                                   NO. 07-09-00138-CR

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL A

                                      JUNE 7, 2010


                          DAVID RUFUS BUTLER, APPELLANT

                                            v.

                           THE STATE OF TEXAS, APPELLEE


                FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

                     NO. 20,302-A; HONORABLE HAL MINER, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION

       Appellant, David Rufus Butler, appeals his conviction for the offense of burglary

of a habitation1 and sentence of fifty years incarceration in the Institutional Division of

the Texas Department of Criminal Justice. We affirm.




________________________
       1
            See TEX. PENAL CODE ANN. § 30.02 (Vernon 2003).
        
                                      Background


      Around 8:00 p.m. on November 16, 2008, appellant was seen driving his vehicle

into the Nantucket Apartments at a high rate of speed. As appellant pulled the vehicle

into a parking space, he struck a steel pole supporting an upstairs balcony. Appellant

emerged from the vehicle and went to the door of one of the apartments. Appellant

threw open the screen door to the apartment, and began knocking on the door while

yelling obscenities at the occupant of the apartment, Cherice Olivares, and requesting

that he be admitted into the apartment.         Olivares did not invite appellant into the

apartment.   When Olivares refused to allow appellant into the apartment, appellant

began violently hitting and kicking the door and demanding that he be allowed to enter

the apartment.


      When appellant’s attempts to gain entry into the apartment were rebuffed,

appellant broke out the front window of the apartment and climbed into the apartment

through the window frame. Olivares began screaming, and two neighbors called 911.

After a brief period of time, appellant exited the apartment through the broken window,

got into his vehicle, and drove off at a high rate of speed. Soon after appellant left the

apartment, Olivares called 911 to report the incident. Olivares reported that she had

been assaulted.


      After appellant left the scene, one of the neighbors who had called 911, Jessica

Thompson, went to the apartment to check on Olivares. Because the apartment door

would not open, Thompson spoke to Olivares through the broken window.               When

Thompson spoke to Olivares, she noticed that Olivares had a black eye, red marks on

                                            2
her person, and kept placing her hand on the back of her head.              Olivares told

Thompson that her boyfriend, appellant, had entered the apartment and began hitting

her with a closed fist and tried to drag her through the window frame by her ponytail.


      Officer Trent Thomas of the Amarillo Police Department was dispatched to the

apartment. Thomas spoke with Olivares, who was crying and very emotional. Thomas

asked Olivares what happened, and Olivares told him that she had been assaulted

inside the apartment. Olivares told Thomas that “the suspect”2 crawled through the

broken window and struck her in the back of the head several times, knocked her to the

ground, and dragged her by her hair toward the front door. Thomas indicated that

Olivares had blood on her arm and hand, a laceration on her elbow, and a black eye.


      Subsequently, appellant was charged by indictment with the offense of burglary

of a habitation, enhanced by two prior felony convictions. Appellant pleaded not guilty,

and trial was commenced.      During trial, appellant attempted to elicit testimony that

Olivares had threatened to commit suicide on November 16, 2008, and that his actions

at the apartment were directed toward assisting Olivares.       To refute this defensive

theory and to provide context for the State’s theory of the case, the State offered

evidence of appellant’s alleged assault against Olivares on October 2, 2008. Appellant

objected to the admission of evidence of the October incident under Rules 404(b) and

403 of the Texas Rules of Evidence, but the trial court overruled the objections. At the


________________________
      2
            Nothing in the record recounting this conversation between Thomas and
Olivares indicates that Olivares ever specifically identified appellant as being the
assailant. All of Thomas’s testimony at trial referred to “the suspect.”

                                            3
close of evidence and during the charge conference, appellant requested the trial court

add a jury instruction on the defense of necessity, but the trial court sustained the

State’s objection to inclusion of this instruction. However, the trial court did include an

instruction limiting the jury’s consideration of the evidence of the October 2008 incident.

The case was submitted to the jury, who found appellant guilty of burglary of a

habitation.   Following presentation of evidence on punishment, the jury sentenced

appellant to fifty years incarceration.


       By three issues, appellant appeals. By his first issue, appellant contends that the

evidence was factually insufficient to support appellant’s conviction for burglary of a

habitation. By his second issue, appellant contends that the trial court erred in refusing

to include a necessity instruction in the jury charge.      By his third issue, appellant

contends that the trial court erred in admitting evidence of the October 2, 2008

extraneous offense. We will address appellant’s issues in reverse order.


                                   The Charged Offense


       Appellant was charged with the offense of burglary of a habitation. Burglary of a

habitation can be committed by multiple means, see TEX. PENAL CODE ANN. § 30.02(a);

however, as applicable to this case, the State was required to prove that appellant

entered the habitation of Olivares, without the effective consent of Olivares, with intent

to commit an assault. See id. at § 30.02(a)(1).




                                            4
                                 Extraneous Offense Evidence


        By his third issue, appellant contends that the trial court erred in admitting

evidence of an assault that appellant is alleged to have committed against Olivares on

October 2, 2008. When the State offered evidence of this alleged assault, appellant

objected that it was impermissible evidence of character conformity and that its

probative value was substantially outweighed by the danger of unfair prejudice. See

TEX. R. EVID. 403, 404(b).3 However, appellant’s issue on appeal is limited to his Rule

403 objection.4


Standard of Review


        As appellant=s issue relates to the trial court=s admission of evidence, we review

the decision under the abuse of discretion standard.           See Billodeau v. State, 277

S.W.3d 34, 39 (Tex.Crim.App. 2009). The test for abuse of discretion is whether the

trial court acted without reference to any guiding rules and principles. Montgomery v.

State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1991).            A reviewing court applying the

abuse of discretion standard should not reverse a trial judge=s decision whose ruling

was within the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 102

(Tex.Crim.App. 1996).

________________________
        3
             Further references to the Texas Rules of Evidence will be by reference to “Rule
___.”
        4
          While the State contends that appellant waived his objection to this evidence
by, later in the trial, stating that he had “no objection” to the admission of the complaint
that was filed relating to the October 2, 2008 incident, for purposes of this opinion, we
will assume, without deciding, that appellant did not waive his objection. 

                                                5
      Rule 403 provides that, “[a]lthough relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice, confusion

of the issues, or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence.” The use of the word “may” in Rule 403 reflects

an intent that the trial judge be given very substantial discretion in balancing probative

value and unfair prejudice and that this determination should not be reversed simply

because a reviewing court believes that it would have decided the matter otherwise.

Manning v. State, 114 S.W.3d 922, 926 (Tex.Crim.App. 2003) (citing Montgomery, 810

S.W.2d at 379).


      When evidence is objected to under Rule 403, the trial court must balance the

probativeness of the evidence with the danger of unfair prejudice, but start with a

presumption favoring probative value.       Feldman v. State, 71 S.W.3d 738, 754

(Tex.Crim.App. 2002).     In performing the required balancing, a trial court should

consider (1) the inherent probative force of the proffered item of evidence along with (2)

the proponent's need for that evidence against (3) any tendency of the evidence to

suggest decision on an improper basis, (4) any tendency of the evidence to confuse or

distract the jury from the main issues, (5) any tendency of the evidence to be given

undue weight by a jury that has not been equipped to evaluate the probative force of the

evidence, and (6) the likelihood that presentation of the evidence will consume an

inordinate amount of time or repeat evidence already admitted. Casey v. State, 215

S.W.3d 870, 880 (Tex.Crim.App. 2007).




                                            6
Analysis


       Appellant objected to the State’s offer of testimonial evidence regarding an

alleged assault that appellant committed against Olivares on October 2, 2008.

Appellant contends that the only purpose served by this evidence was to characterize

appellant as “an assaultive criminal in general” and that the State had no need to

present the evidence since the prior offense was not germane to the jury’s

understanding of the case. The State responds that the prior assault was relevant

evidence of appellant’s intent to assault Olivares in the apartment, an element of the

offense as charged, and was contextual evidence that was necessary to explain to the

jury why appellant and Olivares were having the confrontation.


       Evidence was presented that appellant sought admission into the apartment on

November 16, 2008, to attempt to persuade Olivares to ask the prosecutors to dismiss

the criminal complaint filed against him based on the October incident. Thus, evidence

that charges had been filed against appellant based on a prior incident between

appellant and Olivares was relevant to establish the context for the events of November

16. In this respect, the evidence of the prior incident clarified the jury’s understanding of

the events of November 16, rather than confusing or misleading the jury. Additionally,

that the events of November 16 were the result of the pending assault charges rebuts

appellant’s defensive theory that he broke into the apartment to prevent Olivares from

hurting herself. Evidence of extraneous bad acts or offenses allegedly committed by

the accused has been held admissible to rebut a defensive theory raised by the

accused. Wheeler v. State, 67 S.W.3d 879, 886 n.18 (Tex.Crim.App. 2002) (quoting

                                             7
Albrecht v. State, 486 S.W.2d 97, 101 (Tex.Crim.App. 1972)).            Further, when an

accused challenges an element of the offense requiring proof of intent, admission of

extraneous offense evidence can help prove intent if the required intent cannot be

inferred from the act itself or if the accused presents evidence to rebut the inference that

the required intent existed. Johnson v. State, 932 S.W.2d 296, 302 (Tex.App.--Austin

1996, pet. ref’d).   Thus, we conclude that the evidence of the prior assault was

probative evidence of appellant’s intent when he entered the apartment and that the

State had a significant need for this evidence to rebut appellant’s defensive theory that

he entered the apartment to help Olivares. Further, we note that the presentation of the

evidence regarding the October incident did not take a significant amount of time to

develop, was not the sort of evidence that would likely be given undue weight by the

jury, and did not suggest decision on an improper basis. Finally, the possibility that the

jury would use the evidence of an extraneous offense for an improper purpose was

greatly lessened by the trial court’s jury charge instruction regarding the limited

purposes for which the jury could consider the evidence of the October incident. See

Williams v. State, 937 S.W.2d 479, 490 (Tex.Crim.App. 1996) (jury is assumed to follow

an instruction as given).


       After considering the evidence of the October incident in light of the Casey

factors, we cannot say that the trial court abused its discretion in overruling appellant’s

Rule 403 objection. Consequently, we overrule appellant’s third issue.




                                             8
                                   Necessity Instruction


       By his second issue, appellant contends that the evidence established that

appellant broke the window and entered the apartment to prevent an immediate suicide

attempt by Olivares, and, as such, the trial court erred in denying appellant’s requested

jury instruction on the necessity justification. The State responds that appellant was not

entitled to a necessity instruction because he did not admit that he committed each

element of the charged offense and the evidence did not establish that appellant’s

actions were necessary to avoid imminent harm.


Standard of Review


       Review of a claim of charge error starts with a determination of whether the trial

court committed error. See Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App. 1998).

If error is found, then the reviewing court must determine whether sufficient harm

resulted from the error to require reversal. Id.


Analysis


       Necessity justifies criminal conduct if:


       (1) the actor reasonably believes the conduct is immediately necessary to
       avoid imminent harm;

       (2) the desirability and urgency of avoiding the harm clearly outweigh,
       according to ordinary standards of reasonableness, the harm sought to be
       prevented by the law proscribing the conduct; and

       (3) a legislative purpose to exclude the justification claimed for the conduct
       does not otherwise plainly appear.


                                              9
TEX. PENAL CODE ANN. § 9.22 (Vernon 2003). Conduct is defined as “an act or omission

and its accompanying mental state.”      TEX. PENAL CODE ANN. § 1.07(a)(10) (Vernon

Supp. 2009). To raise necessity as a defense, the defendant must admit he committed

the offense and then offer necessity as a justification. Young v. State, 991 S.W.2d 835,

839 (Tex.Crim.App. 1999). The admission of the offense is required because “one

cannot establish that an act is justified without first identifying, or admitting to the

commission of the act.” McGarity v. State, 5 S.W.3d 223, 227 (Tex.App.--San Antonio

1999, no pet.). The Texas Court of Criminal Appeals has recently clarified that the

confession and avoidance doctrine applies to the necessity defense and, therefore, a

defendant must admit to the conduct of the charged offense, both the act and culpable

mental state, to be entitled to a necessity instruction. Juarez v. State, No. PD-0666-09,

2010 Tex.Crim.App. LEXIS 179, at *1 (Tex.Crim.App. March 31, 2010).


      In the present case, appellant did not admit to committing the conduct for which

he was charged, burglary of a habitation. Appellant did not testify during the guilt-

innocence phase of trial. See Maldonado v. State, 902 S.W.2d 708, 712 (Tex.App.—El

Paso 1995, no pet.) (“Appellant did not testify during the guilt-innocence phase of trial.

His failure to do so or to otherwise admit his crimes prevents him from benefitting from

the defense of necessity.”). While appellant did not contest the evidence establishing

that he committed the act of entering into Olivares’s apartment, he did contest whether

he took this action with the requisite mental state of the charged offense, i.e., with the

intent to commit an assault. Because appellant’s defensive theory was predicated on a

denial that he possessed the culpable mental state required to prove that he committed

the offense of burglary of a habitation, appellant was not entitled to a necessity
                                           10
instruction. See Juarez, 2010 Tex.Crim.App. LEXIS 179, at *21. Since appellant was

not entitled to a necessity instruction, the trial court did not err in denying appellant’s

request for an instruction on the defense of necessity.


       The requirement that a defendant must admit to all elements of a charged

offense, including the culpable mental state, to be entitled to a defensive instruction

does not apply when the defensive issue, by its terms, negates the culpable mental

state. See id. at *7. While appellant’s defensive evidence regarding his belief that he

needed to break into Olivares’s apartment to protect Olivares was likely sufficient to

entitle him to a jury instruction on mistake of fact, see TEX. PENAL CODE ANN. § 8.02;

Granger v. State, 3 S.W.3d 36, 41 (Tex.Crim.App. 1999) (mistake of fact defense, by its

terms, negates the culpable mental state), he did not request such a jury instruction

from the trial court and does not present that argument on appeal. See TEX. R. APP. P.

33.1(a)(1).


       We overrule appellant’s second issue.


                                       Factual Sufficiency


       By his first issue, appellant contends that the evidence was factually insufficient

to support appellant’s conviction for burglary of a habitation.5 By this issue, appellant’s


________________________
       5
          Appellant presents one conclusory statement that might be interpreted as a
challenge to the legal sufficiency of the evidence. However, appellant’s issue is framed
solely as a challenge to the factual sufficiency of the evidence and his prayer requests
only that the judgment be reversed and remanded for new trial. See Clewis v. State,
922 S.W.2d 126, 133-34 (Tex.Crim.App. 1996) (remedy for legally insufficient evidence

                                            11
main arguments are that he had the effective consent of Olivares when he entered the

apartment and that, because Olivares testified that appellant did not assault her when

he entered the apartment, the evidence of his intent to commit an assault was too weak

to support his conviction for burglary of a habitation.


Standard of Review


       When an appellant challenges the factual sufficiency of the evidence supporting

his conviction, the reviewing court must determine whether, considering all the evidence

in a neutral light, the jury was rationally justified in finding the appellant guilty beyond a

reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006).

In performing a factual sufficiency review, we must give deference to the fact finder’s

determinations if supported by evidence and may not order a new trial simply because

we may disagree with the verdict. See id. at 417. As an appellate court, we are not

justified in ordering a new trial unless there is some objective basis in the record

demonstrating that the great weight and preponderance of the evidence contradicts the

jury’s verdict. See id. Additionally, an appellate opinion addressing factual sufficiency

must include a discussion of the most important evidence that appellant claims

undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).




_________________________

is acquittal, while remedy for factually insufficient evidence is remand for new trial).
Thus, we will limit our review of appellant’s issue to whether the evidence was factually
sufficient to support the conviction. 

                                             12
Analysis


       Appellant’s contention that he had consent to enter the apartment is premised on

Olivares’s testimony that she was not shocked when appellant arrived at her apartment

and that, at one point, Olivares attempted to open the front door to the apartment, but

was unable to do so. However, whether Olivares expected appellant’s arrival at the

apartment has no bearing on whether she consented to his entry into the apartment,

especially in light of Olivares’s testimony that she did not expressly consent to his

entering the apartment. Further, because Olivares was unable to open the front door,

her actions in no way implied that appellant had consent to enter the apartment.

Further, appellant’s actions in hitting and kicking the door to the apartment combined

with evidence that he repeatedly threatened to break into the apartment if Olivares did

not allow him to enter was sufficient to allow the jury to rationally conclude that appellant

did not have the effective consent of Olivares to enter the apartment when he broke the

window and entered the apartment.


       As to appellant’s intent to commit assault when entering the apartment, this was

the element of the offense that was most contested during the trial. While Olivares did

testify that appellant did not hurt her after breaking into the apartment, the jury heard

evidence that appellant was angry and demanding entry into the apartment, Olivares

called 911 immediately after the incident and reported that she had been assaulted,

Thompson observed red marks on Olivares soon after the incident, and Olivares told

Thompson and Thomas that she had been assaulted.               Additionally, the jury heard

evidence that appellant had previously assaulted Olivares, was angry with Olivares

                                             13
because she had not attempted to get charges in that case dismissed, and came to the

apartment with the intent to get Olivares to drop these charges. Finally, the totality of

the evidence strongly preponderates in favor of appellant’s being at the apartment in an

attempt to scare or force Olivares to pursue having the prior assault charges against

appellant dropped, rather than out of a genuine concern that Olivares was in immediate

danger. Giving the jury its due deference in resolving conflicts in the evidence and

resolving issues of credibility and demeanor, see Johnson v. State, 23 S.W.3d 1, 8-9

(Tex.Crim.App. 2000), we cannot say that the evidence was factually insufficient to

establish that appellant entered Olivares’s apartment with the intent to commit an

assault.


         As the only remaining elements of the offense for which appellant was charged,

appellant’s identity and whether appellant entered Olivares’s apartment, were not

disputed at trial or on appeal, we conclude that the evidence was factually sufficient to

sustain appellant’s conviction for burglary of a habitation.      As such, we overrule

appellant’s first issue.


                                        Conclusion


         Having overruled each of appellant’s issues, we affirm the judgment of the trial

court.


                                                       Mackey K. Hancock
                                                            Justice


Do not publish.

                                            14
