                                         In The
                                    Court of Appeals
                           Seventh District of Texas at Amarillo
                                    ________________________

                                         No. 07-13-00279-CR
                                    ________________________

                                TRYONE BURLESON, APPELLANT

                                                    V.

                                THE STATE OF TEXAS, APPELLEE



                              On Appeal from the 140th District Court
                                       Lubbock County, Texas
                 Trial Court No. 2013-439,137; Honorable Jim Bob Darnell, Presiding


                                              April 15, 2015

                                   MEMORANDUM OPINION
                        Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

        Appellant, Tryone Burleson,1 was convicted by a jury of two counts of aggravated

assault with a deadly weapon, double-enhanced, and sentenced to confinement for a

term of ninety-nine years.2 By two issues he asserts the trial court erred by: (1) allowing


        1
            We note that Appellant signs his name “Tyrone.” The judgments reflect, however, “Tryone.”
        2
          TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). As indicted, each offense was a second
degree felony. Id. at § 22.02(b). Because each offense was enhanced by two prior felony convictions—
assault on a public servant and unlawful possession of a firearm by a felon—the applicable range of
punishment for each offense was by confinement for life, or for any term of not more than 99 years or less
than 25 years. Id. at § 12.42(d).
the presentation of inadmissible evidence and (2) excluding the presentation of

admissible evidence. We affirm.


                                      BACKGROUND


      In July 2013, Appellant was charged by indictment with two counts of aggravated

assault with a deadly weapon and one count of unlawful possession of a firearm by a

felon. Count one of the indictment alleged that Appellant intentionally, knowingly, or

recklessly caused bodily injury to Joseph Kemp by shooting him with a deadly weapon,

to-wit: a firearm, during the commission of an assault. Count two of the indictment

alleged Appellant intentionally or knowingly threatened Joseph’s son, Chase Kemp, with

imminent bodily injury while using a deadly weapon, to-wit: a firearm, during the

commission of an assault. A third count charged Appellant with the offense of unlawful

possession of a firearm by a convicted felon.


      During a four day jury trial, Joseph and Chase identified Appellant as the person

who shot Joseph three times in the parking lot of the Game Room, a business

establishment in Lubbock County. As a result of the incident, Joseph was shot in the

neck, arm, and chest. The identifications by Joseph and Chase were corroborated by a

statement Joseph made immediately after the shooting to Leonard Nathan, the owner of

the Game Room, and by statements from both witnesses at the hospital where they

were taken after the shooting. A third witness testified that, shortly after the shooting,

she saw Appellant run across the street, jump into his car, and take off. The jury

convicted Appellant of two counts of aggravated assault. After Appellant pled “true” to

both enhancements, the jury assessed his punishment at confinement for a term of

ninety-nine years. The State dismissed the felon in possession of a firearm charge and
                                            2
the trial court subsequently issued its Judgment(s) of Conviction by Jury sentencing him

to ninety-nine years confinement on each count.          The judgments provided that the

sentences would be served concurrently. This appeal followed.


                    ISSUE ONE—ADMISSION OF INADMISSIBLE EVIDENCE


       By his first issue, Appellant asserts the trial court erred by overruling his objection

to the testimony of Bill Roberts, a local pawn shop owner, concerning a statement made

to him by Alexandra Wilburn, Appellant’s fiancée. Appellant contends the statement

was inadmissible hearsay and irrelevant. According to Roberts’s testimony, Wilburn

told him, “[Appellant] shot that man.” Roberts was called as a State’s witness after

Wilburn denied making the statement during her testimony at trial. The State contends

Roberts’s statement was admissible for purposes of impeachment.


       We review a trial court’s evidentiary ruling for abuse of discretion. Hammons v.

State, 239 S.W.3d 798, 806 (Tex. Crim. App. 2007). Under that standard, an appellate

court will reverse the trial court’s decision only if it acted arbitrarily, unreasonably, or

without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d

372, 380 (Tex. Crim. App. 1991). As long as the trial court’s ruling is within the zone of

reasonable disagreement, we will not intercede. Lopez v. State, 86 S.W.3d 228, 230

(Tex. Crim. App. 2002); Montgomery, 810 S.W.2d at 391 (op. on reh’g).


       A party may impeach a witness with evidence of a prior inconsistent statement if

the party first presents the witness with the existence of the statement, describes the

details and circumstances surrounding the statement, and then gives the witness an

opportunity to explain or deny the statement. TEX. R. EVID. 613(a). If the admission is


                                              3
partial, qualified, or otherwise equivocal, or if the witness disclaims any memory of

making the statement, then the prior statement is admissible for impeachment

purposes. Ruth v. State, 167 S.W.3d 560, 566 (Tex. App.—Houston [14th Dist.] 2005,

pet. ref’d) (citing McGary v. State, 750 S.W.2d 782, 786 & n.3 (Tex. Crim. App. 1988)).

Furthermore, statements offered for the purpose of showing what was said and not for

the truth of the matter asserted do not constitute hearsay. Lozano v. State, 359 S.W.3d

790, 820 (Tex. App.—Fort Worth 2012, pet. ref’d). See Flores v. State, 48 S.W.3d 397,

404 (Tex. App.—Waco 2001, pet. ref’d) (prior statement that is offered to impeach a

witness’s credibility is not hearsay).


       On direct examination, Wilburn was told the contents of her prior inconsistent

statement, the time and place it was made, and to whom it was made. The State

provided her with an opportunity to admit, explain, or deny the prior statement.

Wilburn’s response was that “[she] [d]id not tell Roberts that [Appellant] shot the guy.”

Accordingly, Wilburn’s denial established a sufficient basis to admit the testimony as a

prior inconsistent statement. See Ruth, 167 S.W.3d at 566.


       In addressing the prejudicial impact of the statement, Appellant also asserted the

trial court erred by not issuing a limiting instruction after Roberts testified as to Wilburn’s

statement.    Texas Rule of Evidence 105 provides that “[w]hen evidence which is

admissible as to one party or for one purpose but not admissible as to another party or

for another purpose is admitted, the court, upon request, shall restrict the evidence to its

proper scope and instruct the jury accordingly; but, in the absence of such request the

court’s action in admitting such evidence without limitation shall not be a ground for

complaint on appeal.” TEX. R. EVID. 105(a) (emphasis added). A party opposing the

                                              4
admission or restricted use of evidence has the burden of objecting and requesting a

limiting instruction when the evidence is introduced. See Garcia v. State, 887 S.W.2d

862, 878 (Tex. Crim. App. 1994), cert. denied, 514 U.S. 1021, 115 S. Ct. 1368, 131

L. Ed.2d 223 (1995), overruled in part on other grounds, Hammock v. State, 46 S.W.3d

889, 893 (Tex. Crim. App. 2001). If a limiting instruction is not requested when the

evidence is introduced then it is admitted for all purposes.     Delgado v. State, 235

S.W.3d 244, 251 (Tex. Crim. App. 2007). Because Appellant did not request a limiting

instruction at trial, he cannot now complain that the trial court erred by not giving one

sua sponte.


       We find the statement was admissible for purposes of impeachment, and

therefore, the trial court did not err in overruling Appellant’s hearsay objection to

Roberts’s testimony concerning Wilburn’s out-of-court statement. Appellant’s first issue

is overruled.


                    ISSUE TWO—EXCLUSION OF ADMISSIBLE EVIDENCE


       By his second issue, Appellant contends the trial court erred by denying him a

meaningful opportunity to present evidence of a defensive theory.           Specifically,

Appellant contends the trial court erred by refusing to allow him to call a witness to

testify regarding felony drug charges that had been filed against Leonard. It seems that

several months after Joseph was shot, Leonard was indicted for possession of a

controlled substance with intent to deliver. Before Appellant came to trial, Leonard

passed away and those charges were dismissed.            Appellant sought to introduce

evidence of the charges in order to present the defensive theory that the shooting may

have occurred over drug dealings between Joseph and Leonard. Other evidence had
                                           5
already been presented concerning Joseph’s drug use.         Here, the uncontradicted

evidence at trial showed Joseph left the Game Room with Leonard through the rear

entrance of the establishment and entered its parking lot.    Joseph then spoke with

Leonard for a short period of time before Leonard returned to the Game Room. While

still standing in the parking lot with Chase, Joseph was then shot after he asked

Appellant if he “had a problem.” After hearing the gunshots, Leonard returned to the

parking lot, where he discovered that Joseph had been injured. Leonard then drove

Joseph and Chase to the hospital.


      A criminal defendant is guaranteed the constitutional right to have “a meaningful

opportunity to present a complete defense.” Miller v. State, 36 S.W.3d 503, 506 (Tex.

Crim. App. 2001) (quoting Gilmore v. Taylor, 508 U.S. 333, 343, 113 S. Ct. 2112, 124

L. Ed.2d 306 (1993)). While the exclusion of evidence relevant to a defensive theory

can amount to a violation of that right; not every erroneous exclusion of evidence

amounts to a constitutional violation. Potier v. State, 68 S.W.3d 657, 659 (Tex. Crim.

App. 2002). According to the Court of Criminal Appeals, there are two circumstances in

which the improper exclusion of evidence may establish a constitutional violation: (1)

when a state evidentiary rule categorically and arbitrarily prohibits the defendant from

offering relevant evidence that is vital to his defense or (2) when a trial court

erroneously excludes relevant evidence that is a vital portion of the case and the

exclusion effectively precludes the defendant from presenting a meaningful defense.

Ray v. State, 178 S.W.3d 833, 835 (Tex. Crim. App. 2005) (citing Potier, 68 S.W.3d at

659-62); Wiley v. State, 74 S.W.3d 399, 405 (Tex. Crim. App. 2002). If the error is

found to be of constitutional proportions, we “must reverse a judgment of conviction or


                                           6
punishment unless [we] determine beyond a reasonable doubt that the error did not

contribute to the conviction or punishment.” TEX. R. APP. P. 44.2(a).


       Here, Appellant does not claim that an evidentiary rule categorically and

arbitrarily prohibited him from offering evidence. Therefore, we must first determine

whether the trial court impermissibly excluded testimony regarding the indictment

against Leonard; and if so, whether the circumscribed evidence was so vital a part of

Appellant’s case that it effectively precluded him from presenting a defense. The initial

question then is whether the trial court’s decision to not allow testimony concerning

Leonard’s indictment amounted to an erroneous exclusion of admissible evidence. We

believe it did not.3


       Evidence which is not relevant is inadmissible. TEX. R. EVID. 402. Relevant

evidence is evidence that has any tendency to make the existence of any fact that is of

consequence to the determination of the action more or less probable than it would be

without the evidence. TEX. R. EVID. 401; Montgomery, 810 S.W.2d. at 386. When

determining whether evidence is relevant, it is important to remember that courts

examine the purpose for which the evidence is being introduced and it is critical that

there be a direct or logical connection between the actual evidence and the proposition

sought to be proved. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009).

When making an admissibility determination, the trial court considers the probative

value of the evidence and weighs it against the risks of undue prejudice, undue delay or

waste of time, and confusing the jury. Ivie v. State, 407 S.W.3d 305, 319 (Tex. App.—


       3
         Because there was no evidentiary error, we need not address whether Appellant was harmed
by the exclusion of that evidence. See TEX. R. APP. P. 47.1; Ray v. State, 178 S.W.3d 833, 835 (Tex.
Crim. App. 2005) (citing Potier, 68 S.W.3d at 659-62); Wiley v. State, 74 S.W.3d 399, 405 (Tex. Crim.
App. 2002).
                                                  7
Eastland 2013, pet. ref’d) (citing Hodge v. State, 631 S.W.2d 754, 758 (Tex. Crim. App.

1982)).


      Here, to prove his defensive theory, Appellant would have to establish that (1)

Leonard and Joseph were engaged in some sort of drug dealing and (2) Joseph was

shot by someone other than Appellant as a result of those dealings. Proving that the

shooting may have occurred over drug dealings between Joseph and Leonard would

not have been relevant to the ultimate question of who shot Joseph. The uncontradicted

testimony at trial was that Leonard owed Joseph money for construction work, that they

talked in the parking lot, that Leonard then went inside the Game Room, and that

Appellant then shot Joseph three times. The fact that Leonard was later indicted for

drug trafficking simply was not relevant to the jury’s determination whether Appellant

shot Joseph. See Ivie, 407 S.W.3d at 319-20.


      Furthermore, the exclusion of evidence pertaining to Leonard’s indictment did not

prevent Appellant from offering evidence concerning Joseph’s drug problems or making

the argument that he was involved in a drug transaction at the time he was shot.

Evidence of Joseph’s drug use was properly before the jury.          That Appellant was

“unable to present his defense to the extent and in the form he desired is not prejudicial

where, as here, he was not prevented from presenting the substance of his defense to

the jury.” Potier, 68 S.W.3d at 666 (quoting United States v. Willie, 941 F.2d 1384,

1398-99 (10th Cir. 1991), cert. denied, 502 U.S. 1106, 112 S. Ct. 1200, 117 L. Ed.2d

440 (1992)).




                                            8
      Accordingly, we conclude the trial court did not abuse its discretion by excluding

testimony related to Leonard’s indictment. Appellant’s second issue is overruled.


                                      CONCLUSION


      The trial court’s judgment is affirmed.




                                                Patrick A. Pirtle
                                                   Justice


Do not publish.




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