                           NUMBER 13-12-00608-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

BILLY DEAN BUTLER,                                                      Appellant,

                                         v.

THE STATE OF TEXAS,                                                       Appellee.


                  On appeal from the 156th District Court
                         of Bee County, Texas.


            MEMORANDUM OPINION ON REMAND
          Before Justices Benavides, Perkes, and Longoria
        Memorandum Opinion On Remand by Justice Benavides
      This case is before us on remand from the Texas Court of Criminal Appeals.   See

Butler v. State, No. 13-12-00608-CR, 2014 WL 1272232, at *6 (Tex. App.—Corpus Christi

Mar. 27, 2014), rev’d and remanded, Butler v. State, 459 S.W.3d 595, 606 (Tex. Crim.

App. 2015). The court of criminal appeals reversed this Court’s previous judgment and

remanded the case for us to determine whether the evidence of the text messages
admitted at trial were inadmissible under rules of evidence 403 and 404(b). We affirm.

                                 I.      ADMISSIBILITY OF EVIDENCE1

        By his sole issue on appeal, Butler asserts that the trial court abused its discretion

by admitting unauthenticated and irrelevant text messages into evidence.                    Because the

court of criminal appeals ruled that the trial court did not abuse its discretion in finding the

text messages authenticated, see id. at 605, we now address Butler’s argument regarding

the exhibit’s admissibility under Rules 403 and 404(b).              See TEX. R. EVID. 403, 404(b).

        A. Standard of Review and Applicable Law

        “The standard of review for a trial court's ruling under the Rules of Evidence is

abuse of discretion.” Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005) (citing

Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004)). If the ruling was correct

on any theory of law applicable to the case, in light of what was before the trial court at

the time the ruling was made, then we must uphold the judgment. Id. (internal citations

omitted). Extraneous-offense evidence is admissible under both Rules 404(b) and 403

if that evidence satisfies a two-prong test: whether the extraneous offense evidence is

relevant to a fact of consequence in the case apart from its tendency to prove conduct in

conformity with character; and whether the probative value of the evidence is not

substantially outweighed by unfair prejudice. Id. (internal citations omitted). Appellate

courts will uphold a trial court's ruling on the admissibility of evidence as long as the trial



        1  As this is a memorandum opinion on remand and the parties are familiar with the factual and
procedural histories of this case, we will not recite them here except as necessary to advise the parties of
the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.1. For a more detailed recitation
of the factual and procedural backgrounds of this case, see Butler v. State, 459 S.W.3d 595, 598–600 (Tex.
Crim. App. 2015).


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court's ruling was at least within the zone of reasonable disagreement. Id. (internal

citation and quotations omitted).

       B. Discussion

       Butler argues that the text messages admitted into evidence were inadmissible

because they (1) constitute an extraneous offense under rule of evidence 404(b), and (2)

the exhibit’s probative value was outweighed by its unfair prejudice and confusion of the

issues under rule of evidence 403. We disagree with both arguments.

       Evidence of a crime, wrong, or other act is not admissible to prove a person's

character in order to show that on a particular occasion the person acted in accordance

with the character. TEX. R. EVID. 404(b)(1). However, the evidence may be admissible

for another purpose, such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.             Id. R. 404(b)(2).

Additionally, a trial court may exclude evidence, even if evidence is relevant, if its

probative value is substantially outweighed by a danger of unfair prejudice or confusion

of the issues.   Id. R. 403.

       The text messages involved in this case deal with communication between Butler

and the complainant prior to trial. In these messages, Butler calls the complainant a

“snithin [sic] ass bitch” and threatens to kill her and her family for speaking to the police

related to the instant case.    Acts designed to reduce the likelihood of prosecution,

conviction, or incarceration for the offense on trial are admissible under Rule 404(b)

because the acts show a “consciousness of guilt.”      See Ransom v. State, 920 S.W.2d

288, 299 (Tex. Crim. App. 1994).    These acts include threats against witnesses and their

families.   Id. Threats or other attempts at coercion are hardly the actions of an innocent

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accused, and evidence of such is every bit as probative of guilt as would be flight by the

accused.   Peoples v. State, 874 S.W.2d 804, 809 (Tex. App.—Fort Worth 1994, pet.

ref’d). Therefore, we conclude that the trial court did not abuse its discretion in admitting

the text messages over Butler’s Rule 404(b) and Rule 403 objections because the

evidence showed Butler’s consciousness of guilt leading up to trial, and under the facts

of this case, such consciousness of guilt evidence outweighed any prejudicial impact or

confusion of issues. See Ransom, 920 S.W.2d at 299.         Butler’s sole issue is overruled.

                                    II.    CONCLUSION

       We affirm the trial court’s judgment.



                                                         GINA M. BENAVIDES,
                                                         Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
10th day of December, 2015.




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