                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-13-00362-CR

                    EX PARTE QUINCY DESHAN BUTLER



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


                           MEMORANDUM OPINION

       In one issue, appellant, Quincy Deshan Butler, challenges the trial court’s denial

of his application for writ of habeas corpus. We affirm.

                                       I. BACKGROUND

       This is not the first time that appellant has been before this Court. See, e.g., State

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

2013, pet. ref’d) (mem. op., not designated for publication). Previously, we reversed the

trial court’s granting of appellant’s motion to suppress statements appellant made to a

Brazos County grand jury, which included admissions that he was a convicted felon in

possession of a firearm—an offense that is the basis for this appeal. See id. at **3-4.
        This appeal stems from incidents that transpired on May 28, 2011. On that date,

appellant allegedly shot through a closed door and hit his girlfriend, Pinkie Hardy,

while at Hardy’s residence in Bryan, Texas. According to a probable-cause statement

made by Travis Hines to Sergeant Blake Bell, after the shooting, appellant fled the

scene. When he left the scene, appellant was seen with a pistol in his possession.

Appellant fled in a vehicle to Waller County, Texas. After evading Waller County

Sheriff’s deputies, appellant crashed his vehicle on Highway 290 in Waller County. A

semi-automatic pistol and cocaine were discovered in appellant’s vehicle. Additionally,

a large amount of United States currency was found on appellant’s person. Appellant

was subsequently arrested.

            At the hearing on appellant’s application for writ of habeas corpus, Edna

Hernandez, a prosecutor with the Waller County District Attorney’s Office, testified

that she received complaints against appellant for unlawful possession of cocaine,

evading arrest, and unlawful possession of a firearm by a felon that were filed by the

Waller County Sheriff’s Office. Hernandez indicted appellant for unlawful possession

of cocaine and evading arrest.1         However, Hernandez did not indict appellant for

unlawful possession of a firearm by a felon because Brazos County Assistant District

Attorney Jason Goss expressed an intent to indict appellant for that offense in Brazos

County. Hernandez explained that she moved to dismiss the unlawful-possession-of-a-




        1The indictment included two enhancement paragraphs referencing appellant’s prior convictions
for unlawful possession of controlled substances.

Ex parte Butler                                                                                Page 2
firearm-by-a-felon complaint. Hernandez clarified that the complaint was “[a] straight

dismissal,” rather than dismissal as “a 12.45 case.”

        Hernandez later testified that appellant pleaded guilty to the two charged

offenses in Waller County. Hernandez denied speaking with appellant’s trial counsel

regarding the unlawful-possession-of-a-firearm-by-a-felon complaint. She also denied

explaining how what happened in Waller County would impact the charges filed in

Brazos County.     Specifically, Hernandez noted that “it was understood we had

borrowed him [appellant] from Brazos County to take care of our cases; and we

returned him right back to Brazos County.”             Hernandez recalled knowing that

appellant had been indicted for unlawful possession of a firearm by a felon in Brazos

County.

        Ultimately, the 506th Judicial District Court in Waller County accepted

appellant’s guilty pleas to the two charged offenses in Waller County, found appellant

guilty of the two offenses, determined that one of the enhancement paragraphs in the

indictments was true, and sentenced appellant to thirteen years’ confinement in the

Institutional Division of the Texas Department of Criminal Justice in both cases. The

imposed sentences were ordered to run concurrently. Additionally, the judgments

stated the following language: “dismiss unindicted Unlawful Possession Firearm.”

Hernandez explained that this language pertained to the Waller County complaint, not

the Brazos County indictment for that offense and that the dismissal was not a part of

the plea agreement.



Ex parte Butler                                                                  Page 3
        Prior to trial on the unlawful-possession-of-a-firearm-by-a-felon charge in Brazos

County, appellant filed an application for writ of habeas corpus, arguing that

prosecution of this offense “is barred by the Double Jeopardy Clauses contained in Art.

I, §14 of the Texas Constitution; the Fifth Amendment of the United States Constitution;

and Arts. 1.10, 1.11, and 28.13 of the Texas Code of Criminal Procedure; and their related

doctrine of collateral estoppel.” (Emphasis in original). More specifically, appellant

alleged that he “has been charged with the same offense arising from the exact same

facts and one case has been dismissed as a result of the judgments entered in Waller

County, Texas. This prevents litigation of the same offense based on the same set of

facts.” After a hearing, the trial court denied appellant’s habeas-corpus application and

certified appellant’s right of appeal. This appeal followed.

                                  II. STANDARD OF REVIEW

        An applicant for habeas-corpus relief must prove his claim by a preponderance

of the evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex parte

Scott, 190 S.W.3d 672, 673 (Tex. Crim. App. 2006) (per curiam). In reviewing the trial

court’s order denying habeas-corpus relief, we view the facts in the light most favorable

to the trial court’s ruling. See Kniatt, 206 S.W.3d at 664. We will uphold the trial court’s

ruling absent an abuse of discretion. See id. We afford almost total deference to the trial

court’s determination of the historical facts that the record supports.       See Ex parte

Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled on other

grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). We likewise defer to




Ex parte Butler                                                                       Page 4
the trial court’s application of the law to the facts, if the resolution of the ultimate

question turns on an evaluation of credibility and demeanor. See id.

                                               III. ANALYSIS

        In one issue on appeal, appellant contends that the trial court abused its

discretion in denying his habeas-corpus application because the dismissal of the

unindicted unlawful-possession-of-a-firearm-by-a-felon complaint in Waller County

constituted a section 12.45 dismissal, which barred any further prosecution for that

offense under the principles of double jeopardy and collateral estoppel. See TEX. PENAL

CODE ANN. § 12.45 (West 2011).2

        To preserve error, Texas Rule of Appellate Procedure 33.1(a) requires the

complaining party to make a specific objection or complaint and obtain a ruling thereon

before the trial court. See TEX. R. APP. P. 33.1(a); see also Wilson v. State, 71 S.W.3d 346,

349 (Tex. Crim. App. 2002). Texas courts have held that points of error on appeal must

correspond or comport with objections and arguments made at trial. Dixon v. State, 2

S.W.3d 263, 273 (Tex. Crim. App. 1999) (“[A]n objection stating one legal theory may

not be used to support a different legal theory on appeal.”); see Wright v. State, 154

S.W.3d 235, 241 (Tex. App.—Texarkana 2005, pet. ref’d). “Where a trial objection does




           2 Under section 12.45 of the Texas Penal Code, a defendant is permitted to admit guilt regarding

an unadjudicated offense and request the trial court to consider the offense when determining
punishment for an adjudicated offense. TEX. PENAL CODE ANN. § 12.45(a)-(b) (West 2011); see, e.g., Ex
parte Pharris, No. 14-11-00266-CR, 2012 Tex. App. LEXIS 2939, at *10 (Tex. App.—Houston [14th Dist.]
Apr. 17, 2012, pet. ref’d) (mem. op., not designated for publication). “If a court lawfully takes into
account an admitted offense, prosecution is barred for that offense.” TEX. PENAL CODE ANN. § 12.45(c);
see, e.g., Ex parte Pharris, 2012 Tex. App. LEXIS 2939, at *10.

Ex parte Butler                                                                                     Page 5
not comport with the issue raised on appeal, the appellant has preserved nothing for

review.” Wright, 154 S.W.3d at 241.

        As stated earlier, appellant argued in his habeas-corpus application that he could

not be prosecuted for unlawful possession of a firearm by a felon in Brazos County

because the charge was dismissed in Waller County. In support of this contention,

appellant cited “the Double Jeopardy Clauses contained in Art. 1, §14 of the Texas

Constitution; the Fifth Amendment of the United States Constitution; and Arts. 1.10, 1.11,

and 28.13 of the Texas Code of Criminal Procedure; and their related doctrine of collateral

estoppel.” (Emphasis in original). Nowhere in his application does appellant assert

that section 12.45 of the Texas Penal Code bars prosecution of this offense in Brazos

County. Moreover, at the hearing on his habeas-corpus application, appellant’s trial

counsel advocated a different legal theory than that articulated on appeal:

        It’s our argument that basically this—it’s our understanding that the State
        intends to go forward on the possession of a firearm by a felon, which is
        an indicted case here in Brazos County, Texas; and it’s our position that
        basically they are precluded from going forward either by issue
        preclusion or collateral estoppel or double jeopardy. And therefore, we
        would ask the Court to grant our writ to dismiss the case that is currently
        pending in front of Mr. Butler as it relates to possession of a firearm by a
        felon, which is in this Cause Number 12-00472-CRF-272.

At no time during the hearing did appellant assert that section 12.45 barred prosecution

of this offense in Brazos County. And though the prosecutor asked three questions of

Hernandez with regard to section 12.45, Hernandez denied that section 12.45 applied in

this case. Hernandez asserted that she dismissed the Waller-County complaint against

appellant pertaining to unlawful possession of a firearm by a felon as “[a] straight


Ex parte Butler                                                                        Page 6
dismissal.” Furthermore, appellant’s trial counsel did not question Hernandez with

regard to section 12.45.

        Accordingly, we cannot imply from the context of the arguments made in the

habeas-corpus application or at the hearing that appellant advanced an objection under

section 12.45 of the Texas Penal Code. See TEX. R. APP. P. 33.1(a); see also Lankston v.

State, 827 S.W.2d 907, 911 (Tex. Crim. App. 1992) (noting that, in determining whether a

complaint on appeal comports with a complaint made at trial, we look at the context of

the objection and the shared understanding of the parties at the time).3 Indeed, we do

not believe a generic double-jeopardy objection is specific enough to invoke section

12.45. See TEX. R. APP. P. 33.1(a); see also Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim.

App. 2012) (“The two main purposes of requiring a specific objection are to inform the

trial judge of the basis of the objection so that he has an opportunity to rule on it and to

allow opposing counsel to remedy the error.”); Pena v. State, 285 S.W.3d 459, 464 (Tex.

Crim. App. 2009) (noting that to preserve error, the objecting party must let the trial

judge know what he wants, why he thinks he is entitled to it, and to do so clearly

enough for the judge to understand him at a time when the judge is in the proper


        3 In Lankston v. State, the Court of Criminal Appeals specifically stated the following with regard
to the specificity of objections:

        As regards specificity, all a party has to do to avoid the forfeiture of a complaint on
        appeal is to let the trial judge know what he wants, why he thinks himself entitled to it,
        and to do so clearly enough for the judge to understand him at a time when the trial
        court is in a proper position to do something about it. Of course, when it seems from
        context that a party failed effectively to communicate his desire, then reviewing courts
        should not hesitate to hold that appellate complaints arising from the event have been
        lost.

827 S.W.2d 907, 909 (Tex. Crim. App. 1992).

Ex parte Butler                                                                                      Page 7
position to do something about it); Lankston, 827 S.W.2d at 909, 911. Consequently,

appellant’s appellate complaints do not comport with those made in the trial court.

And as such, we cannot say that appellant preserved this issue for review. See TEX. R.

APP. P. 33.1(a)(1); see also Wilson, 71 S.W.3d at 349; Dixon, 2 S.W.3d at 273.

        And even if appellant had preserved this issue for review, the record does not

indicate that appellant admitted guilt in Waller County to unlawfully possessing a

firearm as a felon. Section 12.45(a) specifically requires an admission of guilt. See

Wilkins v. State, 574 S.W.2d 106, 107-08 (Tex. Crim. App. 1978) (noting that, among other

things, section 12.45(a) refers to the punishment phase of the trial); see also Escobedo v.

State, 643 S.W.2d 243, 246 (Tex. App.—Austin 1992, no pet.). While a defendant is not

required to plead guilty to the unadjudicated offense, the evidence must otherwise

indicate his admission of guilt. Zapata v. State, 905 S.W.2d 15, 16 (Tex. App.—Corpus

Christi 1995, no pet.). Furthermore, section 12.45(b) requires the sentencing court to

have permission from the prosecutor with jurisdiction; it does not permit reliance upon

the oral representations of defendant’s counsel or the prosecutor from the court’s own

jurisdiction. Escobedo, 643 S.W.2d at 246. And while section 12.45 does not require the

judgment to reflect the trial court’s consideration of the unadjudicated offense or the

prosecutor’s permission, it is the better practice to include this information in written

form. See Whalon v. State, 725 S.W.2d 181, 194-95 n.3 (Tex. Crim. App. 1986) (op. on

reh’g); see also Escobedo, 643 S.W.2d at 246.

        The plea papers in this case do not contain any written stipulation or confession

in Waller County to unlawful possession of a firearm by a felon. Furthermore, the

Ex parte Butler                                                                      Page 8
record does not contain any oral stipulation or confession testified to by any witness.

Instead, the plea agreement simply stated that the unindicted unlawful-possession-of-a-

firearm-by-a-felon complaint would be dismissed.          And the 506th Judicial District

Court’s     judgment   merely    reflects   this   statement.    Moreover,   Hernandez’s

uncontroverted testimony was that the complaint was “[a] straight dismissal” in

response to a request made by a Brazos County Assistant District Attorney, rather than

a dismissal pursuant to section 12.45 of the Texas Penal Code.

        Therefore, even if appellant had preserved this issue for review, we cannot say

that the record is sufficient to demonstrate that section 12.45 barred prosecution in

Brazos County for this offense. See TEX. PENAL CODE ANN. § 12.45; Zapata, 905 S.W.2d at

16; Escobedo, 643 S.W.2d at 246; see also Ex parte George, Nos. 04-96-00065-CR, 04-96-

00066-CR, 04-96-00067-CR, 04-96-00068-CR, 1996 Tex. App. LEXIS 1942, at *10 (Tex.

App.—San Antonio May 15, 1996, no pet.) (not designated for publication) (concluding

that the requirements of section 12.45 were not met because there was no evidence

indicating that the defendant admitted his guilt to the unadjudicated offense and that

the trial court considered the unadjudicated offense when sentencing the defendant).

Thus, viewing the facts in the light most favorable to the trial court’s ruling, we cannot

say that the trial court abused its discretion in denying appellant’s habeas-corpus

application. See Kniatt, 206 S.W.3d at 664. We overrule appellant’s sole issue on appeal.

                                       IV. CONCLUSION

        We affirm the judgment of the trial court.




Ex parte Butler                                                                     Page 9
                                           AL SCOGGINS
                                           Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 29, 2014
Do not publish
[CR25]




Ex parte Butler                                          Page 10
