Opinion issued July 12, 2012.




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-11-00282-CR
                           ———————————
                 WILLIE DEWAYNE HUGHES, Appellant
                                       V.

                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 248th District Court
                          Harris County, Texas
                      Trial Court Case No. 1213391


                         MEMORANDUM OPINION

     A jury convicted Willie Dewayne Hughes of the felony offense of

aggravated assault against a public servant.1 Hughes pleaded true to two


1
     See TEX. PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2), (b)(2)(B) (West 2011).
enhancement paragraphs, and the trial court assessed punishment at forty-five

years’ confinement. Hughes challenges his conviction, arguing that the trial court

erred by (1) quashing his subpoena duces tecum and (2) instructing the jury that

voluntary intoxication is not a defense. We affirm.

                                   Background

      In April 2009, Hughes was exercising in and walking around a Houston-area

park where several families were gathered. After several people noticed Hughes

acting in a strange and unusual manner, they reported him as a suspicious person to

the Houston Police Department. Officer C. Onwuka was the first HPD officer to

arrive at the scene. Officer Onwuka observed Hughes walk towards the patrol

vehicle with “clenched fist[s].” Hughes had advanced to within fifteen to twenty

feet of Officer Onwuka’s patrol vehicle when Officer Onwuka stepped out of the

vehicle and gave Hughes an oral command to stop. Officer Onwuka informed

Hughes why police had been called to the park. Hughes responded with a few

“mumbled words,” turned, and walked away from Officer Onwuka.

      Officer Onwuka requested assistance from other HPD officers. Shortly

thereafter, Officer D. Pham arrived at the scene. Hughes then began walking faster

in the direction of a concession stand. Officers Onwuka and Pham approached the

concession stand. Both Officers Onwuka and Pham noted that Hughes appeared to

be intoxicated. Officer Onwuka gave an oral command for Hughes to get down on

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the ground. Hughes complied after some period of time by slowly lowering himself

to one knee and placing his hands toward his back. While Officer Pham remained

at the concession stand entrance, Officer Onwuka attempted to place handcuffs on

Hughes. Hughes stood up and punched Officer Onwuka.

      Officer Pham entered the concession stand to assist Officer Onwuka.

Although he was able to place handcuffs on Hughes’s right wrist, Officer Pham

was not successful in securing Hughes’s left wrist. Hughes “swung [Officer Pham]

around” and grabbed Officer Pham by his neck. Using a choke-hold, Hughes lifted

Officer Pham from the ground. As Officer Pham struggled to breathe, Hughes

grabbed a knife from the concession stand, pressed it against Officer Pham’s chest,

shouted obscenities, and threatened to kill Officer Pham. Officer Onwuka used his

taser gun to stun Hughes. When the taser barbs lodged in his chest, Hughes

released Officer Pham. Hughes then pulled the taser barbs from his chest, retrieved

the knife, and attempted to exit the concession stand. By this time, however, other

HPD officers had arrived at the scene. Collectively the officers were able to get

Hughes under control using handcuffs and leg restraints.

      A grand jury indicted Hughes for aggravated assault following the incident

at the park. The indictment alleged that Hughes “intentionally and knowingly

threaten[ed] with imminent bodily injury [D. Pham] . . . while [D. Pham] was

lawfully discharging an official duty, by using and exhibiting a deadly weapon,

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namely a knife, knowing that [D. Pham] was a public servant.” At trial, Hughes

presented an insanity defense, offering evidence of his mental illness,

incompetence, and psychosis. After three days of trial and the testimony of ten

witnesses, a jury convicted Hughes of aggravated assault. This appeal followed.

                               Pretrial Discovery

      Hughes filed a pretrial application for a subpoena duces tecum requesting

that the custodian of records for the HPD produce the following documents:

            All student materials used in or distributed to students and all
      lesson plans used in the following classes taught by the Houston
      Police Academy:

            1.     Mental Health Officer Training Course on: 8/11/1998,
                   11/15/2007, 1/9/2008, 2/26/2008, 4/15/2008, 8/12/2008,
                   11/20/2008

            2.     Recognizing/Handle Abnormal People Course on:
                   12/5/2009, 11/6/2009, 11/3/2009, 2/19/2010, 4/12/2010

            3.     Mental Health Impairment (General) Course on:
                   5/8/2008, 7/21/2008, 4/6/2009, 7/9/2009, 08/11/2009,
                   10/21/2009, 11/3/2009, 04/13/2010

            4.     Crisis Intervention Training Course on 9/7/2007.

      ...

             In this subpoena, material used in or distributed to students
      includes, but is not limited to, paper documents such as course
      outlines or texts, study materials, videotapes, slide shows such as
      Power Point and all other materials provided to or shown to students.




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On HPD’s motion arguing that Hughes’s discovery request was overbroad, vague,

and not supported by the requisite showings of materiality and relevance, the trial

court quashed the subpoena, noting by hand on its quashal order that the subpoena

was “broad.” In his first issue, Hughes argues that the trial court’s quashal order

constitutes error because evidence of Officers Onwuka’s and Pham’s training in

the handling of mentally ill persons was material and relevant to his defense.

According to Hughes, the exclusion of this evidence from the jury’s consideration

rises to the level of an unconstitutional deprivation of due process and his right to

present a defense.

I.    Standard of Review

      We review the trial court’s rulings on motions for pretrial discovery for an

abuse of discretion. See McBride v. State, 838 S.W.2d 248, 250 (Tex. Crim. App.

1992); Shpikula v. State, 68 S.W.3d 212, 222 (Tex. App.—Houston [1st Dist.]

2002, pet. ref’d). Likewise, decisions regarding pretrial discovery of evidence that

is not exculpatory, mitigating, or privileged are within the discretion of the trial

court. Kinnamon v. State, 791 S.W.2d 84, 91 (Tex. Crim. App. 1990), overruled on

other grounds, Cook v. State, 884 S.W.2d 485 (Tex. Crim. App. 1994).

II.   Subpoena Duces Tecum

      A defendant in a criminal case does not have a general right to discovery of

evidence in possession of the State, but he has been granted limited discovery by

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the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 39.14

(West Supp. 2011); Kinnamon, 791 S.W.2d at 91. Article 24.02 of the Code

authorizes the issuance of a subpoena duces tecum to direct a particular witness to

produce in court writings or other things in his possession. See TEX. CODE CRIM.

PROC. ANN. art. 24.02 (West 2011). Article 24.02, however, does not require the

“pretrial disclosure of any and all information that might be useful in contradicting

unfavorable testimony.” Welch v. State, No. 06-10-00020-CR, 2011 WL 1364970,

at *7 (Tex. App.—Texarkana Apr. 12, 2011, pet. ref’d) (mem. op., not designated

for publication) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 52−53, 107 S. Ct.

989 (1987), discussing a party’s Confrontation Clause rights). Rather, as our sister

court of appeals has described it, “a subpoena duces tecum is not to be used as a

discovery weapon, but as an aid to discovery based upon a showing of materiality

and relevance.” Cruz v. State, 838 S.W.2d 682, 686 (Tex. App.—Houston [14th

Dist.] 1992, writ ref’d).

      Here, Hughes’s application for a subpoena duces tecum requested

documentation of training occurring at the Houston Police Academy over the

course of a twelve year period, with dates ranging from more than ten years before

his assault on Officer Pham to nearly one year after.2 The subpoena did not tie the


2
      We note that, although Hughes filed two amended applications for subpoenas
      duces tecum, he did not narrow the scope of the discovery requested in either
      subpoena. It was not until the day trial commenced—five months after the trial
                                         6
information requested to any particular officer’s training or explain the materiality

and relevance of the items requested. In its motion to quash, HPD objected that,

“with the exception of Crisis Intervention Training, the class titles listed in

[Hughes’s] subpoena are not necessarily the titles of courses offered at the Houston

Police Academy,” and explained that, because “the list that [Hughes] set[] forth is

actually broad titles used by [the Texas Commission on Law Enforcement Officer

Standards and Education] to categorize courses attended by law enforcement

officers nationwide,” compliance with the subpoena would require HPD to

“reverse engineer [Hughes’s] subpoena to determine 1) the courses that correspond

with [Hughes’s] request and 2) whether the course was one offered by the Houston

Police Academy.” Hughes did not file a response to HPD’s motion, and as the trial

court noted by hand on in its order quashing the subpoena, his counsel did not

timely appear at the hearing on the motion to quash. On this record, the trial court

could reasonably conclude that the information requested by Hughes in the

subpoena was overbroad. We hold that the trial court’s quashal order does not

constitute error, and we overrule Hughes’s first issue.3



      court issued its quashal order—that Hughes made his offer of proof regarding the
      materiality and relevancy of the items requested in his subpoena. At the time he
      filed his offer of proof, Hughes did not narrow the scope of the subpoena or re-
      urge his request for production of the documents listed therein.
3
      In the statement of his first issue, Hughes also complains that the trial court erred
      by quashing “the proper inquiry of the training records of the testifying Houston
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                                      Jury Charge

      Over Hughes’s objection, the trial court included a voluntary-intoxication

instruction in its charge, which stated:

      Voluntary intoxication does not constitute a defense to the
      commission of a crime. “Intoxication” means [a] disturbance of
      mental or physical capacity resulting from the introduction of any
      substance into the body.

Hughes argues in his second issue that this instruction was not warranted because

“[t]his case was never about whether [his] intoxication vitiated his culpable mental

state. Instead, this case was about whether his severe limited intellectual

capabilities combined with his psychosis rendered him insane under the law at the

time of the offense.”




      Police Officers.” To the extent that this complaint regards the trial court’s refusal
      to permit cross-examination of HPD officers about their training in dealing with
      mentally ill persons during the guilt phase of trial, we also conclude that the trial
      court did not err. The record establishes that the trial court did not foreclose cross-
      examination on the officers’ training entirely; instead, the trial court merely
      delayed its presentation. At the time Hughes attempted to elicit testimony
      regarding the officers’ training, no evidence of his mental competency had been
      adduced. The trial court determined that until such time as there was evidence that
      Hughes was mentally ill, testimony about how HPD officers are trained to interact
      with mentally ill persons was irrelevant. The trial court, however, expressed its
      willingness to permit testimony on officer training after Hughes presented mental
      competency evidence, and the trial court ordered the State to secure the officers’
      availability to be recalled as witnesses. That Hughes failed to request that any
      officer be recalled to testify after Hughes’s expert offered an opinion regarding his
      mental illness and competency does not support the reversal of his conviction on
      appeal.

                                             8
I.    Standard of Review

      To determine whether the trial court’s charge contains reversible error, we

first decide whether error exists, and if error exists, we determine whether the error

harmed the defendant. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App.

2003); Jacobs v. State, 355 S.W.3d 99, 101 (Tex. App.—Houston [1st Dist.] 2011,

pet. dism’d). Hughes objected to the voluntary-intoxication instruction, and thus, if

the charge was erroneous, reversal is required if the error is calculated to injure his

rights, meaning that “there must be some harm” to Hughes from the error. Sakil v.

State, 287 S.W.3d 23, 25-26 (Tex. Crim. App. 2009) (quoting Almanza v. State,

686 S.W.2d 157, 161 (Tex. Crim. App. 1984) (op. on reh’g), superseded on other

grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787, 788 (Tex. Crim.

App. 1988)).

II.   Voluntary-Intoxication Instruction

      The trial court’s charge must fully instruct the jury on the law applicable to

the case and apply that law to the facts adduced at trial. Gray v. State, 152 S.W.3d

125, 127 (Tex. Crim. App. 2004); see TEX. CODE CRIM. PROC. ANN. art. 36.14

(West 2007). “The function of a jury charge is not ‘merely to avoid misleading or

confusing the jury,’ but ‘to lead and to prevent confusion.’” Sakil, 287 S.W.3d at

26 (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996)). A

voluntary-intoxication instruction operates to inform the jury that the elements of

                                          9
the offense, including the requisite mental state, are not affected by evidence of

intoxication, making the instruction “appropriate if there is evidence from any

source that might lead a jury to conclude that the defendant’s intoxication

somehow excused his actions.” Sakil, 287 S.W.3d at 26; see also TEX. PENAL

CODE ANN. § 8.04(a) (West 2011) (“Voluntary intoxication does not constitute a

defense to the commission of crime.”).

      More than one witness testified in this case about Hughes’s possible

intoxication. The police officers who responded to the suspicious-person call

testified that Hughes exhibited signs of intoxication. Officer Onwuka stated that,

when he first confronted Hughes, he suspected Hughes might be intoxicated

because his eyes were bloodshot, his speech appeared to be slurred, and he was not

following verbal commands. Officer Onwuka further testified that these

circumstances were “usually signs of chemical intox.” Officer Pham also expressed

his opinion that Hughes was intoxicated. According to Officer Pham, Hughes used

his hand to balance himself and had bloodshot eyes. Another officer who helped

place Hughes in the patrol vehicle after his arrest testified that Hughes was

“agitated,” “screaming,” and “shouting a lot of obscenities.” That officer observed

that Hughes’s “pupils were slightly bloodshot, dilated.” He explained that

Hughes’s removal of his shirt was another indication that he might have been

under the influence of drugs—particularly PCP, as “a lot of people on PCP will

                                         10
overheat.” Additionally, a thirteen-year-old boy who was at the park with his

family when Hughes assaulted Officer Pham, witnessed Hughes drink a beer. The

boy described Hughes as having “red eyes” and an appearance of being “drunk or

high.” Both the State and Hughes acknowledged the evidence of intoxication in

their opening and closing arguments. Hughes, however, urged the jury to disregard

the intoxication evidence and give weight instead to the evidence showing he was

insane at the time of the assault.

      That Hughes did not rely on the evidence of possible intoxication to excuse

his assault on Officer Pham does not control the trial court’s submission of a

voluntary-intoxication instruction. See Taylor v. State, 885 S.W.2d 154, 158 (Tex.

Crim. App. 1994) (rejecting argument that defendant must rely on intoxication in

effort to excuse her actions before voluntary-intoxication instruction is warranted).

Although the testimony of the lay witness and the various police officers does not

establish unequivocally that Hughes was intoxicated on the day of the assault, the

testimony is sufficient to make intoxication an issue in the case. Based on the

testimony presented, the trial court could reasonably conclude that a juror might

find that intoxication somehow excused Hughes’s actions. Thus, by instructing the

jury that voluntary intoxication does not constitute a defense to the offense

charged—an intentional and knowing assault on Officer Pham with a deadly

weapon while Officer Pham was discharging an official duty—the trial court used

                                         11
the charge to prevent confusion. See Sakil, 287 S.W.3d at 28. We conclude that

inclusion of the voluntary-intoxication instruction did not constitute error, and we

overrule Hughes’s second issue.

                                   Conclusion

      Having overruled both of Hughes’s issues on appeal, we affirm the trial

court’s judgment.




                                                   Harvey Brown
                                                   Justice

Panel consists of Justices Bland, Massengale, and Brown.

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




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