                               IN THE
                       TENTH COURT OF APPEALS

                              No. 10-13-00430-CR

QUINCY DESHAN BUTLER,
                                                        Appellant
v.

THE STATE OF TEXAS,
                                                        Appellee



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


                        MEMORANDUM OPINION


      In five issues, appellant, Quincy Deshan Butler, challenges his conviction for

deadly conduct by discharging a firearm. See TEX. PENAL CODE ANN. § 22.05(b) (West

2011). We affirm.
                                          I.      BACKGROUND1

        This is the not the first time this criminal transaction has been before this Court.

See, e.g., Ex parte Butler, No. 10-13-00362-CR, 2014 Tex. App. LEXIS 5833 (Tex. App.—

Waco May 29, 2014, pet. ref’d) (mem. op., not designated for publication); State v. Butler,

No. 10-12-00234-CR, 2013 Tex. App. LEXIS 5541 (Tex. App.—Waco May 2, 2013, pet.

ref’d) (mem. op., not designated for publication). In the instant case, appellant was

charged by indictment with deadly conduct by discharging a firearm and unlawful

possession of a firearm by a felon.2 Included in the indictment were two enhancement

paragraphs referencing appellant’s prior felony convictions for unlawful possession of a

controlled substance. At the conclusion of the evidence, the jury found appellant guilty

of engaging in deadly conduct by discharging a firearm.                       Additionally, the jury

concluded that the enhancement paragraphs were true and subsequently sentenced

appellant to sixty-two years’ confinement in the Institutional Division of the Texas

Department of Criminal Justice. This appeal followed.

                    II.      APPELLANT’S MOTION TO QUASH THE INDICTMENT

        In his first issue, appellant contends that the trial court erred in denying his

motion to quash the indictment in this case.




        1 As this is a memorandum opinion and the parties are familiar with the facts, we only recite
those facts necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4.

        2 As explained later, there has not been a trial on the charge for unlawful possession of a firearm
by a felon. As such, appellant’s conviction for deadly conduct by discharging a firearm is the subject of
this appeal.

Butler v. State                                                                                     Page 2
A.      Applicable Law

        The sufficiency of an indictment is a question of law. State v. Moff, 154 S.W.3d

599, 601 (Tex. Crim. App. 2004). Therefore, we review de novo a trial court’s ruling on a

motion to quash an indictment. Id. An indictment is sufficient when it charges the

commission of the offense in ordinary and concise language in such a manner as to

enable a person of common understanding to know what is meant, and with that

degree of certainty that will give the defendant notice of the particular offense with

which he is charged. TEX. CODE CRIM. PROC. ANN. art. 21.11 (West 2009).

B.      Discussion

        Here, the indictment provides the following, in relevant part:

        QUINCY BUTLER hereinafter referred to as the Defendant, heretofore on
        or about May 28, 2011, did then and there knowingly discharge a firearm
        at or in the direction of individuals, namely, Pinkie Hardy and David
        Robertson [sic],

        And it is further presented in and to said Court that, during the
        commission of the aforesaid offense, the defendant did then and there use
        or exhibit a deadly weapon, to-wit: a firearm, which in the manner of its
        use or intended use was capable of causing death or serious bodily injury,

        PARAGRAPH TWO: and it is further presented in and to said Court, that
        the said QUINCY BUTLER, in the County of Brazos and State of Texas on
        or about the 28th day of May, 2011, did,

        Then and there knowingly discharge a firearm at or in the direction of a
        habitation, and the defendant was then and there reckless as to whether
        the habitation was occupied, to-wit: by discharging said firearm at a
        habitation knowing that Pinkie Hardy and David Robertson [sic] were
        inside of said habitation,

        And it is further presented in and to said Court that, during the
        commission of the aforesaid offense, the defendant did then and there use


Butler v. State                                                                      Page 3
        or exhibit a deadly weapon, to-wit: a firearm, which in the manner of its
        use or intended use was capable of causing death or serious bodily injury.

        COUNT TWO: and it is further presented in and to said Court, that the
        said QUINCY BUTLER, in the County of Brazos and State of Texas on or
        about the 28th day of May, 2011, did,

        then and there, having been convicted of the felony offense of Possession
        of Controlled Substance on the 7th day of February, 2008, in Cause No.
        44367 in the 240th District Court of Fort Bend County, Texas, intentionally
        or knowingly possess a firearm before the fifth anniversary of the
        defendant’s release from confinement following conviction of said felony,

        And it is further presented in and to said Court that, during the
        commission of the aforesaid offense, the defendant did then and there use
        or exhibit a deadly weapon, to-wit: a firearm, which in the manner of its
        use or intended use was capable of causing death or serious bodily injury,
        namely, by discharging said firearm at Pinkie Hardy and David Robertson
        [sic] or at a habitation in which the defendant knew Pinkie Hardy and
        David Robertson [sic] were located . . . .

        In his motion to quash, appellant argued that: (1) Count 2 of the indictment

improperly charges appellant with two different crimes—unlawful possession of

firearm by a felon and deadly conduct; (2) the deadly-conduct allegation fails to state a

culpable mental state; (3) the indictment improperly expanded the definition of deadly

weapon to include extraneous acts and offenses; and (4) the indictment improperly

charges appellant with the same offense—deadly conduct—in both Counts 1 and 2 of

the indictment, thereby violating his rights to due process and double jeopardy.

        1.        Count 2 of the Indictment

        With respect to Count 2 of the indictment, the record is clear that appellant has

not been tried on that count. As such, appellant’s complaints about Count 2 of the

indictment amount to an interlocutory appeal of the trial court’s denial of his motion to


Butler v. State                                                                       Page 4
quash. See, e.g., Chambliss v. State, No. 10-13-00002-CR, 2013 Tex. App. LEXIS 2060, at

**1-2 (Tex. App.—Waco Feb. 28, 2013, no pet.) (mem. op., not designated for

publication). We do not have jurisdiction of an interlocutory appeal of the denial of a

motion to quash an indictment. See Abbott v. State, 271 S.W.3d 694, 696-97 (Tex. Crim.

App. 2008) (noting that the standard for determining jurisdiction is not whether the

appeal is precluded by law, but whether an appeal is authorized by law); Everett v.

State, 91 S.W.3d 386, 386 (Tex. App.—Waco 2002, no pet.) (stating that the court has

jurisdiction over criminal appeals only when expressly granted by law); Wright v. State,

969 S.W.2d 588, 589 (Tex. App.—Dallas 1998, no pet.) (stating that appellate court may

consider appeals by criminal defendants only after conviction); see also Charboneau v.

State, No. 05-13-00203-CR, 2013 Tex. App. LEXIS 1793, at *2 (Tex. App.—Dallas Feb. 20,

2013, no pet.) (mem. op., not designated for publication) (“Orders denying pretrial

motions to suppress, quash a complaint, and dismiss are not appealable interlocutory

orders.”).        Therefore, we lack jurisdiction to address appellant’s first and fourth

contentions—both of which center on Count 2 of the indictment. See Abbott, 271 S.W.3d

at 696-97; Everett, 91 S.W.3d at 386; Wright, 969 S.W.2d at 589; see also Chambliss, 2013

Tex. App. LEXIS 2060, at **1-2; Charboneau, 2013 Tex. App. LEXIS 1793, at *2.

        2.         Culpable Mental States

        In his motion to quash, appellant also argues that the deadly-conduct allegation

contained in the indictment failed to state all of the elements of the offense of deadly

conduct by failing to state a culpable mental state. However, on appeal, appellant

asserts that the indictment alleged the wrong culpable mental state.            Specifically,

Butler v. State                                                                       Page 5
appellant contends that the “knowing” culpable mental state refers to the discharging of

a firearm, and the “reckless” culpable mental state pertains to appellant’s knowledge

that the trailer house was occupied.

        Based on our review of the record, appellant’s complaint on appeal pertaining to

the culpable mental states listed in the indictment do not comport with appellant’s

complaints made in his motion to quash. A complaint will not be preserved if the legal

basis of the complaint raised on appeal varies from the complaint made at trial. See TEX.

R. APP. P. 33.1; see also Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009).

Accordingly, because appellant’s contention does not comport with the argument made

at trial, this contention presents nothing for review. See TEX. R. APP. P. 33.1; see also

Lovill, 319 S.W.3d at 691-92.

        3.        The Deadly-Weapon Allegation

        In his final contention in this issue, appellant asserts that the trial court should

have granted his motion to quash because the State improperly added additional

elements to the deadly-weapon allegation in the indictment.             More specifically,

appellant alleges that since a firearm is a per se deadly weapon, the State was not

required to prove anything related to the manner of its use. However, as the Court of

Criminal Appeals has recently stated, mere possession of a firearm during the

commission of a felony is not sufficient to sustain a deadly-weapon finding. Plummer v.

State, 410 S.W.3d 855, 858-60 (Tex. Crim. App. 2013). Rather, the State must prove that:

(1) the object meets the statutory definition of a dangerous weapon; (2) the deadly

weapon was used or exhibited during the transaction from which the felony conviction

Butler v. State                                                                       Page 6
was obtained; and (3) that other people were put in actual danger. Drichas v. State, 175

S.W.3d 795, 798 (Tex. Crim. App. 2005) (en banc) (internal citations omitted). The

language contained in the indictment merely identified the elements necessary for the

State to prove the affirmative finding of a deadly weapon. See id. As such, we cannot

say that the trial court erred in denying appellant’s motion to quash on this ground. See

Moff, 154 S.W.3d at 601. And based on the foregoing, we overrule appellant’s first issue.

                          III.   APPELLANT’S MOTION FOR MISTRIAL

        In his third issue, appellant complains that the trial court abused its discretion by

denying his motion for mistrial on three different occasions during trial.

A.      Applicable Law

        We review the denial of a motion for mistrial under an abuse-of-discretion

standard. Archie v. State, 221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007). Under this

standard, we uphold the trial court’s ruling as long as the ruling is within the zone of

reasonable disagreement. Id. “‘A mistrial is a device used to halt trial proceedings

when error is so prejudicial that expenditure of further time and expense would be

wasteful and futile.’” Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting

Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). It is appropriate only for “a

narrow class of highly prejudicial and incurable errors.” Id.; see Hawkins v. State, 135

S.W.3d 72, 77 (Tex. Crim. App. 2004). Therefore, a trial court properly exercises its

discretion to declare a mistrial when, due to the error, “an impartial verdict cannot be

reached” or a conviction would have to be reversed on appeal due to “an obvious

procedural error.” Wood, 18 S.W.3d at 648; see Ladd, 3 S.W.3d at 567.

Butler v. State                                                                        Page 7
B.      Appellant’s First Motion for Mistrial

        First, appellant asserts that the trial court should have granted his motion for

mistrial because of Ebony Hardy’s reference to her mother being shot by a boyfriend.

The following exchange serves as the basis for appellant’s contention:

        [The State]:        When you saw her [Pinkie] out in the grass, what did
                            you think?

        [Hardy]:            I just thought about my mother.

        Q:                  And what happened to her?

        A:                  Her boyfriend also shot her in the head.

        [Defense counsel]: Objection, [Y]our Honor. We’re going to object to
                           anything about what happened to—

        THE COURT:          I sustain the objection.

        [Defense counsel]: We ask the jury be instructed to disregard.

        THE COURT:          Ladies and gentleman, disregard that last statement[,]
                            which had nothing to do with this case. Strike it from
                            your mind[,] and do not consider it for any purpose.

        [Defense counsel]: We would ask for a mistrial.

        THE COURT:          That’ll be denied.

        On appeal, appellant contends that this testimony was inflammatory, prejudicial,

and necessitated the granting of his motion for mistrial. We disagree. The prosecutor’s

question here was general and did not expressly implicate appellant in the shooting of

Pinkie, especially given that the evidence established that Pinkie was dating multiple

people at the time of the incident. Based on our review of the evidence, we cannot say

that the above exchange was so inflammatory as to be incurable by an instruction to

Butler v. State                                                                      Page 8
disregard. See Ladd, 3 S.W.3d at 567 (“The asking of an improper question will seldom

call for a mistrial, because, in most cases, any harm can be cured by an instruction to

disregard. A mistrial is required only when the improper question is clearly prejudicial

to the defendant and is of such character as to suggest the impossibility of withdrawing

the impression produced on the minds of the jurors.”); see also Gardner v. State, 730

S.W.2d 675, 696 (Tex. Crim. App. 1987) (“In the vast majority of cases in

which . . . testimony comes in . . . which has no relevance to any material issue in the

case and carries with it some definite potential for prejudice to the accused, this Court

has relied upon what amounts to an appellate presumption that an instruction to

disregard the evidence will be obeyed by the jury. In essence[,] this Court puts its faith

in the jury’s ability, upon instruction, consciously to recognize the potential for

prejudice, and then consciously to discount the prejudice, if any, in its deliberations.”).

Accordingly, we cannot say that the trial court abused its discretion by denying

appellant’s first motion for mistrial. See Ladd, 3 S.W.3d at 567; Gardner, 730 S.W.2d at

696; see also Archie, 221 S.W.3d at 699-700.

C.      Appellant’s Second Motion for Mistrial

        Next, appellant argues that the trial court abused its discretion by denying his

second motion for mistrial that pertained to testimony provided by David Roberson,

one of Pinkie’s boyfriends. At trial, Roberson, an individual with numerous stints in

prison, indicated that he feared for his family’s safety because of his trial testimony.

Apparently, Roberson’s fear stemmed from evidence presented at a hearing on

appellant’s motion to suppress.       At that hearing, the evidence demonstrated that

Butler v. State                                                                      Page 9
Roberson had been indicted for first-degree felony possession of a controlled substance

with intent to deliver; however, that charge was dismissed based on Roberson’s prior

work as a confidential informant for the Bryan Police Department. This evidence was

suppressed, and a transcript of the hearing was produced. A copy of this transcript

revealing Roberson’s status as a confidential informant was given to appellant in the jail

by appellant’s appellate counsel. The State alleged that appellant made a copy of the

transcript and distributed it throughout the jail before it was discovered by law

enforcement. At a hearing held outside the presence of the jury, the State asserted that

Roberson and his family were threatened as a result of appellant’s distribution of the

hearing transcript.

        Thereafter, the trial court determined that the transcript of Roberson’s testimony

at the hearing on appellant’s motion to suppress and the discussion of Roberson’s status

as a confidential informant should be sealed from appellant. As such, defense counsel

and counsel for the State were ordered not to provide appellant with copies of this

information.      Appellant’s counsel argued that he should be able to cross-examine

Roberson about the sealing of the transcript, arguing that the sealing provided him an

incentive to testify in favor of the State. In response, the trial court ruled that the

sealing of the transcript was admissible to impeach Roberson; however, the trial court

noted that the State could ask Roberson about the reason behind the sealing of the

transcript.

        On direct-examination, the State asked Roberson about his concerns about there

being in existence a written transcript, to which Roberson responded, “Right.” Defense

Butler v. State                                                                    Page 10
counsel objected, which the trial court overruled. Next, the State asked the following

questions:

        [The State]:        And did we—after you brought that up to us, did we
                            tell you we had asked the judge to enter an order to
                            seal that particular part of the transcript so that it
                            would exist for the defendant’s lawyers for appellate
                            purposes but it wouldn’t be available to other people?

        [Roberson]:         Yes.

        Q:                  And was that—is that because you feared for your
                            safety?

        A:                  Not so much as my family’s. I mean, I’m good.

        Defense counsel objected to this last question and requested that the trial court

issue an instruction to the jury to disregard. Defense counsel also moved for a mistrial.

In response, the trial court sustained defense counsel’s objection and issued an

instruction to the jury to disregard the question and answer pertaining to safety.

However, the trial court denied defense counsel’s motion for mistrial.

        Testimony that refers to or implies extraneous offenses can be rendered harmless

by an instruction to disregard by the trial court, unless the evidence was so clearly

calculated to inflame the minds of the jury or is of such damning character as to suggest

it would be impossible to remove the harmful impression from the jury’s mind. Kemp v.

State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992); see Harris v. State, 164 S.W.3d 775, 783

(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). Furthermore, we presume that a jury

follows a court’s instruction to disregard testimony, absent some proof from the record

that the jury did not or could not follow such an instruction. See Thrift v. State, 176


Butler v. State                                                                      Page 11
S.W.3d 221, 224 (Tex. Crim. App. 2005). Nothing in Roberson’s testimony expressly

implicated appellant or explained why Roberson feared for his safety and the safety of

his family.       Therefore, based on our review of the record, we cannot say that the

question and answer pertaining to safety was so inflammatory as to undermine the

efficacy of the trial court’s instruction to disregard. See Kemp, 846 S.W.2d at 308; Harris,

164 S.W.3d at 783; see also McGinnis v. State, No. 03-99-00824-CR, 2001 Tex. App. LEXIS

3171, at **10-12 (Tex. App.—Austin May 17, 2011, no pet.) (op. on reh’g) (not designated

for publication) (concluding that a detective’s statement that witnesses were reluctant to

testify for fear of retaliation was curable by an instruction to disregard, and thus, the

trial court did not abuse its discretion in refusing to grant a mistrial). Accordingly, we

cannot say that the trial court abused its discretion in denying appellant’s second

motion for mistrial. See Kemp, 846 S.W.2d at 308; Harris, 164 S.W.3d at 783; see also

Archie, 221 S.W.3d at 699-700.

D.      Appellant’s Third Motion for Mistrial

        And finally, appellant contends that the prosecutor’s argument during closing

argument warranted a mistrial. Specifically, appellant complains about the following

statements made by the prosecutor:

        If Pinkie Hardy had died, as the doctor said by all account she should
        have, and we’re standing here arguing to you today on a murder case.
        With the kind of criminal history that he [appellant] has, you have a drug
        dealer from Houston who comes into this community to sell poison and
        then commits a murder while he’s here.




Butler v. State                                                                      Page 12
Defense counsel objected and requested a jury instruction to disregard and a mistrial.

The trial court sustained counsel’s objection and instructed the jury to disregard the

“murder statement of counsel.”

        Assuming, without deciding, that the complained-of statement was improper,

based on our review of the record, we conclude that the trial court’s instruction to

disregard cured any error. See Kemp, 846 S.W.2d at 308; Harris, 164 S.W.3d at 783; see

also McGinnis, 2001 Tex. App. LEXIS 3171, at **10-12. Appellant does not adequately

explain, and we do not believe, that the prosecutor’s statement was so inflammatory as

to undermine the efficacy of the trial court’s instruction to disregard. See Kemp, 846

S.W.2d at 308; Harris, 164 S.W.3d at 783; see also McGinnis, 2001 Tex. App. LEXIS 3171, at

**10-12.    We therefore conclude that the trial court did not abuse its discretion in

denying appellant’s third motion for mistrial. See Kemp, 846 S.W.2d at 308; Harris, 164

S.W.3d at 783; see also Archie, 221 S.W.3d at 699-700. We overrule appellant’s third issue.

                  IV.   CROSS-EXAMINATION AND IMPEACHMENT OF ROBERSON

        In his fourth issue, appellant complains that the trial court erred in refusing to

allow him to cross-examine Roberson on the details of his work as a confidential

informant.

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

delay or waste of time.” Id.; see Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000);

see also Chambers v. State, 866 S.W.2d 9, 27 (Tex. Crim. App. 1993). Moreover, “the

Confrontation Clause guarantees an opportunity for effective cross-examination, not

cross-examination that is effective in whatever way, or to whatever extent, the defense

might wish.” Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294, 88 L. Ed. 15 (1985)



Butler v. State                                                                       Page 14
(emphasis in original); see Walker v. State, 300 S.W.3d 836, 844-45 (Tex. App.—Fort

Worth 2009, pet. ref’d).

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 evidence because it was irrelevant.

                  ....

        The fact that a witness stands accused of (for example) felony theft would
        not, if presented to the jury, make that witness seem any more prone to
        testifying favorably for the State than a similarly situated witness who
        stood accused only of some unspecified felony. Both hypothetical
        witnesses—the one accused of felony theft and the other accused of the
        unspecified felony—would stand in the same vulnerable relation to the
        State; other things being equal, they would be subject to the same risk and
        extent of punishment. In other words, had the jury been presented with
        the fact that Joseph’s felony charges were actually felony theft charges
        (and that Stefan’s were actually felony robbery charges), it would have
        had no incrementally greater capacity to evaluate his potential for bias—
        its perception of the witness’s vulnerable relationship with the state
        would be essentially the same as before. Thus, as in Carpenter, Appellant’s
        bill of exception, insofar as it pertains to the nature of the witnesses’
        charged offenses, does no more than establish the factual basis of the
        pending [State] charges.

                  ....

Butler v. State                                                                         Page 16
        But a trial court’s discretion does not simply terminate upon a showing
        that the proffered impeachment evidence and the allegation of bias are
        logically connected. Indeed, it is a basic tenet of the law of evidence that
        merely establishing the relevancy of proffered evidence does not
        necessarily guarantee its admissibility.

Johnson v. State, 433 S.W.3d 546, 553-54 (Tex. Crim. App. 2014) (internal citations &

quotations omitted).

        With regard to the wide latitude afforded trial judges in limiting cross-

examination, the Johnson Court further explained:

        This latitude is exceeded only when the trial court exercises its discretion
        to so drastically curtail the defendant’s cross-examination as to leave him
        unable to make the record from which to argue why [the witness] might
        have been biased or otherwise lacked that degree of impartiality expected
        of a witness at trial. This kind of trial-court error is most conspicuous, of
        course, when the trial court entirely forecloses the defense from
        exposing—prohibits all inquiry into—a prototypical form of bias. But it
        may also be subtler, such as when the only record-making permitted the
        defense is so circumscribed that a reasonable jury might have received a
        significantly different impression of [the witness’s] credibility had [the
        defendant’s] counsel been permitted to pursue his proposed line of cross-
        examination.

Id. at 555 (internal citations & quotations omitted).

        Here, appellant was allowed to elicit testimony that Roberson had previously

worked as a confidential informant.        Appellant was not entirely foreclosed from

exploring Roberson’s potential bias, nor was appellant’s defense “so circumscribed that

a reasonable jury might have received a significantly different impression of

[Roberson’s] credibility had [appellant’s] counsel been permitted to pursue his

proposed line of cross-examination.” Id. Therefore, based on our review of the record,

we cannot say that the trial court erred in limiting appellant’s cross-examination of

Butler v. State                                                                         Page 17
Roberson about the contents of the sealed transcript, especially considering the trial

court has wide latitude to limit cross-examination on the basis of a witness’s safety. See

Irby, 327 S.W.3d at 145; see also Johnson, 433 S.W.3d at 553-555; Carpenter v. State, 979

S.W.2d 633, 635 (Tex. Crim. App. 1998) (en banc) (concluding that the trial court did not

err in refusing to allow the defense to cross-examine a witness about pending charges

when the defense failed to demonstrate a causal connection between the witness’s

pending federal charges and his testimony in his state case). Accordingly, we overrule

appellant’s fourth issue.

             V.   EVIDENCE OF SERIOUS BODILY INJURY AND CAR-CHASE EVIDENCE

        In his fifth issue, appellant asserts that the trial court abused its discretion by

admitting evidence of Pinkie’s injuries and appellant’s attempts to evade police.

A.      Standard of Review

        We review a trial court’s admission of evidence for an abuse of discretion. Torres

v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). A trial court abuses its discretion if

it acts arbitrarily or unreasonably, without reference to any guiding rules or principles.

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). When considering a

trial court’s decision to admit or exclude evidence, we will not reverse the trial court’s

ruling unless it falls outside the “zone of reasonable disagreement.” Id. at 391; see

Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).

B.      Facts

        At trial, the State proffered testimony about the injuries Pinkie sustained and

appellant’s subsequent flight from authorities.      Specifically, witnesses testified that

Butler v. State                                                                     Page 18
appellant, Pinkie, and Roberson were involved in an argument and that appellant shot

Pinkie through a door when he left Pinkie’s trailer house. The evidence established that

the bullet went through Pinkie’s body, causing extensive injuries, and ultimately landed

on the couch in the residence. After the incident, appellant fled the scene and engaged

in a high-speed chase through multiple counties before finally being stopped by law

enforcement in Waller County.

C.      Evidence of Pinkie’s Injuries

        For several reasons, we cannot say that the trial court abused its discretion in

admitting evidence of Pinkie’s injuries. First, we emphasize that the State alleged in the

indictment that appellant used a firearm that, in the manner of its use or intended use,

was capable of causing death or serious bodily injury. Therefore, one of the elements

that the State had to prove was whether the victim, Pinkie, was in imminent danger of

serious bodily injury when appellant purportedly shot through the door.           Section

1.07(a)(46) defines “[s]erious bodily injury” as “bodily injury that creates a substantial

risk of death or that causes death, serious permanent disfigurement, or protracted loss

or impairment of the function of any bodily member or organ.” Id. § 1.07(a)(46) (West

Supp. 2014). The State proffered ballistics and crime-scene evidence demonstrating that

Pinkie suffered serious bodily injuries—from which she almost died—during the

commission of the offense. Because the complained-of evidence addressed an element

of the charged offense, we conclude that the evidence was relevant. See TEX. R. EVID.

401; see also Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001) (“The proffered




Butler v. State                                                                    Page 19
evidence is relevant if it has been shown to be material to a fact in issue and if it makes

that fact more probable than it would be without the evidence.”).

        Additionally, appellant argues that the probative value of the evidence of

Pinkie’s injuries was outweighed by the prejudicial effect.       In particular, appellant

complains that the State presented pictures of Pinkie’s injuries and scars, her

nightgown, the bloody interior of the car occupied by Pinkie, and bloody crime-scene

pictures. Although the evidence depicts gruesome and bloody details, they are no more

gruesome or bloody than the facts of the case. See Shuffield v. State, 189 S.W.3d 782, 787

(Tex. Crim. App. 2004) (stating that complained-of photographs only showed the

victim’s injuries and were no more gruesome than expected); see also Sosa v. State, 230

S.W.3d 192, 196 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (concluding that the

prejudice caused by photographs did not substantially outweigh their probative value

and noting that the photographs were no more gruesome than the facts of the offense).

Furthermore, the complained-of evidence provided a necessary visual component to,

and understanding of, witnesses’ testimony regarding what they observed regarding

the nature and extent of the victim’s serious bodily injuries. We therefore conclude that

the probative value of the evidence depicting Pinkie’s injuries was not substantially

outweighed by the alleged prejudice caused. See TEX. R. EVID. 403; see also Gigliobianco v.

State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006); Montgomery, 810 S.W.2d at 389

(noting that, when a trial court balances the probative value of the evidence against its

danger of unfair prejudice, a presumption exists that the evidence will be more

probative than prejudicial).

Butler v. State                                                                     Page 20
D.      Evidence of the Car Chase

        Next, appellant complains that the trial court erred in admitting evidence that he

fled the scene of the crime and participated in a car chase in Waller County, Texas. We

disagree.

        “Evidence of flight or escape is admissible as a circumstance from which an

inference of guilt may be drawn.” Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App.

1994) (citations omitted); see Wachholtz v. State, 296 S.W.3d 855, 859 (Tex. App.—

Amarillo 2009, pet. ref’d) (stating that an effort to escape evinces a consciousness of

guilt, which, in turn, is evidence of culpability). “To support the admission of evidence

of escape from custody or flight it must appear that the escape or flight have some legal

relevance to the offense under prosecution.”        Bigby, 892 S.W.2d at 883 (citations

omitted);

        Here, the evidence revealed that immediately after shooting and seriously

injuring Pinkie, appellant fled from the scene in Brazos County. Appellant’s flight

continued with a high-speed car chase in Waller County shortly thereafter.

Consequently, we conclude that the evidence demonstrated a relationship between the

offense and appellant’s flight; and as such, we hold that the evidence was admissible to

show appellant’s consciousness of guilt. See Bigby, 892 S.W.3d at 883; see also Wachholtz,

296 S.W.3d at 859; Burks v. State, 227 S.W.3d 138, 148 (Tex. App.—Houston [1st Dist.]

2006, pet. ref’d) (“Taking into consideration appellant’s concession that he was aware of

the police officer’s motive to arrest him, we hold that evidence of appellant’s flight on

seeing the officer wearing the jacket marked ‘POLICE’ was relevant and admissible to

Butler v. State                                                                    Page 21
show, without violating rule 404(b), that appellant was conscious of his guilt.”).

Therefore, based on the foregoing, we overrule appellant’s fifth issue.

                              VI.    EVIDENTIARY SUFFICIENCY

        In his second issue, appellant contends that the evidence supporting his

conviction is insufficient “because the felony offense of deadly conduct does not include

an offense where there is bodily injury to another person.” Appellant also argues that

the evidence is insufficient because the trial court failed to make the State elect between

manner and means alleged in separate paragraphs of the indictment, and because “[t]he

trailer door was closed, so the State’s proof of at or in the direction of individuals with

Appellant knowing that Pink[ie] Hardy or David Roberson were inside the habitation is

insufficient.”

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 defined by a hypothetically correct jury charge for the case. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four

things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability; and (4) adequately describes the particular offense for which the

defendant was tried. Id.

B.        Discussion

          Under section 22.05(b) of the Penal Code, a person commits the offense of deadly

conduct by discharge of a firearm “if he knowingly discharges a firearm at or in the

direction of: (1) one or more individuals; or (2) a habitation, building, or vehicle and is

reckless as to whether the habitation, building, or vehicle is occupied.” TEX. PENAL

CODE ANN. § 22.05(b).       Contrary to appellant’s assertion, section 22.05(b) does not

require the State to prove that the victims were not injured as an element of the offense.

See id. In fact, most of the cases relied upon by appellant involve a prior iteration of

section 22.05, which did not address the offense of deadly conduct by discharging a

Butler v. State                                                                      Page 23
firearm. See generally Bell v. State, 693 S.W.2d 434 (Tex. Crim. App. 1985); Gallegos v.

State, 548 S.W.2d 50 (Tex. Crim. App. 1977); Scott v. State, 861 S.W.2d 440 (Tex. App.—

Austin 1993, no pet.). In Benjamin v. State, the charged offense involved section 22.05(a),

which provides that a person commits the offense of deadly conduct if he recklessly

engages in conduct that places another in imminent danger of serious bodily injury. See

69 S.W.3d 705, 707-08 (Tex. App.—Waco 2002, no pet.); see also TEX. PENAL CODE ANN. §

22.05(a). Furthermore, in Benjamin, this Court stated that section 22.05(a) applies to

those acts that fall short of injuring another. 69 S.W.3d at 708. Nothing in the Benjamin

opinion states that the same is true for section 22.05(b). See id. As such, we are not

persuaded by appellant’s contention that the evidence is insufficient to support his

conviction “because the felony offense of deadly conduct does not include an offense

where there is bodily injury to another person.”

        Appellant also argues that the evidence supporting his conviction is insufficient

because the trial court did not require the State to elect between alternative manner and

means of committing deadly conduct. In particular, appellant contends that the failure

to elect resulted in a misjoinder of offenses that rendered the evidence insufficient.

However, appellant does not cite any relevant authority explaining how the purported

misjoinder of offenses rendered the evidence insufficient. See TEX. R. APP. P. 38.1(i).

        In any event, based on our reading of the jury charge, we cannot say that the trial

court erred in failing to require the State to elect between alternative methods of

committing the same offense. The jury charge provided as follows, in relevant part:



Butler v. State                                                                      Page 24
        Now, if you find from the evidence beyond a reasonable doubt that on or
        about May 28, 2011 in Brazos County, Texas, the defendant, QUINCY
        BULTER, did then and there knowingly discharge a firearm at or in the
        direction of one or more individuals; namely: Pinkie Hardy or David
        Roberson, or that the defendant did then and there knowingly discharge a
        firearm at or in the direction of a habitation, and the defendant was then
        and there reckless as to whether the habitation was occupied; to wit: by
        discharging said firearm at a habitation knowing that Pinkie Hardy or
        David Roberson were inside of said habitation, then you will find the
        defendant guilty of the offense of Deadly Conduct as charged in the
        indictment.

(Emphasis added).      As provided in section 22.05(b), the language above provided

alternative means for committing deadly conduct. The Court of Criminal Appeals has

held that the trial court does not commit error by failing to require the State to elect

between alternative methods of committing the same offense. See Huffman v. State, 267

S.W.3d 902, 909 (Tex. Crim. App. 2008); Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim.

App. 1991). Furthermore, the Kitchens Court stated that: “And although the indictment

may allege the differing methods of committing the offense in the conjunctive, it is

proper for the jury to be charged in the disjunctive.” 823 S.W.2d at 258. Such is the case

here. Therefore, based on the foregoing, we conclude that this contention lacks merit.

        And finally, appellant asserts that “[t]he trailer door was closed, so the State’s

proof of at or in the direction of individuals with Appellant knowing that Pink[ie]

Hardy or David Roberson were inside the habitation is insufficient.” We disagree that

the fact that the trailer door was closed somehow renders the evidence insufficient.

        Donita Williams, Pinkie’s cousin, testified that she was present at Pinkie’s trailer

house on the night in question. Williams observed a white Chevrolet Malibu, which

was later identified as appellant’s car, parked nearby. Williams testified that the door

Butler v. State                                                                      Page 25
to the trailer was closed when she heard a gunshot.         Williams then heard Pinkie

screaming, “My baby, my baby,” and saw the shooter get in the Malibu “and just

casually drove off like nothing happened.”

        Pinkie noted that she and Roberson got into an argument at her trailer house the

night of the shooting. Appellant was also present at the trailer house. Initially, Pinkie

told Roberson to leave, but he refused to do so. Thereafter, appellant came out of a

bedroom holding a gun and began arguing with Roberson. At this point, Pinkie asked

appellant to leave. Appellant complied, and Pinkie shut the door to the trailer house.

Through the peep hole in the door, Pinkie watched appellant make his way towards the

white Malibu. Pinkie and Roberson continued their argument until Pinkie heard a

gunshot. Pinkie testified that she immediately felt a burning pain and exclaimed, “He

shot me in my pussy.”

        Roberson testified that, on the night in question, he saw a white vehicle parked

near Pinkie’s trailer house. Roberson also noted that he and Pinkie were arguing on the

night in question and that appellant eventually got involved in the argument. While

appellant and Roberson yelled insults at one another, Roberson saw a black semi-

automatic handgun in appellant’s hand. Appellant held the gun at his side. Roberson

recalled that Pinkie asked appellant to leave the trailer house and that appellant did so.

Once appellant left the trailer house, Roberson closed and locked the door. Then,

Roberson and Pinkie resumed their argument; however, shortly thereafter, Roberson

heard a gunshot and saw Pinkie fall to her knees with blood “shooting out” from her

leg. Roberson picked up Pinkie, kicked open the door, and searched for a vehicle to

Butler v. State                                                                    Page 26
transport Pinkie to the hospital. When Roberson opened the door, he saw appellant.

Roberson told appellant, “put her in the motherfucking car. You shot her.” Appellant

stood beside the white Malibu with his hands on the top of the car and with the gun in

one hand. Roberson then ran next door. At that time, Roberson recalled hearing tires

squeal and seeing appellant drive away.

        Viewing the evidence in the light most favorable to the verdict, we conclude that

a rational factfinder could have determined that: (1) the door to the trailer house was

closed at the time appellant fired the gun; (2) appellant, who had been involved in an

argument at the trailer house, knowingly discharged a firearm at or in the direction of

Pinkie and Roberson; and (3) appellant was reckless as to whether the habitation was

occupied when he fired the shot. See TEX. PENAL CODE ANN. § 22.05(b); see also Jackson,

443 U.S. at 319, 99 S. Ct. at 2789; Johnson v. State, 364 S.W.3d 292, 293-94 (Tex. Crim. App.

2012). Accordingly, we hold that the record contains sufficient evidence to support

appellant’s conviction for engaging in deadly conduct by discharging a firearm. See

TEX. PENAL CODE ANN. § 22.05(b); see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Johnson, 364 S.W.3d at 293-94. We overrule appellant’s second issue.

                                     VII.   CONCLUSION

        Having overruled all of appellant’s issues on appeal, we affirm the judgment of

the trial court.




                                                  AL SCOGGINS
                                                  Justice

Butler v. State                                                                       Page 27
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed January 8, 2015
Do not publish
[CRPM]




Butler v. State                               Page 28
