Opinion issued April 30, 20 20

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 18
- 01134
- CR

——————————— ROBERT THOMAS BU FORD , Appella nt

V. THE STAT E OF TEXAS , Appell e e
On Appeal from the 12th District Court Grimes County, Tex a s Trial Court Ca se No. 18256

O P I N I O N
A jury convicted appellant, Robert Thomas Buford, of murder and assessed his punishment at 30 ye ars ’ imp ri sonment. 1 In two issue s on appeal, Buford argues
that ( 1) the trial court erred in denying his reque st to include addition al language in

1 See T EX
. P ENAL C ODE § 19.02(b)(1).2

the jury charge ’ s instruction s on self

- defense ; and (2) the trial court erred in excluding Bufor d ’ s e xpert witness, Augustin Gutierrez, Jr

. B ecause we conclude that the trial court adequ a te ly charged the jury on the is sue o f self

- defense and that Gutierrez ’ s opinions were not relevant to th e issues before the jury, w e affirm. Background In February 201 7, Buford was living with the complainant, Janet L ester , and they had had a tumultuous 17

- year relationship

. Buford , who was 6 ’ 4 ’ ’ and weighed approximately 245 pounds, was a heavy drinker

. L e ster , who was 5 ’ 0 ’ ’ and weighed less that 80 pounds, used mariju ana. They were both in their mid

- 70s.
L ester ’ s best friend , Claudia Greenhouse, described Lester and Buford ’ s relationsh ip as “ snipey, ” stating that “ [t]hey were always kind of saying little side comments back and forth. ” She further stated that Lester “ wa s not happy ” when
Bu ford was intoxicated , which was “ [j ]ust about every time [she ’ d] ever seen [h im ]. ” When he had been drink ing, Buford was “ [b]elli gerent, cruel sometimes. But he laughed a lot, joked a lot, but some of the things he would consider joking I would take as cruel. ” Lester also would “ gripe , compla in qui te a bit , ” especially
about Bufor d ’ s drinking. Greenhouse test ified that she observe d physical conflict b etween them twice, stating Bu ford would “ bump ” into L e ster when he was intoxi cated and b ecause of3

her “ tin y ” size, “ it would kno ck her into a chair. ” L e ster would “ push h im back and he might push he r back. ” G reenh ouse had never seen them s trike each other. In the last year, Green house noti ced that Lester was increasingly unhappy : “ She didn ’ t laugh as much. She was a little bit more withdrawn. Her stre ss level was high er. She woul dn ’ t eat as much. She was upset a lo t more. ” Buford remained the same as he had been, but he was “ [a] bit more antagonistic. The words that [they] said to each other wer e meaner, crueler. ” He also became increasin gly “ paranoi d ” about
Lester and “ would accuse her of seeing other people or ste aling things. ” Debbie S weet, Lester ’ s sister, likewise testified that Lester did not like to be
at home because Buford wa s “ always ve ry verbally abusive and he was always drunk, always. ” When he was drunk , he “ was very obnoxious ” and “ called [Lester]

na mes . ” She would argue back wit h him. Sweet observed only verbal argument s between Lester and Buford. Buford ’ s sister , Frankie Milley, a lso testified regarding the relationship between Buford and Lester. She testified that Buford was not violent , but he dr ank
dail y. Sh e testified that he was not mean when he was drunk ; he was “ silly ” and wanted to “ reminisce about childhood. ” Milley testif ied that Buford ’ s relationship with Lester “ wasn ’ t nice. ” Lester was “ always just putting [ Buford] down ” and

“ never h ad any thing nice to say about him, ever. ” On occasion , Lester would call Milley while she was fighting with Buford. Milley testified that L e ster would4

scream and cuss, that she made threats, such as statin g, “ I ’ m going to take a baseball bat to his head and k ill him. ” Milley stated that these comments “ really frightened ” her because she “ really thought [L e ster ] would do something to him. ”
Mil ley testified that she would tell Le ster that s he “ just need[ed] to leave ” if she

was so un happy. Lester told her, “ I ’ ll ki ll his ass before I end up giving him a dime

ou t of this house. ” On February 10, 2017, Buford began the day by purchasing alcohol an d drinking with a friend. Sometime around 4:00 p.m., Lester informed her friend and her sister that Bu ford had returned hom e and was drunk. Bu ford and Lester eventually had a n altercat ion , and Buford shot Leste r, killing her

. At trial, conflicting eviden ce was presented regarding the altercation that occurred at the time of the shooting. The S t ate presented evidence that a fte r she was shot, Lester called 9

- 1

- 1 and told the dispatcher, “ He shot me , ” before becoming unresponsive. Sergeant B. Baldobino was d ispatched to the scene and activated his body camera . T he video was admitted at trial, along with his testimony

. When he arr ived at Buford and Lester ’ s h ome, Sergeant Baldobino saw Lester on the front porch with a bullet wound and in “ obvious medical distress. ”
He saw Buford l ying on the floor insid e the house. He asked Buford what had happened, and Buford stated, “ I shot her. ” Sergean t Baldo bino secured the scene and found the firearm in a bedroom. Sergeant Baldobino then returned to Buford ,5

noting that he was still on the floor, with an ice pack , napkins, a set of dentures, and

“ what appeared to be a spent pro jectile ” on the f

l oor next to him

. He also saw that Buford had a head wound , which he described as “ a goo se egg on his forehead ” with a “ small abra sion , ” bu t the injury did not appear to be li fe threatening.
K eeping his eye on Buford, Serg eant Baldobino returned to the por c h to check on
Les ter, who was no longer breathing and had lost a lot of blood. At this time, other law enforcemen t pe rson nel arrived, incl uding Constable B . Jar vis. Buford refuse d medical treatment from the emergency medical p ersonnel. He needed help gett i ng from the floor to a nearby chair and was “ b ein g very uncooperative with medical personnel and all officer personnel. ” Serg eant Baldo bin o stated that “ there was a heavy odor of alcoholic beverage emitting from [Bufor d ’ s ] person, ” and he believed Buford w as “ under the inf luence of alcohol

. ” Buford made several statements to officers at the scene, prior to being taken into custody. Sergeant B a ldobino testified that Buford appeared “ disor iented and
very unco operative with the questions initial ly. ” Buford t o ld Constable Jarv is that
he had shot Lester

. Buford told Constable Jarvi s that there had never been any ph ysical alte rcations in his relat ionship with Lester , but they did not get along well and would have verbal al te rcations and “ cussed each other. ” Rega r ding the
circumst ance s of the shooting, Buford did not mention being struck or kicked by Lester. Buford did not tell Constable Jarvis that Lester had threatened to kill him.6

Buford told Constable Jarvi s that he “ drank something in the h ouse ” and bec ame

“ i m mob ile ” to the po int that he fe ll on the floor and was crawling because he could not get up. Buford stated that he hit his head on the tab le, then “ wound up crawling to his bedroom to retrieve a gun. ” Buford told Jar vis that, a s he crawled, Lester

“ was ri d ing his ass ” and “ was on him about being on the floor , ” so he turned
around and shot her while she was standing in the doorway. Subsequent ballistic testing establi shed that Buford shot Lester f rom below, co nsistent with him being on the ground and her st a nding. Ballistic testing also established that Lester had to have been standing at least three feet away from Buford when he shot her.
Buf ord also spoke with his sister , Milley, while he was b eing held in jail

. Recordings of those con versations were admit t ed into evidence, a nd Milley testified about them as well. Bu ford told her that h is injuries were sustained when he fell multiple times an d that his head injury specifically was the result of a fall.
He told Milley that Lester was berat ing him for not bei n g able to get off the floor and that she was standing in the doorway at the time he shot her. Buford told her that he tripped on a rug and h it his head on the door jam. Buford also told Milley that he got the gun out of the drawer in his bedroom to scare L ester

. Buford pr esented evidence that Lester abused marijuana . Her doctor reported that , in th e weeks lea ding up to the shooting, she had comp lained about feeling jittery , ha ving night sweats , and experiencing “ rage , ” possibly as a side7

effect of medicat i ons s he was takin g to treat medical conditions, including emphysema . Buford himself testified that his relationship with Lester was dif fic ult

a nd that she was frequently angry

. H e testified that he never p hys ically laid a hand on her, but they would fight verbally. Lester would get mad “ real easy ” and

“ accuse [him] of things that [he] didn ’ t do. ” He t estified that “ [ i ]t ’ s always something di ffere nt ” and “ [t]here was no winning. ” He desc ribed “ verbal abuse ” : She would start out kind of mildly with

— with semi attitude and then it would get worse and worse and worse and her fac e expressions, she ’d get up in my face and it looked like she was read y to hurt me some kind of way. And I ju st

— it was no use of standing there. I ’d just have to go. You know, it was a lo t of no

- win si tuat ion with her. Buford testified that when she would yell at him, he would leave the house and go for a drive in his truck or wa lk around the yard. In his trial testimony , Buford admitt ed shootin g Lester, and he testified that, at the time o f the shooting, L ester began cussing at him and then left the room.
Buford stated that he fell due to medical issues

. He testified that wh en he fell and could not get up, he was “ hur t ” and “ embarr assed ” that he could not get up to leave and get away from L ester ’ s cussing l ike he usually did. A s he was trying to get himself off the fl oor and onto his bed , he felt a blow t o the left side of hi s h ea d, ended up back on the floor, an d notice d Lester at the door of his bedroom. Buford testified that L e ster kicke d him, cursed and screamed at him, and told him , “ I ought8

to kill your ass. ” He warned her to leave him alon e, but she did not stop. He

co c ked h is pistol, and eventually shot her because he feared f or his life. Buford sought to present the testimony of Aug u stin Gu tierrez, J r., a lice nsed professional counselor, as an expe rt on victims of dom estic violence. The trial court ruled , howe ver, that Guti errez ’ s testimony was not relevant and excluded it. The trial court ultimately submitted an instruction on self

- d efense to the jur y. Buford wanted additional language to address “ apparent danger, ” arguing that the jury needed to be instructed that he was e ntitled to use deadly for ce when and to the degree necessary to prevent what he perceived as Lester ’ s attempt to murder him. The t rial court included standard instruction s on self

- defense, rea sonable belie f, and deadly force, but it overruled Buf ord ’ s reques t for any additional language in the charge. The jury found against Buford on the issue of self

- defense and co n victed him of mur der. This appeal followed. Charge E rror In his first issue, Buford argues that the tr ial court erred in rejecting his
req uest to incl ude additional langua ge regarding the rig ht to use deadly force and
appar ent dang er in the jury charge

.9

A. S t andard of Review “[A]ll alleged jury

- charge error must be considered on appellate review regardless o f preservation in the trial court.” K irsch v . State , 357 S.W.3d 645, 649 (Tex. Crim. App. 2012) ; see Ngo v. State , 175 S.W.3d 738, 743

– 44 (Tex. Crim. App. 2005) ( courts use two

- step process to re view alleged jury

- c harge error) . In our review of a jury charge, we first determine whether error occ urred; if not, our analysis ends. Kirsch , 357 S.W.3d at 649. If error occurred, whether it was preserved then dete r mines the degree of harm required f or rever sal. Id. When, as here, the defendant has properly objected to the error in the charge, reversal i s

r equi red unless the error was harmless. N go , 175 S.W.3d at 743. Trial courts must “deliver to the jury

. . . a w r itten charge dist inctly setting forth the law applicable to the case[.]” T EX
. C ODE C RIM
. P ROC
. art. 36.14; Mendez
v. State , 545 S.W.3d 548, 551

– 52 (Tex. Crim. App. 2018). When a defensive theory is raised by the evidence, the theory must be submitted to t h e jury. Reynolds

v . State , 371 S.W.3d 511, 521 (Tex. App.

— Ho uston [1st Dist.] 2012, pet. ref ’ d ) (citing Brown v. State , 955 S.W.2d 276, 279 (Tex. Crim. App. 1997)). A defense is supported (or raised) by the evidence if there is som e evidence, from any sou r ce, on each eleme nt of the defense that, if believed by the jury, would support a rational inference that each element is true. Id. at 521

– 22 ; Sh aw v. S tate , 243 S.W.3d 647, 657

– 58 (Tex. Crim. App. 2007); see also T EX
. P ENAL C ODE § 2.03( c)10

(“The issue of t he existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.”).
We review a trial court ’ s decision not to include an instruction on a defensive issue in the charge for an abuse of discretion, and we view the e v idence in the lig ht most favorable to the defendant ’ s requested submission. Re ynolds , 371 S.W.3d at 522 (citing Bufkin v. State , 207 S.W.3d 779, 782 (Te x. Crim. App. 2006), and Love v. State , 199 S.W.3d 447, 455 (Tex. App.

— Houston [1st Dist.] 2006, pet. r e f ’ d)).
B. Relevant F acts The charge stated, in relevant part, You have heard evidence t hat, when [Buford] . . . committed an act clearly dangerous t o human life with intent to cause serious bod i ly injury to an individual, n ame ly, Janet Lester, by shooting J a n e t Lester with a f irearm, he believed his use of force was ne cessary to defend hi mself against Janet Lester ’s use or attempted use of unlawful de adly fo rce. Re levant Statutes A person ’s use of deadly force against another that would otherwise constitut e the crim e of murd er is not a criminal offense if the person reasonably believed the fo rce used was immediately necessary to protect the person ag ainst t he other ’s use o r attempted use of unlawful deadly force. Self

- defense does not cover conduct in respo n s e to verbal provo cation alone. The defendant must have reasonably believed the other person had done more than verbally pro voke the defendant.11

Th e charg e defined “ reasonable belief ” as “ a belief that an ordinary and prudent person w ould have held in the s a me circumstances as the defe ndant. ” It defined “ deadly force ” as “ force that is intended or kno wn by th e person using it to cause death or seriou s bodil y injury or f orce that in the ma nner of its use or intended use is capable of causing death or serious b odily injury

. ”
Th e charge also instructed the jury regarding an applicable pr es umption: Under certain circumstances, the law creates a presumptio n that the defendant ’ s belief that the force he used was immediately necessary

— was reasonable. A presumption i s a conclusion the law requires you to reach if certain other facts exist.
Ther efore, you must find the defendant ’ s belief

— that the force he used was im mediately necessary

— was reasonable unless you find the state has proved, beyond a reasonable doubt, at l east one of the f ollowing elements. The elements are that

— 1. the defendant ne ither knew nor had reason to believe that Janet Lester

—

a. was co mmittin g or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, ro b b ery, or aggravate d robbery; or · · 2. the defendant provoked Janet Lester

. If you find the sta te has proved element 1 or 2 listed above, the pr esumpti on does not apply, and you are not required to find that the defendant ’ s belief was reasonable. Whethe r or not the presum ption applies, the state must prov e, beyond a reasonable doubt , that self

- de fense does not apply to this case.12

Buford requested additio nal langu age to be added to this se lf

- defense instruction

. He argued that the charge was missing langu a g e from Penal Code section 9.32 (a)(2)( B) , which provides that a person is justified in using de adly force to the degree immediately necess ary “ to prevent the othe r ’ s imminent commission of aggravated k idnapping, murder, sexual assault, aggravated sexual

as s ault, rob bery, or aggravated robbery. ” See T EX
. P ENAL C ODE § 9.32(a)(2)(B)

. B u ford argued that this la nguage was “ part of th e presumption , but it ’ s also part of the right to self

- defense. ” The trial c ourt question ed, “Is that not unlawful deadly force, mu r der? ”
Buford: I t can be. But the y ’re going t o probably say that the force

that was used against him was not unl awf ul deadly force. . . . That ’s why I need this instruction that he ’s t rying to preven t

— he ’s trying to use it to prevent himself from dying.

. . . Court: I me an, if it were aggrav ated kid napping, sexual assault,

aggravated sexual assault , a r obbery or aggravated robbery would be the all egation of the issue raised under 3, bu t the on ly one potentially would be murder, which is unlawf ul deadly f

o rce. The object ion is overruled. It will be denied. All right. Buford then read into the record the instruction he sought to add to the charge: When a person is attacked with unl awful deadly force w here he reasonab ly believes he is under attack or attem p ted attack with u nl awf ul deadly force, and the re is created in the mind of such a person . . . a reasonable expectation of fear o f death or serious bodily13

injury, then the law excuses o r justi f ies suc h perso n in reso rting to deadly force by any means at h i s command to the degree that he reasonably bel ieves immediately necessary be it from h is standpoint at the time to protect himself from such attac k or attempted attack. It is not nece ss ary that there be an actual attack or attempted attack as a person has a right to defend his life and person from app arent danger as fully and to the same extent as he would had the danger been real, provided that he acted upon a reasonable ap prehension of danger as it a ppeared to him from his standpoint at the time

. . . . I n determining the existence of real or apparent danger, you should consider all the facts and circumstances in evidence before you. . . . Therefore, if you find from the evidence beyond a reason abl e do ubt that the defendant . . . did as alleged, or you fur t her find from the evidence as viewed from the standpoint of the defendant at the time from the wor ds or conduct of

. . . Janet Lester , . . . [o ]r if you have a reasonable doubt as to whe ther or not the defendant was acting in self

- defense on said occasion a nd under said cir cumstances, then you should g ive the defendant the benefit of doub t and say by your verdic t not guilty. . . . C. Analysis Bu ford complains that the trial court erred i n refusing to add the requested additional language regarding apparent dan g er. He cites Hame l v. State , 916 S.W.2d 4 9 1 (Tex. Crim. App. 1996 ) in s upport of h is opinion. In Hamel , the Court of Criminal Appeals recogniz ed that a self

- defense instructi on is a ppropriate when a de fendant reasonably, b ut incorrectly, perceive s danger , stat ing, “ A perso n has the right to defend himself from apparent danger to the same extent as he would if the danger we re r eal. ” I

d. at 493. T he Hamel court held that the app ellant in that14

case was ent itled to a self

- defen se instruction because the eviden c e raised the issu e of self

- defense. See id. at 494. Hamel does not support Bu ford ’ s claim here. A s in Hamel , B uford received a self

- def ense instructio n. The instruction give n by th e trial court properly instructed the jury on self

- defense , statin g t hat B u ford ’ s use of dea dly force against
L ester was not a criminal offense “ if [he] reasonably believed the fo rce used was immediately necessary to protect [him] against [Lester ’ s] use o r attempted use of unlawful deadly force

. ” See T EX
. P ENAL C ODE § 9.31 (a) (p r oviding that pers on is justified in using force against another “when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other ’ s use or attempted use of unlawful force ” ) ; Br a ughton v. State , 569 S.W.3d 592, 6 06 (Tex. Crim. App. 201 8)

. The trial court ’ s jury charge also

co rrectly defin ed reasonable belief as “ a belief that an ordinary and prudent person

w ould have held i n the same circumstances as the defe ndant. ” See T EX
. P ENAL C ODE § 1.07(a)( 4 2) (defining reas onable belief as one “that would be held by an ordinary and prudent man in the same circumstances as the actor ” ). Thus, the jury charge as submitted instruct ed the juror s on all the law applia b le to the case. See Vasquez v. State , 389 S.W

. 3d 361, 366 ( Tex. Crim. App. 2012) (“The purpose of the trial judge ’ s jury charge is to instruct the jurors on all of the law that is applicable to the case.”)

.15

Buford, a rgues, howe ver, that he ought to have received a separate instruction on “ app arent da n ger . ” The Fo r t Worth Cour t of A ppeals addressed a
similar is sue several years ago, stating: Texas courts have held that when a defendant claims self

- defense, his rights a re full y preserved (and the concept of “apparent danger” is properly presente d) when a jury charge (1) states that a defendant ’ s conduct is justif

ied if he reasonably believed that the deceased was using or attempting to use unlawful deadly force against t he defe ndant, and (2) correctly defines “reasonable belief.” Bundy v. State , 280 S.W. 3 d 425, 430 ( T ex. App.

– – Fort Worth 2009, pet. ref ’ d) (citing V alentine v. State , 587 S.W.2d 399, 400

– 01 (Tex. Crim. App. [Panel Op.] 1979)); see also Lowe v. State , 211 S. W.3d 82 1, 824

– 25 (Tex. App.

– – Texarkana 2006, pet. ref ’ d) (stating that requir ements a l so apply to c ases not involving death of the victim). As set out above, the trial court instructed the jury that Buford was justified in using force against another when and to the degree he reasonably believe d the
force was immedia tely necessary to prote c t him against Lester ’ s use or attempted use of unla wful force. T h e charge thus properly instructed the jury as to the first requirement. See Valentine , 587 S.W.2d at 400

– 01; Bun dy , 280 S.W.3d at 430. The
trial court also properly defin ed “reasonable belie f , ” satisf ying the second

r equirement. See Valentine , 587 S.W.2d at 401; Bundy , 280 S.W.3d at 430. Thus, the instruction as given properly allowed the jury to conside r all the ci rcumstances fa cing Buford in determining the reasonablen ess of his belief that the use of de adly16

force was ne cessary under the circumstances he faced , including his apparent danger from Lester ’ s alleged conduct. T he trial court did not err in refusi ng to

s ubmit Buford ’ s additional charge lan guage in jury charge. We overrule Buford ’ s fi rst issue. Exp ert W itness In h is second issue, Bu ford complains that the trial court erred in ex cluding
t he expert testimony of Gutierrez

. A. Standard o f Review We review the tri al court ’ s determination as to the admissibility of expert
te stimony for an ab u se of discret ion. Rhomer v. State , 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). For expert test i mony to be admissible, its proponent must demonstrate by clear and convi nci ng e vid ence that the testimony is sufficiently reliable and relevant to help the jury reach accura t e results. See T EX
. R. E VID . 702; Wolfe v. State , 509 S.W.3d 325, 335 (Tex. Crim. App. 2017 ) (citing Kelly v. State , 824 S.W.2d 568, 572 (Tex. Crim. App. 1992 ))

. T here are three requirements for
the admiss ion of expert testimony: (1) the witn e ss qualifies as an expert by rea son of her knowledge, skill, experience, training, or edu cation; (2) the subject matter of the testimony is an appropriate one for expert test imony; and (3) admitting the expert testimon y will assist the factfinder in decid i ng the case. Rhomer , 569 S.W.3d at 669. These requirements are commonly referred to as (1) qualificati on,17

(2) reliability, and (3) relevance. Id. ; Davis v. State , 329 S.W.3d 798, 813 (Tex

. Crim. App. 2010).
A trial court ’ s ruling on the admissi bility of e x pert testimony will rarely be disturbed on appeal : “ B ecause t he possible spectrum of education, skill, and training is so wide, a trial court has great discretion in determining whether a witnes s possesses sufficient qualifi cations to assist the jury as a n expert on a specific topi c in a particular case.” Rodgers v. State , 205 S.W.3d 525, 527

– 28 (Tex. Crim. App. 2006).
B. Relevant Facts Buford sought to present the testimony of Augustin Gu tie rrez, J r., a lice nsed professional counselor, as an expe rt on victim s of dom estic violence. At a hea ring outside the presence of the jury, Buford presented Gutierrez ’ s qu alifications. Buford intended for Gutier rez to testify to the abuser

- victim dynamic , t he cycl e of
abus e, the impac t of substance ab use on d omestic violenc e , and reactions of abuse

v i ctim s in the context of Buford ’ s relationship with Lester. Buford exp ected that Gutierrez would testify “ from Ms. Le s t er ’ s point of view, the dynamic of an alle ged abu ser, of the control factor and meeting certain hypothetical f a cts. ” Buford stated that G utier rez would testify that some of Lester ’ s behavior was “ part of the control process, that ’ s part of the abuse proc ess and it ’ s exacerbated possibly by this pr o longed drug use of m arijuana

. ” Gutierrez would also address Lester ’ s18

“ self admission of suffer ing r age [as] a very important aspect of her abuse leading up to [the day of the shooting] where she allegedly struck Mr. B uford

. ”
On cross

- examination, Gutierr ez t est ified that he had not questioned or had any interaction with L e ster ’ s family. He wa s n ot awar e that there was s ome testimo ny that Buford had been controlling of Lester or that he would harass Lester when she left their h ome. Gutierrez was likewi se u naware that Buford would
enga ge in verbal abuse tow ard Lester. Gutie r rez knew Buford was an a lc oholi c, but he was unaware that Buford ’ s blood alc ohol content on the day of the shooting w as 2.07. He stated that this info rmation would change his opinion as a n expert, but “ it would be hard for me to tell you to what degree b e c ause, again, I do not ha ve all tha t information. ” The following conversation between the State and Gu tierrez occurred : State: So can you tell us how you can provide testimony that

would be releva nt in th is particular case ? Gu t i errez: I wa s asked

. . . [ to] shed light in to the dy namic of

domestic violence and substance abuse based on the information that I was given by the defense counsel. State: [B]ased on the information that I had g iven you [ about

Buf ord ’s conduct tow ard Lester], would you consider [ Buford] to be a victim of abuse or would he be a perpetrator? Gutierrez: It could

—

there is a strong po ssibility [that he was both the perpetrator and a victim].19

Gutierrez testified that he never s poke with Buford, that he was given information from defen s e counsel, and that he was not pro vided with details regarding some of the underlying information. F or example, he was told about “ an in cident in which the she riff or some law e nforcement came to t he home and [Lester] was asked to leave, by law enforcemen t , ” but he was not given an offense report or any other underlying facts of the situation

. The trial court asked what Gutierrez ’ s specific opinions would be with regard to this case , and B ufor d resp onded that Gutierrez ’ s opinions would address Buford ’ s dem e anor and statements to off icers at the scene of the shooting and his responses to Lester ’ s death. The trial court asked, “ And what is the correlation between that and this case and the de fense ? ” Bu ford testified that it wen t to the

“ apparent danger ” and “ t he mindset of the defenda n t ” that tied in with his defense
of self

- defense. The State objected to Gutierrez ’ s test imony, distinguishing this case from others in which courts ruled that e xpert opin ions on domesti c violence was
admissible : In this c ase, th e re [is] ab solutely no evid ence fro m the defendant or from any witness that there has ever been any kind of violent e p isode. I will let the Court know that we

— given this particular informa tion, we f eel it ’s now relevant to, on rebuttal, off er

— int roduc e evi d ence of an extraneous offe nse rela ted to [Buf ord ] to show his intent in this particular case, where [Buford] had a gun on the table in the

— in the dining room area and followed [Lester] ar ound the h ouse with the gun in the presence of another victim.20 So if there is any evidence of a buse in this particular case, Your Honor, it is the defen d ant as perpetrator, not as a victim. We do not believe that, first off, Mr. G utierrez is quali fied to t estify as an expe rt in the are a of domestic violence, as his practic e is mainly focused on sexu al abuse and substance abuse. Second of all, we do not believe that his testimony would aid a trier in fac t in this particular case in any way, sh ape or form. Bu ford respo nded that Gutierrez ’ s testimo ny was relevant to apparent d a nger and self

- defe nse beca use “ his reaction of self

- defense is based upon his

— what he
appre ciated at the time ” and was “ cru cial ” to his defense.
The trial court found that domestic viole nce is a r ecog nized field of study and that Gutierrez was qu alified t o educate th e j urors on the characteristics of domesti c violence. The trial court also found, how ever, that “ the opinions that are given by the witness in this particular case are not re levant to the issues that are raised in this c ase, and those opinions will not be hel pful to the jurors in reaching a d ecision in this case ” be cause he did not offer any “ opinions co ncerning apparent danger and fear. ” The trial court excluded Gut ierrez fro m testifyi ng. C. Analysis The trial court ruled that Gutierrez was quali f ied as an exper t, and it

ac knowledged that expert testimony on the issue of domestic violence may be admissible under some circumstances

. See, e.g. , Fielder v . S t ate , 756 S.W.2 d 309,
315

– 16, 319

– 21 (Tex. Crim. App. 1 988) (expert testimony concern dynamic s of domestic vio lence were admissible t o “ rehabili tate ” impeached defendant claiming21

self

- defense ); Dixon v. State , 244 S.W.3d 472 , 480 (Tex. App.

— Houston [14 t h Dist.] 2007, pet. ref ’ d) (pol ic e officer trained and experienced in family violence permitted t o testify as exp ert on behavior of victims of family violence) ; Brewer v.
S t ate , 370 S.W.3d 471, 472

– 74 (Tex. App.

— Amarillo 2012, no pet. ) (allowing expert testimony to explain del ay in repo rting abuse)

. The trial court found, however, that Gutie rrez ’ s opi n ion s we re “ not relevant to the issues that [were] raised in this c ase, and those opinions [would] not be helpful to the jurors in reaching a d ecision in this case. ” This finding i s supported by the record and does not constitute an abuse of discretion by t he trial court. See Rhomer , 569 S.W.3d at 669 ; Rodgers , 205 S.W.3d at 527

– 28

. “Relevant evidence is generally admissible, irrelevant evidence is not.” Gonzalez v. State , 544 S.W. 3d 363, 370 (Tex. Crim. App. 2018) (citing T EX
. R.
E VID . 402). “Evidence is r elevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” T EX
. R. E VID . 4 01. “A ‘fact of consequence’ includes either an elemental fact or an evidentiary fact from which an elemental fact can be inferred.” Henley v. State , 493 S.W.3d 77, 84 (Tex. Crim. App. 2016). In the context of e xpert testimony, “ [t] he relevance inquiry is whether evidence ‘will assist the trier of fact’ and is sufficie n tly tied to the facts of the22

case.” Tillma n v. State , 354 S.W.3d 425, 438 (Tex. Crim. App. 2011) (quoting Jordan v. State , 928 S.W.2d 550, 555 (Tex. Crim. App. 1996))

. “ Hence, to be relevant , the expert ‘ must make an effort to tie pertinent facts of the c a se to the scien tific principles which are the subject of his testimony. ’ ” Id.
Here , n othing in the record demonstrated that there was a history of
domestic violence between Buford and L ester . Many witnesses testified that the parties engaged in verbal dis a greements, but there was no evidence of phy sical conflict between the parties prior to the day of the shooting aside from Buford bumping into Lester while he was drunk

. Buford tes tified that Lester directed verb al abuse toward hi m, but he also testified t h at he was able to leave the house or take a drive i n his truck when she did so. The evidence suggested that Buford also directed ve rbal a bused toward Lester. Gutierrez was not awa re of the u nderlying facts involving the mutual verbal altercations and had n ot spoke n with Buford or

w ith anyone who had first

- hand knowledge o f Buford and Lester ’ s relationship. Thus, the record establishes facts from which the trial court prope rly

exer cised its d iscretion in excluding Gutierrez ’ s testimony under the general ru l es of relevancy

. See Cox v. State , 843 S.W. 2d 750 , 754 (Tex. App.

— El Paso 1992, pet. ref ’ d ) (excluding expert testimony on “ battered s pouse syndr ome ” under general relevancy rules ) . None of Gutierrez ’ s expert opinions could have tied pertinent facts of th e case to the pr i nciples of the cycle of abuse or abuser

- victim23

dynamic s between Lester and Buf ord in a way that would h ave assisted the jury in reaching a verdict

. See Tillman , 35 4 S.W.3d at 438. And, as the trial court observed, nothing about Gutierrez ’ s opinions w ould have been able to address whether Buford ’ s perception of apparent danger and fear of Lester was reasonable under the circumstances , because Gutierre z him self testif ied that he was not aware of the underlying circumstances and that he had on l y generalized k nowledge based on hypothe tical facts

. Buford was required to prove by clear and convincing evidence t hat Gutierrez ’ s testimony was relevant to help ing the jury reac h accura te results. See
T EX
. R. E VID . 702; Wolfe , 509 S.W.3d at 335

. He fail e d to mee t this standard. We overrule Buford ’ s second issue. Conclusion We affirm the judgment of the trial court

.

Richa rd Hightower Justice Panel consists of Jus tices K eyes , Lloyd, and Hightower.
P ublish. T EX
. R. A PP
. P. 47.2(b).