                                  NO. 07-08-0459-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                        PANEL B

                               SEPTEMBER 11, 2009
                         ______________________________

                             MITCHELL E. WACHHOLTZ,

                                                             Appellant

                                           v.

                               THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2007-416,930; HON. BRAD UNDERWOOD, PRESIDING
                      _______________________________

                                    Opinion
                        _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Mitchell E. Wachholtz (appellant) appeals his conviction for murder. Through four

issues, he contends that the trial court erred by 1) excluding evidence regarding the

presence of drugs in the vehicle from which the victim exited and gang affiliation and 2)

admitting evidence of his statement that he planned to rob banks and “go out in a blaze”

or something of that ilk. We affirm.
                                           Background

       The event began with appellant, a convicted felon, taking methamphetamine earlier

in the day before the shooting. While allegedly coming down from his high, he and Brady

Herzog drove to a local convenience store to buy gasoline around 1:30 a.m. Two young

Hispanics were inside and standing at the checkout line. Three African-Americans (Chase

Pendleton, Marcus Smith and Smith’s friend) were also present when appellant and

Herzog entered the store to pay for the gas, approached the cash register and assumed

a place behind the two Hispanics.

       Though Pendleton stood quietly by the store’s entrance, Smith was not of like

deportment. He admitted to being drunk and acting like a “jerk.” Moreover, he spoke out

loudly and repeatedly interjected the word “nigger” in his speech.1 So too did he proclaim

that there had better be no one waiting to check out when he walked up to the cashier.

Other testimony revealed that someone from the group other than Pendleton commented

aloud about how the two Hispanics were dressed and how they were attempting to appear

“white.” It was at this time Smith approached the cashier, bumped or “shouldered” either

appellant or Herzog, and cut to the front of the line. Witnessing this, appellant left the store

purportedly to avoid conflict, went to his van, realized Herzog was still in the store, decided

to return and retrieve Herzog, collected a .25 caliber handgun, and walked towards the

store’s entrance.

       Despite Smith’s antics, neither Herzog, the two Hispanic males nor the cashier

feared for their safety. The cashier knew Smith, and the others in line simply ignored him.


       1
         Apparently, Sm ith and Pendleton were African-Am erican.   Appellant and Herzog were Anglo-
Am erican.

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Furthermore, no one saw Smith or his friends carrying any type of weapon. And, though

he cut in front of the two Hispanics, Smith either offered to pay or paid for the items the

Hispanics intended to buy.

        Having finished their business, Pendleton, Smith, and the third member of the party

turned to leave the store. They walked out the door and encountered appellant, who

raised the handgun and began firing.2

        Pendleton was mortally wounded. Smith also was hit, but his wound was minor.

And as those left in the store dropped to the ground when the shots rang out, Smith and

his friend ran back through the establishment and left the scene.

        Pendleton lay on the ground dying as his brother exited a vehicle parked outside the

store and attempted to apprehend appellant. The effort was unsuccessful. And, as

appellant readied his vehicle to leave, Herzog returned, entered it and asked appellant

what he “was thinking” when he began shooting. Appellant replied by suggesting that the

three individuals whom he shot at may or should have “learned their lesson.” Later he was

overheard alluding to there being “one dead wabbit” after watching a news broadcast of

the shooting and Pendleton’s death.

        At trial, appellant claimed that he had acted in self-defense. In describing why he

did so, he mentioned that he “feared for his life” and could not “retreat” prior to shooting.

And though he professed concern over the incident, he nonetheless attended a concert in


        2
          Appellant testified that he was five feet from the door when he m et the three leaving. One of them
purportedly went to his right, one went left. Pendleton appeared before him and supposedly m ade som e
gesture. Its nature, however, went unexplained. This is so because appellant perform ed the gesture for the
jury; he did not verbally describe it. So, it was not m em orialized in the appellate record, and we have no way
of assessing its potential, if any, for instilling fear in others. That written trial transcripts norm ally capture
words as opposed to conduct is som ething that litigants should rem em ber at trial. Nevertheless, no other
witness m entioned seeing Pendleton’s gesture towards appellant as the group left.

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another town the next day. Given its verdict, the jury obviously did not believe appellant

acted in self-defense.

                         Issues One and Two - Excluded Evidence

       In his first two issues, appellant contends that the trial court erred in excluding

evidence about drugs being found in the car from which Pendleton’s brother alighted and

about his brother’s alleged gang affiliation. We overrule the issues.

       Standard of Review

       The standard of review when considering issues like that at bar is one of abused

discretion. Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). Implicit therein

is the truism that trial courts are free to exercise discretion when deciding whether to admit

or exclude evidence. Admittedly, that discretion is not unbridled for the decision must

comport with the law as applied to the circumstances before the court. Yet, circumstances

differ from case to case. And, laws are often drafted to address concepts as opposed to

specific situations. This is no less true when the law involved consists of rules of evidence.

So, the trial judge is regularly called upon to use his judicial acumen and experience in

deciding how and when a particular rule applies to a developing situation. And, that task

can be quite daunting since the result may depend upon how a jurist views or interprets

those unfolding circumstances.

       As illustrated by the rather common optical illusion of the beauty and the hag,

whether one perceives the beauty or the hag is influenced by the indicia upon which he




                                              4
focuses.3 For some reason certain viewers are initially drawn to the lines depicting the

beauty while others see those presenting the hag. Neither vision is inaccurate, however,

for both lay within the illusion. The same can be said of many controversies that arise

before a trial judge and the resolution of which lies in the exercise of his discretion. The

indicia a particular judge may focus upon may in fact lead to different, yet equally correct,

results. And, so long as the picture before them allows for either vision or result, neither

is wrong. That is the seed underlying the concept of abused discretion for the result need

only fall within the zone of reasonable debate given the indicia or circumstances before the

court and the manner in which the court perceives them. Walters v. State, 247 S.W.3d at

217 (holding that a trial court abuses its discretion when its decision falls outside the zone

of reasonable disagreement).        And, unless the result falls outside that zone of

disagreement, we cannot change it.

       Application of Standard

       As previously mentioned, appellant sought permission to disclose the drugs found

in the car and the significance of various tattoos on the body of Pendleton’s brother. That

evidence, according to appellant, would help illustrate the context of the shooting and help


3




                                              5
explain why he shot, i.e. why he allegedly felt threatened. Yet, we are cited to no evidence

of record suggesting that appellant knew who was in the car, knew that one of the

occupants bore tattoos signifying gang involvement, or that he even saw anyone wearing

tattoos indicative of some gang affiliation. Nor did our review of the record uncover such

evidence. Without such evidence and since one’s perception and interpretation of the

circumstances before him are at the heart of a self-defense claim, it is difficult to see any

nexus between the tattoos and the stimuli motivating appellant’s conduct. So, a jurist could

reasonably conclude that visual minutia that went unperceived by an actor, such as

appellant, has little relevance to why the actor did what he did. Because of that, we cannot

say that the decision to exclude allusion to the tattoos at bar fell outside the zone of

reasonable disagreement.

       Nor can we say that the trial court’s decision to exclude reference to the drugs

evinced an instance of abused discretion. While appellant or others may have perceived

some of those present as being “high,” Smith admitted to being drunk, boisterous, and

acting obnoxiously. More importantly, this acknowledgment corroborated the perception

of someone being “high,” which perception constituted an indicia allegedly influencing

appellant’s own conduct. That appellant thought the substance influencing the behavior

was a particular drug, that a particular drug would cause conduct different than that caused

by alcohol, and that he thought one’s propensity for violence could differ based upon the

particular substance ingested is nowhere mentioned by appellant. Nor are we cited to

evidence suggesting that Pendleton, the ultimate decedent, had ingested illegal

substances. So, under these circumstances, we cannot say that the decision to exclude

evidence of the particular substance influencing Smith’s behavior, or that of anyone else,

                                             6
was of import. At the very least, the matter was reasonably debatable, and because it was,

we cannot say that the decision of the trial court fell outside the zone of reasonable

disagreement.

                                 Issues Three and Four

      In issues three and four, appellant contends that the trial court abused its discretion

when admitting evidence of a statement made by appellant concerning his intent to rob

banks and go out in a blaze. We overrule these issues as well.

      At trial, the State argued that appellant had made statements to the effect that he

(appellant) was “going to rob a bunch of banks and put them [sic] in a bank account, and

he was going to go out blazing.” Appellant objected, believing the matter to be irrelevant

and inadmissible.    Nonetheless, the trial court admitted it as evidence of flight or

consciousness of guilt. No other objections were made at the time. Subsequently, Connie

Pemlot Smith, a friend of appellant’s, testified. The State asked her about any plans

appellant had after attending the concert in Amarillo. Appellant again complained and

secured a running objection to the testimony. Connie then testified that appellant told her

he was “going to rob a bunch of banks and put money in an account for Brady [Herzog].”

The State then asked her if she thought the statement showed his intent to leave town and

she thought that was what he meant.

      Evidence of flight may be admissible to show a consciousness of guilt. Bigby v.

State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994). Yet, whether the comment in

question was of that ilk is not something we need to address. Instead, we assume




                                             7
arguendo that appellant was right and conclude that the admission of the statement was

harmless.

       That appellant shot and killed Pendleton was uncontested. Thus, the principal issue

before the jury revolved around whether the killing could be justified. The record contains

a plethora of evidence illustrating that it was not. That evidence included appellant’s own

comments about a dead “wabbit” and teaching the victims a lesson, his attending a concert

after the shooting, and the testimony that no one else experiencing the events that

unfolded in the store feared for their safety prior to the shooting. Indeed, appellant’s own

passenger at the time of the shooting saw no threat even though he remained in the midst

of the situation after appellant left the store. So too did that individual express incredulity

at what appellant did and why he did it. To that we add the undisputed evidence that

appellant was not only capable of retreating but actually retreated unharmed before

deciding to return with a firearm. And, that appellant supposedly returned to help Herzog

carries little importance since the defense submitted to the jury was not that of defending

third parties but rather of defending himself. Also before the jury was appellant’s status as

a convicted felon illegally possessing a gun, appellant’s prior assault upon an ex-wife, his

tendency to abuse drugs, his having ingested methamphetamine before the shooting, his

potential association with that of a nationally known motorcycle gang, his continuing to

shoot after the purported aggressors fled, and his description of experiences garnered from

his prison life. That appellant used such legal buzzwords as “retreat” and “fear for my

safety” in describing the event and his emotions could have also been seen by the jury as

rehearsed and less than sincere.



                                              8
      In short, the trial was a clean one. And aside from the comment at issue, there was

so much more in the record that could, and undoubtedly did, legitimately negate the

premise that appellant acted out of self-defense. Given this, we cannot but hold that any

affect his braggadocio about robbing banks had on the jury was slight at best. Thus, the

last two issues provide no basis upon which to reverse the judgment.

      Having overruled each issue, we affirm the judgment of the trial court.



                                               Brian Quinn
                                               Chief Justice

Publish.




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