Opinion filed October 31, 2013




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-11-00288-CR
                                     __________

                  CHARLES E. BUTCHER II, Appellant

                                         V.

                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 403rd District Court
                                 Travis County, Texas
                    Trial Court Cause No. D-1-DC-11-904064


                      MEMORANDUM OPINION
      The jury found Charles E. Butcher II guilty of aggravated kidnapping and
assessed punishment at confinement in the Institutional Division of the Texas
Department of Criminal Justice for life and a fine of $10,000. See TEX. PENAL
CODE ANN. § 20.04 (West 2011). The trial court sentenced Butcher accordingly.
We affirm.
      Butcher presents seven issues for review. In his first issue, Butcher asserts
that the trial court erred when it admitted physical evidence seized from Butcher’s
apartment and pickup because the evidence was obtained as a result of his illegal
detention. Butcher complains in his second and third issues that the trial court
erred when it admitted hearsay testimony by two police officers. In his fourth
issue, Butcher argues that the trial court erred when it compelled him to submit to
the photographing of his tattoos. Butcher alleges in his fifth and six issues that the
evidence was legally and factually insufficient to support the jury’s finding that he
did not release the victim in a safe place. And, in his seventh issue, Butcher asserts
that the trial court erred when it admitted evidence of his prior conviction from
Korea.
      The evidence at trial showed that J.G., a nine-year-old girl, was walking to
the bus stop when a man came up behind her and grabbed her by putting one arm
around her waist and his other hand over her mouth.          He was wearing black
gloves. He put her in the front passenger floorboard of his pickup and drove her
to his apartment. J.G. testified that the pickup was old and red and had a white
cover over the bed. J.G. also testified that the man had a kitchen knife in his hand
and told her that he would cut her if she screamed.
      At his apartment, the man put her in the bedroom closet, and she watched
“SpongeBob.” J.G. told him she was hungry on two separate occasions, and on
each occasion, he fed her. The man fed her bread with jelly the first time she asked
for food and ravioli the second time she asked for food. J.G. also told him that her
mother would get mad if she was not home by the time she normally came home
from school. The assailant put her back in the floorboard of his pickup and drove
her to the apartments next to where she lived. She told him that she did not know
                                          2
how to get home from that location. The man drove her back to the street where he
initially grabbed her, and she walked home.
      J.G.’s mother was not at home when J.G. got there. Because J.G.’s assailant
had taken her cell phone and because she did not have a home phone, she went to
her neighbor’s house to use the neighbor’s phone to call her mother. Her mother
and several officers arrived, and the police began an investigation.
      J.G. described her assailant’s apartment as a one-bedroom apartment that
was upstairs in a red brick building.         The apartment complex was under
construction.    She testified that the apartment was decorated with a Harley-
Davidson theme; “[t]here was Harley-Davidson everywhere.” J.G. also testified
that she remembered telling the woman at the Children’s Advocacy Center that the
man had one tattoo with a black miniature tiger on one arm and another tattoo with
a skull and bandana that said “Seek and” with a third word.
      The police identified Butcher as a suspect, and they later arrested him. The
police searched his apartment and pickup and seized several items, including a
paring knife and eating utensils. The police also photographed Butcher’s pickup
and apartment.
      J.G. identified photographs of the knife found in Butcher’s pickup as the
knife her assailant used to threaten her. She also identified photographs of the
outside and inside of Butcher’s pickup, of the white camper shell that was on his
pickup, of the Harley-Davidson floor mat in his pickup, and of the Harley-
Davidson sticker on the back window of the camper shell.               In addition, she
identified photographs of the closet and living room of Butcher’s apartment as the
place where she was taken.       Other photographs taken by police during their
investigation showed bread, jelly, and cans of ravioli in Butcher’s kitchen.
      A forensic analyst testified that J.G.’s DNA was found on the paring knife
from Butcher’s pickup and on the blue spoon in Butcher’s kitchen sink. J.G. could
                                          3
not be excluded as a contributor to the DNA found on a pair of black and gray
gloves.   The analyst also testified that Butcher could not be excluded as a
contributor to the DNA found on the spoon, several other items recovered from his
kitchen, the black and gray gloves, and a pair of black fingerless gloves.
      In his first issue, Butcher contends that the trial court erred when it admitted
the DNA evidence and other physical evidence, such as the knife and the spoon,
because the evidence would not have been found if the police did not exploit his
illegal arrest.   Specifically, Butcher argues that, if he had not been illegally
arrested, he would have been at home cleaning his apartment and pickup, and the
police would not have found the items later that day when they searched his
property. Butcher does not challenge the trial court’s finding that the warrants to
search his apartment and pickup were supported by probable cause.
      The trial court held numerous pretrial hearings on the suppression issue.
The evidence during the hearings showed that Austin Police Officers Troy Boddy
and Kevin Rybarski of the criminal intelligence unit conducted surveillance of
Butcher once he became a suspect in the kidnapping investigation. During their
surveillance, they followed Butcher to Walgreen’s and observed Butcher commit
four traffic violations: he failed to signal an intent to turn left on three separate
occasions and made an improper turn on one occasion. See TEX. TRANSP. CODE
ANN. §§ 545.101, 545.104 (West 2011). The officers did not conduct a traffic stop
because they were in an unmarked vehicle. However, the officers did approach
Butcher when he stopped at Walgreen’s and told him that they observed him
commit the traffic violations. The officers also informed him that a detective
wanted to speak to him regarding an open investigation. They asked him if he
would go to the police station with them to talk to the detective.
      Butcher went to the police station with the officers and spoke with
Detective Christopher Douglas Keen of the Austin Police Department’s child
                                          4
abuse unit. Upon entering the interview room, Detective Keen read Butcher the
Miranda 1 warnings and told him he was not free to leave. Butcher waived his
rights and spoke with Detective Keen for approximately one and one-half hours
before requesting an attorney and ending the interview.
      At the end of the interview, Detective Keen executed an arrest warrant on
Butcher for failure to register as a sex offender. Later that day, a magistrate signed
an arrest warrant for aggravated kidnapping and also issued search warrants for
Butcher’s apartment and pickup. Officers executed the search warrants and found
physical evidence linking Butcher to the kidnapping. The next day, an order of
commitment was filed for the aggravated kidnapping offense.
      The affidavit supporting the arrest warrant for failure to register as a sex
offender contained a statement by Officer Mike Summers that Butcher had “not
appeared in person to the Austin Police Department’s Sex Offender Registration
Unit to register as required.” However, Nazareth Munoz, an employee of the
Austin Police Department who registered sex offenders, testified that Butcher had
appeared and had begun the registration process by completing the required form.
The registration form was contained in the file that Officer Summers reviewed
before preparing his affidavit. Butcher argued that Officer Summers knew that the
statement was false or that he made the statement with a reckless disregard for the
truth and that, therefore, under Franks v. Delaware, 438 U.S. 154 (1978), the
warrant should not have been issued.
      The trial court suppressed Butcher’s arrest for failure to register, but denied
Butcher’s motion to suppress as to the physical evidence seized from his apartment
and pickup. The trial court entered the following findings of fact and conclusions
of law: (1) Officers Boddy and Rybarski observed Butcher commit three traffic
violations; (2) Butcher voluntarily accompanied the officers to the police station;
      1
       Miranda v. Arizona, 384 U.S. 436 (1966).

                                                  5
(3) Butcher made statements to Detective Keen after he was given Miranda
warnings; (4) Butcher ended the interview at his own request; (5) the search
warrant affidavits for Butcher’s apartment and pickup were based on facts and
circumstances within Detective Keen’s knowledge at the time of the interview; (6)
Butcher was under arrest at the time Detective Keen read him the Miranda
warnings; (7) the statements that Butcher made to Detective Keen prior to his
request for an attorney are admissible; (8) Butcher freely and voluntarily made the
statements; (9) the arrest for failure to register is suppressed; and (10) the affidavit
provided probable cause to support the issuance of the warrants to search Butcher’s
apartment and pickup.       The trial court did not expressly address Butcher’s
argument that the evidence was found as a result of his illegal detention.
       We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App.
2000). We give great deference to the trial court’s findings of historical facts as
long as the record supports the findings. Guzman v. State, 955 S.W.2d 85, 87
(Tex. Crim. App. 1997). Because the trial court is the exclusive factfinder, the
appellate court reviews evidence adduced at the suppression hearing in the light
most favorable to the trial court’s ruling. Carmouche, 10 S.W.3d at 327. We also
give deference to the trial court’s rulings on mixed questions of law and fact when
those rulings turn on an evaluation of credibility and demeanor. Guzman, 955
S.W.2d at 87. Where such rulings do not turn on an evaluation of credibility and
demeanor, we review the trial court’s actions de novo. Id.
      The Texas exclusionary rule prohibits the State from using evidence against
the accused that was obtained in violation of the law. TEX. CODE CRIM. PROC.
ANN. art. 38.23 (West 2005). If the evidence seized is sufficiently attenuated from
the violation of the law, the evidence is not considered to be obtained in violation
of the law. Johnson v. State, 871 S.W.2d 744, 750 (Tex. Crim. App. 1994). To
                                           6
determine whether the discovery of physical evidence is attenuated from the
violation we consider three factors: (1) the temporal proximity of the arrest and the
seizure of physical evidence, (2) the presence of intervening circumstances, and (3)
the purposefulness or flagrancy of the police misconduct. State v. Mazuca, 375
S.W.3d 294, 301–07 (Tex. Crim. App. 2012).
        Here, Butcher argues that, if he had not been illegally arrested by
Detective Keen for failure to register as a sex offender, he would have been at
home cleaning his apartment and pickup, and the police would not have recovered
evidence linking him to the crime. Under the first factor, there was no temporal
separation between the illegal detention and the seizure of evidence. Butcher was
under arrest for failure to register as a sex offender at the same time that the police
searched his apartment and pickup. Thus, the temporal proximity factor weighs in
favor of suppression.
        The trial court found that the warrants to search Butcher’s apartment and
pickup were supported by probable cause. Butcher does not contest this finding on
appeal. Thus, the search warrants constitute an intervening circumstance that
breaks the causal connection between the illegal arrest and the seizure of physical
evidence. The second factor weighs against suppression.
        As to the third factor—purposefulness or flagrancy of police conduct—the
record shows that Detective Keen arrested Butcher under a warrant issued by a
neutral magistrate. The record does not show that Detective Keen knew that the
statement in the affidavit for the warrant was false or that he otherwise acted in bad
faith when he executed the warrant. In addition, prior to Detective Keen arresting
Butcher for failure to register as a sex offender, Officers Boddy and Rybarski
could have arrested Butcher for the traffic violations he committed within their
view.    Furthermore, Detective Keen had probable cause to arrest Butcher for
kidnapping at the time of the interview. Detective Keen knew that Butcher, his
                                          7
pickup, and his apartment complex matched the descriptions given by the victim.
He also knew that officers saw a paring knife in Butcher’s pickup that matched the
victim’s account of being threatened with a kitchen knife. Thus, the third factor
weighs against suppression.
      This case also presents a unique set of circumstances that, when reviewed as
a whole, weigh against suppression. Butcher voluntarily went to the police station
to talk to Detective Keen. The station was approximately twenty to thirty minutes
away from Walgreen’s, where Butcher left his motorcycle. Even if Detective Keen
had let him go within minutes of his arrival, he would have had to find
transportation back to Walgreen’s. Butcher testified that his plan was to leave
Walgreen’s, go to the dollar store to purchase cleaning supplies, and go back home
to clean. Thus, after he secured a ride back to Walgreen’s, he still would have had
to go shopping for supplies before he was able to return home to clean. The
evidence showed that Butcher arrived at the police station shortly before noon.
The search warrants were executed between 4:00 and 5:00 p.m. It is a matter of
pure speculation as to whether Butcher would have in fact had time to clean his
apartment and destroy all of the evidence linking him to the crime. In addition,
had Officers Boddy and Rybarski arrested Butcher for the traffic offenses he
committed within their view, he would have been legally detained and would not
have been able to clean his apartment and pickup prior to the execution of the
search warrants.
      We conclude that the seizure of the evidence from Butcher’s apartment and
pickup was sufficiently attenuated from the arrest so as not to require its exclusion.
Even if the seizure of evidence was not sufficiently attenuated from the illegal
arrest, we decline to extend the exclusionary rule to protect or encourage criminal
activity in the form of destroying evidence. See Segura v. United States, 468 U.S.
796, 816 (1984). We overrule Butcher’s first issue.
                                          8
      In his second and third issues, Butcher argues that the trial court erred when
it admitted hearsay testimony by Officer Ruben Velasquez and Detective Keen
regarding the description of Butcher’s person, vehicle, and apartment and when it
admitted hearsay testimony by Detective Keen regarding specific items found in
Butcher’s apartment.
      We review a trial court’s decision to admit or exclude evidence under an
abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.
Crim. App. 1991) (op. on reh’g). We will reverse a trial court’s ruling only if it is
outside the “zone of reasonable disagreement.” Id.
      An officer is permitted to testify as to how he proceeded in the investigation
based on general information the officer received. Poindexter v. State, 153 S.W.3d
402, 408 n.21 (Tex. Crim. App. 2005). However, unless the officer’s conduct has
been challenged at trial, details of the information the officer received are
considered hearsay and are inadmissible. Id. “[T]estimony that the officer acted
upon ‘information received’ or words to that effect should be sufficient.”
Schaffer v. State, 777 S.W.2d 111, 115 n.4 (Tex. Crim. App. 1989).
      In Burks v. State, the Court of Criminal Appeals found that an officer’s
testimony relating the detailed description of the individual he went looking for
after talking with the victim and a witness was inadmissible hearsay. Burks v.
State, 876 S.W.2d 877, 897–98 (Tex. Crim. App. 1994). Here, like the officer in
Burks, Officer Velasquez and Detective Keen testified to particular details they
learned from the victim. Officer Velasquez related the detailed descriptions of
Butcher and his pickup that he learned from J.G. Detective Keen related the
detailed description of Butcher’s tattoos and of his pickup that he learned from
J.G.’s forensic interview.
      The testimony by each officer went beyond what is permitted to show how
the officers proceeded in their investigation. The officers did not testify that they
                                          9
acted on “information received” or words to that effect, but instead related the
detailed information that they had learned from the victim. The officers’ testimony
was inadmissible hearsay, and the trial court erred when it admitted the testimony
over Butcher’s objections.
      The State also elicited inadmissible hearsay from Detective Keen when the
prosecutor asked him whether the discovery of a loaf of bread, cans of ravioli, and
grape jelly were important in linking Butcher to the kidnapping. Detective Keen’s
affirmative reply implied that J.G. had stated that those specific items were in
Butcher’s apartment. This testimony also went beyond what was permitted to
show how Detective Keen proceeded in the investigation. The trial court erred
when it allowed the State to elicit indirect hearsay from Detective Keen.
      Having determined that the trial court erred, we must now determine
whether the error is reversible under TEX. R. APP. P. 44.2(b), which applies to
nonconstitutional errors. Pursuant to Rule 44.2(b), an error is not reversible error
unless it affects a substantial right of the defendant. A substantial right is affected
when the error has a substantial and injurious effect or influence in determining the
jury’s verdict. Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001); King v.
State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). An accused’s substantial
rights are not affected by the erroneous admission of evidence if the court, after
examining the record as a whole, has fair assurance that the error did not influence
the jury or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex.
Crim. App. 1998). When conducting a Rule 44.2(b) harm analysis based upon the
erroneous admission of evidence, an appellate court should consider everything in
the record, including:
      [A]ny testimony or physical evidence admitted for the jury’s
      consideration, the nature of the evidence supporting the verdict, the
      character of the alleged error and how it might be considered in
      connection with other evidence in the case, the jury instructions, the
                                          10
      State’s theory and any defensive theories, closing arguments, voir
      dire, and whether the State emphasized the error.

Rich v. State, 160 S.W.3d 575, 577–78 (Tex. Crim. App. 2005).
      The hearsay testimony by Officer Velasquez and Detective Keen did not
contain any information that was not otherwise before the jury except for
Officer Velasquez’s detailed description of J.G.’s assailant. J.G. testified that her
assailant was a white male with red hair; however, this description was not the
same description that Officer Velasquez related during his testimony. Butcher
argues that Officer Velasquez’s testimony was harmful because it served as a
proxy for in-court identification; J.G. did not identify Butcher as her assailant. The
State did mention part of the detailed description in its closing argument to show
that Butcher matched the description that J.G. gave to the officer. However, even
when this testimony is not considered, there is ample evidence to link Butcher to
the kidnapping.
      A forensic analyst testified that J.G.’s DNA was found on a spoon in
Butcher’s apartment and on a paring knife in his pickup. The analyst also testified
that Butcher could not be excluded as a contributor to DNA found on the spoon
and that neither J.G. nor Butcher could be excluded as contributors to DNA found
on a pair of black and gray gloves. J.G. also testified as to the unique Harley-
Davidson theme of her assailant’s apartment and identified photographs of
Butcher’s apartment as the apartment where she was taken. Furthermore, the trial
court gave the jury a limiting instruction that it was only to consider the testimony
for the purpose of showing what the officers were looking for and why they acted
the way they did in proceeding upon their investigation. Considering the record as
a whole, we have a fair assurance that the errors did not influence the jury or had
but a slight effect. See Johnson, 967 S.W.2d at 417. Butcher’s second and third
issues are overruled.
                                         11
      Butcher argues in his fourth issue that the trial court did not have the
authority to order him to submit to the photographing of his tattoos. Butcher
acknowledges that the trial court did not violate his Fifth Amendment right to be
free from self-incrimination when it compelled him to submit to the
photographing. See Canales v. State, 98 S.W.3d 690, 697 (Tex. Crim. App. 2003).
Butcher has not cited, and we have not found, any authority that stands for the
proposition that a trial court cannot compel a defendant to submit to the
photographing of his tattoos.
      However, even if the trial court erred when it compelled Butcher to submit
to the photographing of his tattoos, the error was harmless under Rule 44.2(b). We
do not agree with Butcher that such an error should be reviewed under Rule 44.2(a)
because we do not believe a constitutional right is violated when a trial court
compels a defendant to submit to the photographing of his tattoos.
      After considering everything in the record under the Rule 44.2(b) harm
analysis as set out above, we conclude that the trial court’s order did not affect
Butcher’s substantial rights. Although the State used the photographs of Butcher’s
tattoos to link Butcher to J.G.’s description of her assailant’s tattoos, the DNA
evidence, J.G.’s identification of Butcher’s pickup as the pickup used to kidnap
her, and J.G.’s identification of Butcher’s apartment as the apartment where she
was taken provided ample evidence to identify Butcher as J.G.’s assailant. We
also note that the photographs themselves were admissible. We overrule Butcher’s
fourth issue.
      In his fifth and sixth issues, Butcher contends that the evidence was legally
and factually insufficient to support the jury’s rejection of his affirmative defense
of safe release. If a defendant shows by a preponderance of the evidence that he
voluntarily released the victim in a safe place, the offense is reduced from a first-
degree felony to a second-degree felony. PENAL § 20.04(d).
                                         12
      Even after Brooks,2 we review affirmative defenses for both legal and
factual sufficiency. Matlock v. State, 392 S.W.3d 662 (Tex. Crim. App. 2013). In
reviewing the legal sufficiency of the evidence to support a jury’s rejection of an
affirmative defense in which the defendant has the burden of proof, we first look
for evidence favorable to the jury’s negative finding. Id. at 669. When we review
the record for favorable evidence, we disregard all contrary evidence unless a
reasonable factfinder could not. Id. If there is no evidence to support the jury’s
rejection of the affirmative defense, we must determine whether the affirmative
defense was established as a matter of law. Id. Only if the affirmative defense was
conclusively proven may we conclude that the evidence is legally insufficient to
support the jury’s rejection of the affirmative defense. Id.
      In reviewing the factual sufficiency of the evidence to support a jury’s
rejection of an affirmative defense in which the defendant has the burden of proof,
we review the evidence in a neutral light and determine whether the finding is so
against the great weight and preponderance of the evidence so as to be manifestly
unjust. Id. at 670; Meraz v. State, 785 S.W.2d 146, 154 (Tex. Crim. App. 1990).
      In determining whether the location of the release was a “safe place,” we
consider several factors: the remoteness of the location, the proximity of help, the
time of day, the climate, the condition of the victim, the character of the location
and surrounding neighborhood, and the victim’s familiarity with the location or
neighborhood. Rodriguez-Flores v. State, 351 S.W.3d 612, 636 (Tex. App.—
Austin 2011, pet. ref’d). “These factors, however, are only aids to be used in
deciding whether the evidence, after considering all the surrounding circumstances
existent in the case, shows the jury’s finding was manifestly unjust.” Harrell v.
State, 65 S.W.3d 768, 773 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).


      2
       Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).

                                               13
      The evidence showed that J.G. was released at the same location that she
was kidnapped: on the street leading from her condo to the bus stop. J.G. was
familiar with the area because she had been walking down that street to the bus
stop every school day for approximately one month. She testified that there was no
heavy traffic on the street.
      J.G.’s mother testified that they lived in a nice community and that she felt
very safe within the community. However, she also testified that she did not feel
as safe after her daughter was kidnapped.
      Officer Velasquez testified that the area was “desolate,” meaning that it was
“[s]parsely populated, trees, grass, kind of like sort of country living sort of.” He
characterized the community as a comfortable, middle class area with no
reputation for drugs or violent crime. There was a shopping center nearby that was
under construction, but several stores were open, including a nail salon, grocery
store, and wine store. There was also a field near the community with trees and
pergolas. There had been no reports of wild animals in the area.
      When J.G. was released, she was not injured or unable to walk. She was,
however, without a phone because Butcher had taken her cell phone from her and
did not return it when he released her. She also did not have a home phone that she
could use to call for help.
      After reviewing the evidence regarding J.G.’s release, we find that the
evidence was legally sufficient to support the jury’s rejection of Butcher’s
affirmative defense. J.G. was nine years old, was without a cell phone, and was
released in the same spot where she was earlier abducted.
      Butcher relies on Storr v. State for the proposition that the fact that the
victim was released at the same spot from where she was abducted does not
support a conclusion that the area was unsafe simply because the offense had
occurred at that location. Storr v. State, 126 S.W.3d 647, 652–53 (Tex. App.—
                                         14
Houston [14th Dist.] 2004, pet. ref’d). The Fourteenth Court of Appeals found that
the evidence conclusively established that the victim had been released in a safe
place when the victim was released where he had earlier been abducted. Id.
However, in Storr, the victim was a college student who had been abducted at the
post office near his university and returned to the same location. Id. He drove his
car to his dormitory and went to his dorm room where he found his roommate. Id.
at 653. Here, the evidence did not conclusively establish that the victim was
returned to a safe place. The victim was a nine-year-old girl who was returned to
the middle of a street. She did not have access to a cell phone, and there was no
access to transportation that could have removed her from the area. In addition,
she returned home to an empty house. We find that the circumstances of this case
are distinguishable from the circumstances in Storr. Based on the evidence, and
even if we set aside the fact that the abduction had occurred at the very spot where
the victim was released, the jury could have found that Butcher did not release J.G.
in a safe place.
      We also cannot say, after considering all of the evidence relevant to whether
J.G. was released in a safe place, that the jury’s finding was so against the great
weight and preponderance of the evidence so as to be manifestly unjust. Butcher’s
fifth and sixth issues are overruled.
      In his final issue, Butcher alleges that the trial court erred during the
punishment phase of trial when it admitted a judgment of conviction from Korea
for rape/endangerment and attempt to abduct a minor. Butcher argues that the
conviction was inadmissible because the State did not present sufficient evidence
that Korean law was compatible with minimal concepts of due process.
      The State, however, did not have the burden to show that the Korean
proceeding afforded Butcher the rights guaranteed by the United States
Constitution in order for the judgment to be admissible. “Once the State properly
                                        15
introduces a judgment and sentence and identifies appellant with them, we
presume regularity in the judgments.” Johnson v. State, 725 S.W.2d 245, 247
(Tex. Crim. App. 1987). The burden then shifts to the defendant to make an
affirmative showing that the judgment is tainted by a constitutional defect. Id.
      Defense counsel objected to the Korean judgment and argued that, under
Korean law, there was no right to confrontation, no subpoena power, no live
testimony given in the proceeding, and no indictment by a grand jury. However,
Butcher failed to offer any evidence to affirmatively show that the Korean justice
system did not afford such rights to the accused. Butcher asserts that the judgment
itself “suggests that the criminal proceedings in which it was obtained fell far
below what is deemed acceptable in American or Texas jurisprudence.”
Specifically, he contends that the judgment suggests the proceedings involved a
three-judge panel, that the evidence consisted of mainly written reports and witness
statements, and that the proceeding was not bifurcated. In addition, Butcher argues
that the judgment does not reflect whether he waived his right to a jury trial or
whether he was provided with a Korean translator. Although the judgment may
raise a question as to whether the Korean criminal proceedings offered Butcher the
same protections and rights as guaranteed by the United States Constitution, the
judgment does not affirmatively show that the proceedings did not comport with
minimal concepts of due process.
      Butcher failed to meet his burden of proof on the issue. Thus, the trial court
did not err when it admitted the Korean judgment. Butcher’s seventh issue is
overruled.




                                         16
We affirm the judgment of the trial court.




                                               JIM R. WRIGHT
                                               CHIEF JUSTICE


October 31, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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