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; HONORABL E HAL MINER, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION Appellant, David Rufus Butler , appeals his conviction fo r the offense of burglary of a habitation 1 and sentence of fifty years incarcerat ion in the Institutional Division of the Texas Department of Crimi nal Justice. We affirm.

________________________
1 See T EX

. P ENAL C ODE A NN . § 30.02 (Vernon 2003).2 Background Around 8:00 p.m. on November 16, 2008, appell ant 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 pol e 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 apartmen t, and began knocking on the door while yelling obscenities at the o ccupant of the apartment, Cher ice Olivares, and requesting that he be admitted into the apartment. Olivares did not invite appellant into the apartment. When Olivares refused to allo w 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 en try into the apartment were rebuffed, appellant broke out the front window of t he 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 ex ited the apartment thr ough 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. Oliv ares 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 Olivar es through the broken window. When Thompson spoke to Olivares, sh e noticed that Olivares had a black eye, red marks on3 her person, and kept placing her hand on the back of her head. Olivares told Thompson that her boyfri end, 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 Po lice 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 to ld 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 t he front door. Thomas indicated that Olivares had blood on her arm and hand, a lace ration on her elbow, and a black eye. Subsequently, appellant was charged by in dictment with the offense of burglary of a habitation, enhanced by two prior felony convictions. Appellant pleaded not guilty, and trial was commenced. During trial, appell ant 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 assi sting Olivares. To refute this defensive theory and to provide context for the Stat e’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 t he October incident u nder Rules 404(b) and 403 of the Texas Rules of Eviden ce, but the trial court overru led the objections. At the

________________________ 2 Nothing in the record recounting th is conversation between Thomas and Olivares indicates that Oliv ares ever specifically ident ified 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 nec essity, 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, w ho found appellant guilty of burglary of a habitation. Following presentation of ev idence on punishment, the jury sentenced appellant to fifty years incarceration. By three issues, appellant appeals. By hi s first issue, appellant contends that the evidence was factually insufficient to suppor t appellant’s conviction for burglary of a habitation. By his second issue, appellant cont ends that the trial cour t erred in refusing to include a necessity instruction in the ju ry charge. By his third issue, appellant contends that the trial court erred in adm itting 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 T EX

. P ENAL C ODE A NN . § 30.02(a); however, as applicable to this case, the St ate was required to prove that appellant entered the habitation of Olivar es, 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 a lleged to have committed against Olivares on October 2, 2008. When the State offered evidence of this alleged assault, appellant objected that it was impermi ssible evidence of characte r conformity and that its probative value was substantially outweighed by the danger of unfair prejudice. See T EX

. R. E VID . 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 discret ion is whether the trial court acted without refe rence 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 shoul d not reverse a trial judge = s decision whose ruling was within the zone of reasonable di sagreement. Green v. State , 934 S.W.2d 92, 102 (Tex.Crim.App. 1996).

________________________ 3 Further references to the Texas Rules of Evidence will be by reference to “Rule ___.”

4 While the State contends t hat appellant waived his obj ection 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 t he October 2, 2008 incident, for pur poses of this opinion, we will assume, without deciding, that appe llant did not waive his objection.6 Rule 403 provides that, “[a]lthough re levant, 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 us e of the word “may” in Rule 403 reflects an intent that the tr ial judge be given very substantial discretion in balancing probative value and unfair prejudice and t hat 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 evidenc e with the danger of unfair pr ejudice, 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 probat ive force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any t endency of the evidence to suggest decision on an improper basis, (4) any tendency of the eviden ce 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 likelihoo d that presentation of t he evidence will consume an inordinate amount of time or re peat 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 Oliv ares on October 2, 2008. Appellant contends that the on ly 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 o ffense was not germane to the jury’s understanding of the case. Th e State responds that the prior assault was relevant evidence of appellant’s intent to assault O livares in the apartment, an element of the offense as charged, and was contextual evidenc e that was necessary to explain to the jury why appellant and Olivares were having the confrontation. Evidence was presented t hat appellant sought admissi on into the apartment on November 16, 2008, to attempt to persuade O livares to ask the prosecutors to dismiss the criminal complaint filed against him bas ed on the October incident. Thus, evidence that charges had been filed against appellant based on a prior incident between appellant and Olivares was rele vant to establish the contex t for the events of November 16. In this respect, the evidence of the prio r incident clarified t he jury’s understanding of the events of November 16, ra ther 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 ac ts or offenses allegedly committed by the accused has been held admissible to r ebut a defensive theory raised by the accused. Wheeler v. State , 67 S.W.3d 879, 886 n.18 (Tex.Crim.App. 2002) (quoting8 Albrecht v. State , 486 S.W.2d 97, 101 (Tex.Crim.A pp. 1972)). Further, when an accused challenges an element of the offense requiring proof of intent, admission of extraneous offense evidence can help prove in tent if the requir ed intent cannot be inferred from the act itself or if the accus ed presents evidence to r ebut the inference that the required intent exist ed. 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 t he apartment and that the State had a significant need for this evidence to rebut appell ant’s defensive theory that he entered the apartment to help O livares. Further, we note t hat the presentation of the evidence regarding the October incident did not take a signi ficant 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 decisio n on an improper basis. Finally , the possibility that the jury would use the evidence of an extr aneous offense for an improper purpose was greatly lessened by the trial court’s jury charge instruction r egarding 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 Oc tober incident in light of the Casey factors, we cannot say that the trial court abused its discret ion 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 prev ent an immediate suicide attempt by Olivares, and, as such, the tria l 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 becaus e he did not admit that he committed each element of the charged offense and the ev idence did not estab lish that appellant’s actions were necessary to avoid imminent harm.

Standard of Review

Review of a claim of char ge error starts with a determi nation of whether the trial court committed error. See Mann v. State , 964 S.W.2d 639, 641 (T ex.Crim.App. 1998). If error is found, then the reviewing cour t 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 c onduct 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 t he justification claimed for the conduct does not otherwise plainly appear.10 T EX

. P ENAL C ODE A NN . § 9.22 (Vernon 2003). Conduct is defined as “an act or omission and its accompanying mental state.” T EX

. P ENAL C ODE A NN . § 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 wit hout 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 doctri ne applies to the necessity defense and, therefore, a defendant must admit to the c onduct of the charged offense, both the act and culpable mental state, to be entitl ed 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 no t 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 di d not testify during the guilt -innocence phase of trial. His failure to do so or to otherwise admit hi s 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 m ental 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, appel lant was not entitled to a necessity11 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 entitl ed to a defensive instruction does not apply when t he defensive issue, by its terms , negates the culpable mental state. See id . at *7. While appellant’s defensive ev idence regarding his belief that he needed to break into Olivares’s apartment to protect Olivar es was likely sufficient to entitle him to a jury instru ction on mistake of fact, see T EX

. P ENAL C ODE A NN . § 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 m ental state), he did not reques t such a jury instruction from the trial court an d does not present that argument on appeal. See T EX

. R. A PP

. P. 33.1(a)(1). We overrule appellant’s second issue. Factual Sufficiency By his first issue, appellant contends t hat the evidence was factually insufficient to support appellant’s convicti on for burglary of a habitation. 5 By this issue, appellant’s

________________________ 5 Appellant presents one conclusory statem ent that might be interpreted as a challenge to the legal sufficien cy of the evidence. However, appellant’s issue is framed solely as a challenge to the factual suffici ency of the evidence an d 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 evidence12 main arguments are that he had the effective consent of O livares when he entered the apartment and that, because Olivares testifi ed 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 det ermine whether, consider ing all the evidence in a neutral light, the jury was rationally justif ied in finding the appe llant 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 ther e is some objective basis in the record demonstrating that the great weight and pr eponderance of the evi dence contradicts the jury’s verdict. See id . Additionally, an appellate opin ion addressing factual sufficiency must include a discussion of the most important evidence t hat appellant claims undermines the jury’s verd ict. Sims v. State , 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

_________________________ is acquittal, while remedy fo r factually insufficient evidenc e is remand for new trial). Thus, we will limit our review of appellant’s issue to whet her 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 s he was not shocked w hen appellant arrive d 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 Oliv ares expected appellant’s arrival at the apartment has no bearing on whether she consented to hi s entry into the apartment, especially in light of Olivar es’s testimony that she did not expressly consent to his entering the apartment. Further, because O livares was unable to open the front door, her actions in no way implie d that appellant had consent to enter the apartment. Further, appellant’s actions in hitting and ki cking 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 suffi cient to allow the jury to ra tionally 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 a ssault 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 a nd 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 a ssaulted. Additionally, the jury heard evidence that appellant had prev iously assaulted Olivares, was angry with Olivares14 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 c harges. Finally, the totality of the evidence strongly preponderates in favor of appellant’s being at th e apartment in an attempt to scare or force Olivares to pur sue having the prior as sault charges against appellant dropped, rather than ou t 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 cr edibility 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 enter ed 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 w hether appellant enter ed Olivares’s apartment, were not disputed at trial or on appeal, we conclude t hat the evidence was fa ctually 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 i ssues, we affirm the j udgment of the trial court. Mackey K. Hancock Justice Do not publish.