                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-12-00234-CR

THE STATE OF TEXAS,
                                                          Appellant
v.

QUINCY BUTLER,
                                                          Appellee



                        From the 272nd District Court
                             Brazos County, Texas
                       Trial Court No. 12-00472-CRF-272


                         MEMORANDUM OPINION

      The State appeals from the trial court’s order granting Quincy Butler’s motion to

suppress. We reverse and remand.

                                  Background Facts

      Butler was indicted on August 18, 2011, in Brazos County for two counts of

aggravated assault with a deadly weapon. One of the counts involved family violence.

The indictments were related to events that occurred on May 28, 2011. Butler also had

charges pending in Waller County for possession of a controlled substance, possession
of a firearm by a felon, and evading arrest that stemmed from the events on May 28.

        Butler’s attorney indicated to the State that Butler wished to testify at the August

2011, grand jury proceedings involving the charges for aggravated assault. The State

sent Butler an invitation through his attorney to appear at the grand jury proceedings.

The invitation letter contained “target warnings” taken from TEX. CODE CRIM. PRO ANN.

art. 20.17 (West 2005). Butler voluntarily appeared before the grand jury, and he was

informed that the grand jury was investigating the two charges of aggravated assault.

Butler was again given the target warnings orally and in writing, and he waived his

rights provided in the target warnings and testified before the grand jury about the

events that occurred on May 28, 2011.

        Butler was later indicted on January 26, 2012, in Brazos County for deadly

conduct discharging a firearm and possession of a firearm by a felon for the events that

occurred on May 28, 2011. The State elected to try the cases from the January 2012

indictment first. On April 5, 2012, Butler filed a motion to suppress his statements

made at the August 2011 grand jury proceedings.              After hearing evidence and

arguments concerning the motion, the trial court granted the motion to suppress. The

State appeals from the order granting the motion to suppress.

                                    Motion to Suppress

        The State argues in two issues that the trial court erred in granting Butler’s

motion to suppress.      In reviewing a trial court's ruling on a motion to suppress,

appellate courts must give great deference to the trial court's findings of historical facts

as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85 (Tex. Crim.

State v. Butler                                                                       Page 2
App. 1997). Because the trial court is the exclusive fact finder, the appellate court

reviews evidence adduced at the suppression hearing in the light most favorable to the

trial court's ruling. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We

also give deference to the trial court's rulings on mixed questions of law and fact when

those rulings turn on an evaluation of credibility and demeanor. Guzman v. State, supra.

Where such rulings do not turn on an evaluation of credibility and demeanor, we

review the trial court's actions de novo. Guzman v. State, supra; Davila v. State, 4 S.W.3d

844, 847-48 (Tex. App.—Eastland 1999, no pet'n). We review questions involving legal

principles and the application of law to established facts de novo. Kothe v. State, 152

S.W.3d 54, 63 (Tex. Crim. App. 2004).

        Butler testified at the grand jury proceedings that on May 27, 2011, he went to

Bryan, Texas to visit Pinkie Hardy. Butler and Hardy were in a relationship, and Butler

stayed with Hardy at her residence.       Butler testified that on May 28, 2011, David

Roberson came to Hardy’s residence and forced his way inside and that Roberson

shoved Hardy and choked her. Butler testified that he gathered his belongings to leave

the residence, and he grabbed a weapon in the room. When asked before the grand jury

if he knew who owned the weapon, Butler responded that he did not know. Butler

asked to speak to his attorney who was out in the hallway.

        When Butler returned after speaking with his attorney, he stated that he did not

know who owned the weapon, but that he brought the weapon with him from

Houston. Butler then said that he purchased the weapon off the street in Houston and

that he brought the gun with him for protection. Butler stated that he was leaving

State v. Butler                                                                      Page 3
Hardy’s residence to go get her father for assistance and someone shut the door behind

him. Butler stumbled coming down the stairs to the residence, and the gun discharged.

Butler heard a scream, the front door opened, and Roberson came to the door and said,

“You shot her.” Butler said that the shooting was an accident and that he panicked and

fled the scene.

        Butler was questioned about the charges pending in Waller County, and he

declined to answer those questions. Butler was also questioned about his previous

convictions, and he admitted to being a convicted felon. Butler acknowledged that as a

convicted felon he could not possess a firearm.

        In his motion to suppress statements he made to the grand jury, Butler argued

that the statements were given in violation of his rights under the Fifth, Sixth, and

Fourteenth Amendments of the United States Constitution, Article I Sections 10 and 19

of the Texas Constitution, and also several provisions of the Texas Code of Criminal

Procedure. In the findings of fact and conclusions of law, the trial court found that

Butler’s statements before the grand jury were given in violation of the United States

Constitution, the Texas Constitution, and the Texas Code of Criminal Procedure. The

court found that the statements were not freely, intelligently, and voluntarily given

because Butler did not receive effective assistance of counsel from his attorney at the

time of the grand jury proceedings.

        In the first issue, the State argues that the trial court erred in granting Butler’s

motion to suppress because the exclusionary rule does not apply to pretrial ineffective

assistance claims and because Butler did not receive ineffective assistance of counsel.

State v. Butler                                                                       Page 4
To prevail on a claim of ineffective assistance of counsel, an appellant must meet the

two-pronged test established by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and adopted by

Texas two years later in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).

Appellant must show that (1) counsel's representation fell below an objective standard

of reasonableness, and (2) the deficient performance prejudiced the defense. Strickland

v. Washington, 466 U.S. at 689, 104 S.Ct. 2052. Unless appellant can prove both prongs,

an appellate court must not find counsel's representation to be ineffective. Id. at 687,

104 S.Ct. 2052.

        In order to satisfy the first prong, appellant must prove, by a preponderance of

the evidence, that trial counsel's performance fell below an objective standard of

reasonableness under the prevailing professional norms. Lopez v. State, 343 S.W.3d 137,

142 (Tex. Crim. App. 2011). To prove prejudice, appellant must show that there is a

reasonable probability, or a probability sufficient to undermine confidence in the

outcome, that the result of the proceeding would have been different. Id.

        An appellate court must make a strong presumption that counsel's performance

fell within the wide range of reasonably professional assistance. Id. In order for an

appellate court to find that counsel was ineffective, counsel's deficiency must be

affirmatively demonstrated in the trial record; the court must not engage in

retrospective speculation. Id. "It is not sufficient that appellant show, with the benefit

of hindsight, that his counsel's actions or omissions during trial were merely of

questionable competence."     Lopez v. State, 343 S.W.2d at 142-3.    When such direct

State v. Butler                                                                     Page 5
evidence is not available, we will assume that counsel had a strategy if any reasonably

sound strategic motivation can be imagined. Lopez v. State, 343 S.W.2d at 143. In

making an assessment of effective assistance of counsel, an appellate court must review

the totality of the representation and the circumstances of each case without the benefit

of hindsight. Id.

        Butler’s attorney informed the State that Butler wished to appear before the

grand jury. The target warnings were given in writing to Butler’s attorney and orally to

Butler at the grand jury proceedings. The warnings included that Butler had the right

to refuse to answer any questions that might incriminate him. Butler waived his rights

and testified.

        Butler’s attorney testified at the hearing on the motion to suppress that he

discussed with the Butler the consequences of testifying before the grand jury that he

was in possession of a firearm. They further discussed that it would be hard to deny

Butler possessed a firearm because the police caught him with the weapon in Waller

County. The attorney told Butler that if he testified, he would “make the case for them

in Waller.”       Butler wanted to testify before the grand jury that the shooting that

occurred on May 28, 2011 was an accident. Butler believed that Hardy would also

appear before the grand jury and state that the shooting was an accident. Butler hoped

to get “no billed” on the aggravated assault charges and then deal with the remaining

charges.

        Defense counsel has the primary responsibility to inform the defendant of his

right to testify, including the fact that the ultimate decision belongs to the defendant.

State v. Butler                                                                    Page 6
See Johnson v. State, 169 S.W.3d 223, 235(Tex. Crim. App. 2005). After discussing the

benefits and consequences of testifying before the grand jury with his attorney, Butler

wanted to testify. Butler has not shown that trial counsel’s performance was deficient.

        Moreover, Butler has not shown that the result of the proceeding would have

been different but for counsel’s unprofessional errors. Butler was stopped by police,

and police found a firearm in the vehicle. Butler wrote a letter to Hardy’s father

admitting that he shot Hardy, but stating that is was an accident. The trial court

concluded that Butler received ineffective assistance of counsel; and, therefore, his

statements were not voluntarily and freely given. Butler did not receive ineffective

assistance of counsel, and the trial court abused its discretion in suppressing the grand

jury testimony. We sustain the State’s first issue on appeal.

                              Article 20.17 Target Warnings

        The State argues in its second issue that the trial court erred in granting Butler’s

motion to suppress on the ground that Butler was not given the proper target warnings

as required by TEX. CODE CRIM. PRO ANN. art. 20.17 (West 2005). Article 20.17 provides:

        (a) The grand jury, in propounding questions to the person accused or
        suspected, shall first state the offense with which he is suspected or
        accused, the county where the offense is said to have been committed and
        as nearly as may be, the time of commission of the offense, and shall direct
        the examination to the offense under investigation.

        (b) Prior to any questioning of an accused or suspected person who is
        subpoenaed to appear before the grand jury, the accused or suspected
        person shall be furnished a written copy of the warnings contained in
        Subsection (c) of this section and shall be given a reasonable opportunity
        to retain counsel or apply to the court for an appointed attorney and to
        consult with counsel prior to appearing before the grand jury.


State v. Butler                                                                        Page 7
        (c) If an accused or suspected person is subpoenaed to appear before a
        grand jury prior to any questions before the grand jury, the person
        accused or suspected shall be orally warned as follows:

                  (1) "Your testimony before this grand jury is under oath";

              (2) "Any material question that is answered falsely before this
        grand jury subjects you to being prosecuted for aggravated perjury";

               (3) "You have the right to refuse to make answers to any question,
        the answer to which would incriminate you in any manner";

              (4) "You have the right to have a lawyer present outside this
        chamber to advise you before making answers to questions you feel might
        incriminate you";

              (5) "Any testimony you give may be used against you at any
        subsequent proceeding";

               (6) "If you are unable to employ a lawyer, you have the right to
        have a lawyer appointed to advise you before making an answer to a
        question, the answer to which you feel might incriminate you."

The trial court found that Butler was never warned concerning statements about

another offense, the possession of a firearm by a felon, with which he was later indicted.

        Butler was given the required target warnings both orally and in writing. Butler

was informed that the nature of the investigation was aggravated assault with a deadly

weapon, and he was indicted at that time for those offenses. Butler was specifically

warned that his statements could be used against him in subsequent proceedings.

During his testimony, Butler admitted to another offense that was not under

investigation by the grand jury at that time. See Andino v. State, 645 S.W.2d 615 (Tex.

App.—Austin 1983, no pet.). A subsequent grand jury investigated the allegations of

unlawful possession of a firearm by a felon and indicted Butler for that offense. The


State v. Butler                                                                     Page 8
target warnings given to Butler at the time of his grand jury testimony for the

aggravated assault offenses complied with requirements of Article 20.17 See Andino v.

State, supra. The trial court abused its discretion in suppressing the statements. We

sustain the State’s second issue on appeal.

                                       Conclusion

        We reverse the trial court’s order and remand for further proceedings consistent

with this opinion.




                                                AL SCOGGINS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and remanded
Opinion delivered and filed May 2, 2013
Do not publish
[CR25]




State v. Butler                                                                   Page 9
