NO. 07-09-00138-CR 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL A 

JUNE 7, 2010 

DAVID RUFUS BUTLER, APPELLANT 

v. 

THE STATE OF TEXAS, APPELLEE 

 FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY; 

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

Before CAMPBELL and HANCOCK and PIRTLE, JJ. 

MEMORANDUM OPINION 

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

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

the Texas Department of Criminal Justice. We affirm. 

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1 See TEX. PENAL CODE ANN. § 30.02 (Vernon 2003). 
2 

Background 

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

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

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

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

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

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

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

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

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

the apartment. 

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

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

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

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

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

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

been assaulted. 

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

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

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

Thompson spoke to Olivares, she noticed that Olivares had a black eye, red marks on 
3 

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

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

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

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

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

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

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

 crawled through the 

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

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

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

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

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

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

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

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

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

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

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

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

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2 Nothing in the record recounting this conversation between Thomas and 

Olivares indicates that Olivares ever specifically identified appellant as being the 

assailant. All of Thomas’s testimony at trial referred to “the suspect.” 
4 

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

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

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

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

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

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

appellant to fifty years incarceration. 

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

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

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

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

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

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

The Charged Offense 

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

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

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

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

to commit an assault. See id. at § 30.02(a)(1). 
5 

Extraneous Offense Evidence 

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

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

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

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

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

TEX. R. EVID. 403, 404(b).3

 However, appellant’s issue on appeal is limited to his Rule 

403 objection.4

Standard of Review

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

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

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

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

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

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

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

(Tex.Crim.App. 1996). 

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3 Further references to the Texas Rules of Evidence will be by reference to “Rule 

___.” 

4

 While the State contends that appellant waived his objection to this evidence 

by, later in the trial, stating that he had “no objection” to the admission of the complaint 

that was filed relating to the October 2, 2008 incident, for purposes of this opinion, we 

will assume, without deciding, that appellant did not waive his objection.
6 

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

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

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

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

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

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

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

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

S.W.2d at 379). 

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

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

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

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

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

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

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

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

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

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

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

S.W.3d 870, 880 (Tex.Crim.App. 2007). 
7 

Analysis

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

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

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

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

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

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

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

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

jury why appellant and Olivares were having the confrontation. 

 Evidence was presented that appellant sought admission into the apartment on 

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

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

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

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

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

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

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

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

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

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

accused. Wheeler v. State, 67 S.W.3d 879, 886 n.18 (Tex.Crim.App. 2002) (quoting 
8 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

an instruction as given). 

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

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

Rule 403 objection. Consequently, we overrule appellant’s third issue. 
9 

Necessity Instruction 

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

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

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

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

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

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

actions were necessary to avoid imminent harm. 

Standard of Review

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

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

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

resulted from the error to require reversal. Id. 

Analysis

 Necessity justifies criminal conduct if: 

(1) the actor reasonably believes the conduct is immediately necessary to 

avoid imminent harm; 

(2) the desirability and urgency of avoiding the harm clearly outweigh, 

according to ordinary standards of reasonableness, the harm sought to be 

prevented by the law proscribing the conduct; and 

(3) a legislative purpose to exclude the justification claimed for the conduct 

does not otherwise plainly appear. 
10 

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

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

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

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

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

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

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

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

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

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

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

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

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

he was charged, burglary of a habitation. Appellant did not testify during the guiltinnocence phase of trial. See Maldonado v. State, 902 S.W.2d 708, 712 (Tex.App.—El 

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

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

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

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

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

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

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

the offense of burglary of a habitation, appellant was not entitled to a necessity 
11 

instruction. See Juarez, 2010 Tex.Crim.App. LEXIS 179, at *21. Since appellant was 

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

request for an instruction on the defense of necessity. 

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

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

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

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

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

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

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

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

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

33.1(a)(1). 

We overrule appellant’s second issue. 

Factual Sufficiency 

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

to support appellant’s conviction for burglary of a habitation.5

 By this issue, appellant’s 

________________________ 

5 Appellant presents one conclusory statement that might be interpreted as a 

challenge to the legal sufficiency of the evidence. However, appellant’s issue is framed 

solely as a challenge to the factual sufficiency of the evidence and his prayer requests 

only that the judgment be reversed and remanded for new trial. See Clewis v. State, 

922 S.W.2d 126, 133-34 (Tex.Crim.App. 1996) (remedy for legally insufficient evidence 
12 

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

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

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

to support his conviction for burglary of a habitation. 

Standard of Review

 When an appellant challenges the factual sufficiency of the evidence supporting 

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

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

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

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

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

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

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

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

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

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

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

_________________________ 

is acquittal, while remedy for factually insufficient evidence is remand for new trial). 

Thus, we will limit our review of appellant’s issue to whether the evidence was factually 

sufficient to support the conviction.
13 

Analysis

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

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

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

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

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

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

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

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

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

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

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

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

window and entered the apartment. 

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

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

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

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

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

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

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

evidence that appellant had previously assaulted Olivares, was angry with Olivares 
14 

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

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

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

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

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

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

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

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

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

assault. 

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

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

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

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

appellant’s first issue. 

Conclusion 

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

court. 

 Mackey K. Hancock 

 Justice 

Do not publish.