreement, and as being an informant for the state in unre
lated cases against other persons, which resulted in the state dismissing criminal
charges against Roberson, and in exchange for his testimony against the petitioner.
However, after testifying for the state on direct, Roberson refused to answer any
defense questions on cross. And that his testimonial evidence was "so unduly pre
judicial that it rendered the trial fundamentally unfair," and deprived petitioner
of his right to due process through the cross-examination of the states witness.
In accordance to Supreme Court decisions in [U.S. vs. WONG, 431 U.S. 174, 178,
97 S. Ct. 1823, 52 L. Ed. 2d 231 (1977)("The Fifth Amendment privilege does not con
done perjury."); U.S. vs. APFELBAUM, 445 U.S. 115, 131, 100 S. Ct. 948, 63 L. Ed. 2d
250 (1980)(holding that "neither the federal use immunity statute nor the fifth
amendment precludes the use of immunized testimony at a subsequent prosecution
for making false statements"); see also U.S. vs. MANDUJANO, 425 U.S. 564, 576, 96
S. Ct. 1768, 48 L. Ed. 2d 212 (1976)("In this constitutional process of securing a
witness' testimony, perjury simply has no place whatsoever.")]. Petitioner in his
attempt to cross-examine the sstates star witness, Mr. Roberson, Roberson declared
that he refuses to testify because he was in "fear for his and his family's
safety." However, the state argued that the witness was threatened by the petitioner
(7)
when he had passed throughout the jail to various certain inmates, a copy of the
trial transcripts, which showed that he was an informant for the state. However,
during the defenses attempt at cross-examining this star witness, the state's
attorney informed the court of this alleged incident and the witnesses fears,
and that the state had sealed all of the transcripts so that the defense could
not obtain them and use them against the star witness during cross-examination of
petitioner's trial of guilt and innocence. In fact, the trial counsel stated that
he was unaware of any of those facts and allegations as the state produced to pre
vent the defense from learning the facts and false testimonies of the star wit
ness. Mr. Roberson. In the state's failure to provide the defense with evidence
of discovery of the bargain struck between the state and the star witness, Mr.
Roberson, harm resulted from such denial of constitutional right that it "hindered,
prevented and denied" the defense proper notice of the states intent to prevent
cross-examination so that the defense could defend his case in other means or
argue the fact of the state's denial of cross-examination without the state ever
once producing any evidence or witnesses to the fact that the trail transcripts
were being passed throughout the jail, who had passed the transcripts, and who
received the transcripts and for what purpose the transcripts were being passed.
Because of the underhandedness of the state's sealing of.the record, the states
objection to the defenses cross-examination of its star witness for alleged fear
for personal and family security and safety; the defense was denied proper cross
of the witness for impeachment purposes which critically affected petitioner's
outcome of the trial, and further denied the fact finders of the right to properly
evaluate and determine for themselves the credibility of the witness.
It is the role of the court to provide a level playing field for the advocacy
of ideas, causes of action and defenses. The purpose of timely discovery is to
further that goal so that each side has a fair opportunity to present the case to
the jury. Because the state failed to provide the defense with pertinent evidence
of the witness1 testimony, and it's intended sealing of the transcripts, and the
denial of cross-examination of the witness, in a timely notice; the state clearly
ambushed the defense, surprised and created an unfair trial process in which the
defendant was clearly harmed, prejudiced, injured in his abilty to present a
defense against the state's actions, and his constitutional right to "due process"
was violated through the state's impeding upon the petitioner's right to cross-
examine the witness for credibility and character for impeachment purposes as is
allowed through the Texas Rules of Evidence.
(8)
The harm and prejudice resulted in "reversible error" because the petitioner's
defense was very limited through cross-examination when (1) impeachment would
have been critically affected; (2) which made it virtually impossible for the
petitioner to show the appellate court how effective his cross-examination or
rebuttal testimony would have been had he been given adequate opportunity for
discovery and cross-examination; and (3) when petitioner was denied his Sixth
Amendment right to a "fair trial," to "an impartial jury," to "confront witnesses
against him," and to "call witness in his favor" to rebute any evidence or wit
ness of the state, when the state alleged that the witness was placed in danger
of his safety because of his testimony during a pre-trial hearing was being
passed around throughout the jail to various certain inmates who would cause
harm and injury to the witness and/or his family, yet, the state failed to pro
duce any supporting evidence and/or witnesses that the trial transcripts were.,in
deed being passed throughout the jail, that the petitioner was the person re
sponsible, or called any witnesses, or named any jail inmate who had received
the transcripts and for what purpose to prove this allegation with the unlawful
intent to prevent the defense from cross-examining the state's star witness, Mr.
David Roberson. The state further failed in providing notice/discovery to the
defense of the state sealing .such said transcripts until during the trial and
the attempted cross-examination of the state's star witness Mr. Roberson, thus,
knowingly and intentionally depriving and violating petitioner's "Due Process and
Equal Protection of the Laws," through the violation and intent to deprive the
petitioner during trial the right to confront the witnesses against him.
In conducting a criminal trial, the court must protect the rights of the ac
cused under the Sixth Amendment, including the right "to be confronted with wit
nesses against him." [U.S. vs. DIAZ, 637 F.3d 592 (5th Cir.2011); U.S. vs. WILCOX,
631 F.3d 740 (5th Cir. 2011); BIGLEY vs. DREKTE, 402 F.3d 551 (5th Cir.2005)
("Cornerstone of American judicial system is right to fair and impartial process);
BROWN vs. STATE, 122 S.W.3d 794 (Tex.Crim.App.2003)]. The right to confrontation
includes the right of the accused to use cross-examination to present a defense
to the charges against him. [YOUNGER "Confrontation, 24 Washburn L.J. 1,,28 (1984);
U.S. vs. DAVIS, 393 F.3d 540 (5th Cir.2004); CORONADO vs. STATE, 351 S.W.3d 315
(Tex.Crim.App.2011)("The right to confrontation includes not only the right to
face-to-face confrontation, but also the right to meaningful and effective cross-
examination. "); see also HAMMER vs. STATE, 296 S.W.3d 555 (Tex.Crim.App.2009)].
In CHAMBERS, the U.S. Supreme Court's application of Mississippi's voucher rule
(9)
(a party calling a witness vouches for the credibility of that witness) prevented
defense counsel from impeaching his own witness by prior inconsistant statements.
At trial, the witness testified that the defendant had committed the crime, but
in earlier statements the witness had admitted to the crime. The Supreme Court
found that the exclusion of this evidence violated the Confrontation Clause."The
right to cross-examination is more than a desireable rule of trial procedure. It
is implicit in the constitutional right of confrontation, and helps assure the
accuracy of the truth determining process. [CHAMBERS vs. MISSISSIPPI, 410 U.S.
284, 295, 93 S. Ct. 1038, 1045, 35 L.Ed.2d.297 (1973)]. The right does not depend
upon whether the witness was put on the stand by the accused or the prosecution.
Id., at 298, 93 S.Ct., at 1047.
Petitioner in his appeal, claimed that his 6th Amendment rights to cross-ex
amine the state's star witness were violated in a number of situations that arose
during trial. These included the refusal of the trial court to allow inquiry into
a confidential informants/alleged victims continuing and future undercover police
work for the state in order to be free from his criminal activities, and the ex
change for immunity/reduced criminal charges/reduced sentencing, or whatever else
that may have occurred during this bargain making process of the witness beingan
informant for the prosecution, which deprived the defense of such information so
confrontational purposes of impeachment and presenting a viable defense against
the prosecution for the alleged fact of the witness "NOW" being in fear of his
safety and the state sealing such important trial transcripts, knowing that the
the states witness would be impeached and the state stood chance of losing the
case against the petitioner.
The state entered an alleged "conspiracy" that the witness' life was in danger
because of some alleged trial transcritps were being passed throughout the jail
to certain various jail inmates, however, the prosecution failed to present any
supporting evidence, any witnesses to testify to this alleged conspiracy against
the star witness/informant, nor did the state show "good cause" for denying the
defense his right to cross-examination and the sealing of the trial transcript,
which jeopardized petitioners defense against the charges against him and the
testimony of the states star witness; and the right to utilize state procedures
set forth in the Texas Code of Criminal Procedures, the Texas Rules of Appel
late Procedures, Texas Rules of Evidence, The United States Constitution's 6th
Amendment right to "Confrontation," and the Texas Constitution's right to Con
frontation of the witnesses against the petitioner in a fair and impartial trial
tribune.
(10)
In doing so, the State/prosecution intentionally used "surprise/ambush tactics"
of (1) denying the defense with notification of sealed records for the alleged
safety of the witness; (2) that the defendant was under suspicion of passing the
alleged trial transcripts throughout the jail to certain jail inmates that would
result in harm and injury to the witness or his family; (3) presented inconsistent
and/or no evidence or testimony of the certain jail inmates whom received or who
had notice of the witness being an confidential informant for the proisecution in
several unrelated cases and for many years, and who had been the person who had
passed the transcripts throughout the jail; and (4) nor had the prosecution estab
lished "good cause" for failure to notify the defense of the sealing of the re
cords and the advice to the star witness to claim his fifth amendment right to not
testify as to the terms and facts of the plea agreement for either "no conviction
of charges pending agsint him, or a reduced sentenced of punishment for his
testimony," and why the prosecution had waited until trial and at the defenses
cross-examination of the witness before notifying the defense or the court.
Since petitioner is raising a constitutional error, the standard of review is,
"(a) If the appellate record in a criminal case reveals constitutional error that
is subject to a harmless error review, the court of appeals must reverse a judg
ment of conviction or punishment unless the court determines beyond a reasonable
doubt that the error did not contribute to the conviction or punishment." [Texas
Rules of Appellate Procedure, rule 44.02(a)]. In the prosecutions ambush and sur
prise tactic performance, the prosecution created a "false impression" before the
jurors which harmed and prejudiced petitioner's case, when, without presenting
any supporting evidence and/or producing any jail inmate witnesses to support the
allegation and false impression of the petitioner intentionally desiring to cause
serious bodily harm and injury to the witness for the purpose of preventing the
witness, Mr. David Roberson from testifying during petitioner's guilt and inno
cent stage of trial, by passing around the jail trial transcripts which showed
that the witness Mr. Roberson was an informant for the state and prosecution,
Thus, the prosecution was "vouching" for its witness, Mr. Roberson, in violation
of well established federal law as determined by the United States Supreme Court
in CHAMBERS vs. MISSISSIPPI, 410 U.S., at 295, 93 S.Ct., at 1045; creating a false
impression of the defendant without presenting or producing any evidence or wit
nesses proving the allegation that the defendant was the person responsible for
the passing of trial transcripts to various certain inmates in the jail, and
causing great harm and damage and prejudicing petitioner's right to a fair and
(11)
impartial jury trial, his right to defend his case and character as the state
had presented allegations against him and his character in general; his right to
cross-examine witness' against him; his right to defend against any charges/al
legations against him by the state; his right to present and have witnesses and
evidence in his favor, and especially against the conspiracy claims the state/
prosecution had made against the petitioner during trial to prevent him from
cross-examining the states star witness. If the state/prosecution is permitted
to cross-examine a defendant or a defense witness who creates a false impression,
the defendant should be permitted to cross-examine a state's witness who has
created a false impression. [SAGLIMBENI vs. STATE, 100 S.W.3d 429, 434 (Tex.App.-
San Antonio 2002, pet. ref'd)]. In the instant case, the ability to correct the '"
false impression in which the state/prosecution had entered into the trial and
before the jury for their consideration, and irregardless of any instruction which
could not be cured under the immediate circumstances, the defense was denied that
very exact remedy sought to correct this . constitutional error committed by both
the state and the trial judge in allowing it to proceed before the jurors, and
created great harm and prejudice which could not .possibly be cured by any jury
instruction to disregard. Although the trial court may reasonably limit cross-
examination of a witness, the trial court did not have the authority to deny the
defense complete denial of constiuttional rights, privileges and immunities. In
[VIRTS vs. STATE, 739 S.W.2d 25, 29-30 (Tex.Crim.App.1987)], the court found that
the cross-examination should have been allowed "because it might have aided the •
jury in deciding whether to believe" the witness. The harm in the instant limiting
to cross-examination, and allowing the state/prosecution to enter unproven facts
of some unconstitutional tactic the prosecution schemed up about the trial trans
cripts being passed around in the jail to cause injury to the safety of the
witness without providing evidence or witnesses to verify this alleged fact,
amopunts to a case of "he-said-she-said," where the questions disallowed on
cross-examination bear directly on the complaining witness' credibily, is plain.
Thus, depriving the jury of relevant information relating to whether they can
trust the complaining witness, or determine the alleged facts raised by the
prosecution that the defendant intended harm.and injury to the witness, denies .
the petitioner the most fundamental of rights. [U.S. Const., amend. 6 and 14;
SANSOM vs. STATE, 292 S.W.3d 112, 119 (Tex.App.-Houston [14th Dist] 2008,. pet.
ref'd)("The proper scope of cross-examination includes "all facts and circum
stances which, when tested by human experience, tend to show that a witness may
shade his testimony for the purpose of helping to establish one side of the
(12)
cause only."); quoting KOEHLER vs. STATE, 679 S.W.2d 6, 9 Tex.Crim.App.1984);
citing JACKSON vs. STATE, 482 S.W.2d 864, 868' '(Tex.Crim.App.1972)].
Thus, based upon the manifest impropriety of the prosecution's unconstitutional
and violative acts and conduct of mandatory'laws and statutes which create a right
to the petitioner to utilize state/federal procedures to seek relief from any
charge of criminal act against him, through his exercising and performing acts
under the U.S. Constitution, Amendments 1, 4, 5, 6, and 14, petitioner respect
fully requests that this Honorable Court and it's Honorable Justices to reverse
the trial court's judgment and remand the case for further proceedings pursuant
to the Texas Rules of Appellate Procedures.
ISSUE #5: WAS PETITIONER'S SECURED AND GUARANTEED DUE PROCESS RIGHTS PROTECTED
WHEN THE TRIAL COURT ALLOWED THE STATE TO PRESENT EXTRANEOUS OFFENSES
AND IRRELEVANT FACTS TO SHOW THAT PETITIONER WAS A CRIMINAL OR BAD
CHARACTER IN GENERAL?
In the petitioner's fifth issue for*review, through his;appellate counsel, he
raised the issue of the state charging him twice for the "same criminal activity,"
in which the state had to prove the same elements of the case with the same
evidence in order to convict. Furthermore, quoting "POLLARD vs. STATE, 255 S.W.3d
184, 189 (Tex.App.-San Antonio 2008), aff'd, 277 S.W.3d 25 (Tex.Crim.App.2009)
(if several crimes are intermixed, or connected, the evidence may be contextual
evidence, "same transaction" contextual evidence and "background" contextual
evidence.)]. Generally, definitions of the terms and elements of an offense are
essentially evidentiary and need not be alleged in the charging instrument.
[THOMAS vs. STATE, 621 S.W.2d 158, 161 (Tex.Crim.App.1981)]. However, if a statute
provides more than one way for the defendant to commit the act or omission, then
on timely request, the state must allege the manner and means it seeks to estab
lish. [FERGUSON vs. STATE, 622 S.W.2d 846, 851 '(Tex.Crim.App.1981)]. This exception
insures a defendant is put on notice as to what behavior he allegedly engaged in
so that he can properly prepare a defense to that allegation.
Before trial proceedings started, counsel for the defense made his objections
to any and all aggravated assault/possession of the firearm by a felony based upon
the state causing a "confusion" of the charges for the jury consideration in the
fact of allowing a "serious bodily injury evidence" to the finding of a deadly
weapon for the "Unlawful Possession of a Firearm" offense in which petitioner
was not on trial for. The State alleged in the indictment, Count One, that the
"defendant did then and there use or exhibit a deadly weapon, to-wit: a firearm,"
(13)
which in the manner of its use or intended use was capable of causing death or
serious bodily injury." When the State alleges in an indictment that the defen
dant committed the offense of "DEADLY CONDUCT," with a deadly weapon, and that
the deadly weapon used by the defendant was a firearm, as it did in this case,
it is required to prove use of a firearm beyond a reasonable doubt. IN Count Two
of the same indictment, the state alleged that the defendant: "during the com
mission 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 was capable
of causing death or serious bodily injury, by discharging said firearm...". The
second count of the indictment was overkill by the state, and solely placed for
a lesser burden of proof, and a guarantee of a conviction, when using the same
incident, same evidence, same witnesses, and same time periods to produce more
charges out of one single criminal episode as accorded by the CARVEN DOCTRINE
allows.
Furthermore, in the same indictment and under the second count, the State also
alleged evidence into the trial of petitioner being chased by- the police, proving
guilt of the alleged crimes alleged in the indictment, when no evidence was
provided proving the allegation. Such allegation was harmful and prejudicial to
the petitioner's case by inflaming and prejudicing the jurors mind with his
guilt by fleeing the crime scene. Thus, creating a false impression that the
defendant was a criminal in nature and character, causing confusion as to the
facts in which the jurors were allegedly to determine as true, credible and
trust worthy as to prove beyond a reasonable doubt that the accused/defendant
was actually guilty of the crime in which he was charged. Furthermore, the state/
prosecution failed to provide any supporting evidence that proved beyond a reason
able doubt that the defendant fled the scene because he was guilty of any crime
as alleged. In fact, it i's only natural that a person such as the petitioner in
this case to leave a place in which he had just gotten kicked out of his girl
friends/lovers bed because another lover/boy-friend had came knocking. Therefore,
the state failed in its obligation to prove that because petitioner left the al
leged crime scene, that he was guilty. Also, it has allready been established
that the petitioner had in his possession the alleged gun which allegedly was
used to shoot' the victims Ms. Hardy and Mr. Roberson, and alleged drug sales.
Because of the lack of and no evidence to support the second count of the indict
ment, and the violation of Petitioner's Due Process riqhts, this Court should
"reverse and remand this case back for further proceedings."
(14)
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully prays that this Court,
and it's Honorable Justices, thereby GRANTS Petitioner's MOTION FOR DISCRETIONARY
REVIEW, under each respective issue as raised and argued hereinabove, and ORDERS
that this Petition be remanded back to the lower courts for further proceedings
for "reversal of the trial courts judgment and punishment" based upon the con
stitutional errors raised'hereinabove, and all other relief that this Honorable
Court and it's Honorable Jusitces may deem just and fair in accordance to the
laws and constitutional rights, privileges and immunities.
Respectfully Submitted,
2uincy Biitler
c/o TDCJ-ID #1899541
Allred Unit, 2101 FM 369 N.
Iowa Park, Texas 76367
UNSWORN DECLARATION
I, Quincy Butler, TDCJ-ID #1899541, do hereby declare under the penalty of per
jury, and the laws of the State of Texas, that the foregoing instrument and the
facts stated herein, are true and correct to the best of my first hand personal
knowledge and belief, as I am the Petitioner in this case matter, and am qualified
to make such accurate and true statements hereinabove; pursuant to Title 28 U.S.C,
§1746.
Dated this l_5th day of February, 2015,
Qunicy Butler, Petitioner
(15)
CERTIFICATE OF SERVICE
This is to certify that a true and accurate copy of the above and forgoing
PETITIONER FOR DISCRETIONARY REVIEW has been mailed to the Clerk of the TEXAS
COURT OF CRIMINAL APPEALS, Mr. Abel Acosta, P.O. Box 12308, Capitol Station,
Austin, Texas 78711, on this 5th day of February, 2015.
NOTICE OF NON-COMPLIANCE WITH TEXAS RULES OF
APPELLATE PROCEDURES
Petitioner asserts that he is unable to provide the number of requested copies
as set forth under the rules of the Texas appellate procedures, because he is an
inmate incarcerated within the Texas Department of Criminal Justice-Institutions
Division, and has no access to a copying machine, and is not allowed by TDCJ
rules, and policies to use or operate one that belongs to the TDCJ agency for
purposes of complying with court orders, instructions or other means. Petitioner
respectfully requests that the Clerk and/or a member of the Clerk's office may
make the required copies and serve the necessary parties who has an interest to
this cause of action, and further prays that this "non-compliance" with the Texas
Rules of Appellate Procedures will not bar his attempt for relief from this Court,
and/or cause his PDR be dismissed because of non-compliance. Petitioner further
asserts that he is an indigent person, who does not receiye monetary benefits for
his labors, and nor does he have family or friends who support him with gifts of
monetary benefits.
(16)
IN THE
TENTH COURT OF APPEALS
No. 10-13-00430-CR
QUINCY DESHAN BUTLER,
Appellant
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.
2As 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
**l-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 **l-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 Page6
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, 154S.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, 3S.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 canbe 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; seealso 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.
A. Applicable Law
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
delayor 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).
B. Discussion
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?
[Roberson]: Yes.
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 evidencebecause 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 beingequal, 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 asbefore. 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 ofPinkie's injuries and appellant's attempts toevade 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
Butlerv. 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. Evtd.
401; see also Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001) ("The proffered
Butlerv. 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 hewas 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
Appellantknowing that Pink[ie] Hardy or David Roberson were inside the habitationis
insufficient."
A. Standard of Review
"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 definedby a hypothetically correct jury chargefor 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.
B. Discussion
Under section22.05(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
Butlerv. 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 ofoffenses rendered the evidence insufficient. See Tex. R. App. P. 38.1(i).
Inany event, based onour 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:
Butlerv. 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 jurytobe 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
Butlerv. 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, 364S.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
Butlerv. State Page27
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed January 8,2015
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