Robert Thomas Buford v. State ( 2020 )

Opinion issued April 30, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-01134-CR
———————————
ROBERT THOMAS BUFORD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 12th District Court
Grimes County, Texas
Trial Court Case No. 18256
OPINION
A jury convicted appellant, Robert Thomas Buford, of murder and assessed
his punishment at 30 years’ imprisonment.1 In two issues on appeal, Buford argues
that (1) the trial court erred in denying his request to include additional language in
1
See TEX. PENAL CODE § 19.02(b)(1).
the jury charge’s instructions on self-defense; and (2) the trial court erred in
excluding Buford’s expert witness, Augustin Gutierrez, Jr.
Because we conclude that the trial court adequately charged the jury on the
issue of self-defense and that Gutierrez’s opinions were not relevant to the issues
before the jury, we affirm.
Background
In February 2017, Buford was living with the complainant, Janet Lester, and
they had had a tumultuous 17-year relationship. Buford, who was 6’4’’ and
weighed approximately 245 pounds, was a heavy drinker. Lester, who was 5’0’’
and weighed less that 80 pounds, used marijuana. They were both in their mid-70s.
Lester’s best friend, Claudia Greenhouse, described Lester and Buford’s
relationship as “snipey,” stating that “[t]hey were always kind of saying little side
comments back and forth.” She further stated that Lester “was not happy” when
Buford was intoxicated, which was “[j]ust about every time [she’d] ever seen
[him].” When he had been drinking, Buford was “[b]elligerent, 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, complain quite a bit,” especially
about Buford’s drinking.
Greenhouse testified that she observed physical conflict between them twice,
stating Buford would “bump” into Lester when he was intoxicated and because of
2
her “tiny” size, “it would knock her into a chair.” Lester would “push him back and
he might push her back.” Greenhouse had never seen them strike each other. In the
last year, Greenhouse noticed that Lester was increasingly unhappy: “She didn’t
laugh as much. She was a little bit more withdrawn. Her stress level was higher.
She wouldn’t eat as much. She was upset a lot more.” Buford remained the same as
he had been, but he was “[a] bit more antagonistic. The words that [they] said to
each other were meaner, crueler.” He also became increasingly “paranoid” about
Lester and “would accuse her of seeing other people or stealing things.”
Debbie Sweet, Lester’s sister, likewise testified that Lester did not like to be
at home because Buford was “always very verbally abusive and he was always
drunk, always.” When he was drunk, he “was very obnoxious” and “called [Lester]
names.” She would argue back with him. Sweet observed only verbal arguments
between Lester and Buford.
Buford’s sister, Frankie Milley, also testified regarding the relationship
between Buford and Lester. She testified that Buford was not violent, but he drank
daily. She testified that he was not mean when he was drunk; he was “silly” and
wanted to “reminisce about childhood.” Milley testified that Buford’s relationship
with Lester “wasn’t nice.” Lester was “always just putting [Buford] down” and
“never had anything nice to say about him, ever.” On occasion, Lester would call
Milley while she was fighting with Buford. Milley testified that Lester would
3
scream and cuss, that she made threats, such as stating, “I’m going to take a
baseball bat to his head and kill him.” Milley stated that these comments “really
frightened” her because she “really thought [Lester] would do something to him.”
Milley testified that she would tell Lester that she “just need[ed] to leave” if she
was so unhappy. Lester told her, “I’ll kill his ass before I end up giving him a dime
out of this house.”
On February 10, 2017, Buford began the day by purchasing alcohol and
drinking with a friend. Sometime around 4:00 p.m., Lester informed her friend and
her sister that Buford had returned home and was drunk. Buford and Lester
eventually had an altercation, and Buford shot Lester, killing her.
At trial, conflicting evidence was presented regarding the altercation that
occurred at the time of the shooting. The State presented evidence that after she
was shot, Lester called 9-1-1 and told the dispatcher, “He shot me,” before
becoming unresponsive. Sergeant B. Baldobino was dispatched to the scene and
activated his body camera. The video was admitted at trial, along with his
testimony. When he arrived at Buford and Lester’s home, Sergeant Baldobino saw
Lester on the front porch with a bullet wound and in “obvious medical distress.”
He saw Buford lying on the floor inside the house. He asked Buford what had
happened, and Buford stated, “I shot her.” Sergeant Baldobino secured the scene
and found the firearm in a bedroom. Sergeant Baldobino then returned to Buford,
4
noting that he was still on the floor, with an icepack, napkins, a set of dentures, and
“what appeared to be a spent projectile” on the floor next to him. He also saw that
Buford had a head wound, which he described as “a goose egg on his forehead”
with a “small abrasion,” but the injury did not appear to be life threatening.
Keeping his eye on Buford, Sergeant Baldobino returned to the porch to check on
Lester, who was no longer breathing and had lost a lot of blood. At this time, other
law enforcement personnel arrived, including Constable B. Jarvis.
Buford refused medical treatment from the emergency medical personnel.
He needed help getting from the floor to a nearby chair and was “being very
uncooperative with medical personnel and all officer personnel.” Sergeant
Baldobino stated that “there was a heavy odor of alcoholic beverage emitting from
[Buford’s] person,” and he believed Buford was “under the influence of alcohol.”
Buford made several statements to officers at the scene, prior to being taken
into custody. Sergeant Baldobino testified that Buford appeared “disoriented and
very uncooperative with the questions initially.” Buford told Constable Jarvis that
he had shot Lester. Buford told Constable Jarvis that there had never been any
physical altercations in his relationship with Lester, but they did not get along well
and would have verbal altercations and “cussed each other.” Regarding the
circumstances 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.
5
Buford told Constable Jarvis that he “drank something in the house” and became
“immobile” to the point that he fell on the floor and was crawling because he could
not get up. Buford stated that he hit his head on the table, then “wound up crawling
to his bedroom to retrieve a gun.” Buford told Jarvis that, as he crawled, Lester
“was riding 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 established that Buford shot Lester from below, consistent with him being
on the ground and her standing. Ballistic testing also established that Lester had to
have been standing at least three feet away from Buford when he shot her.
Buford also spoke with his sister, Milley, while he was being held in jail.
Recordings of those conversations were admitted into evidence, and Milley
testified about them as well. Buford told her that his injuries were sustained when
he fell multiple times and that his head injury specifically was the result of a fall.
He told Milley that Lester was berating him for not being 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 hit his head on the door jam. Buford also told Milley
that he got the gun out of the drawer in his bedroom to scare Lester.
Buford presented evidence that Lester abused marijuana. Her doctor
reported that, in the weeks leading up to the shooting, she had complained about
feeling jittery, having night sweats, and experiencing “rage,” possibly as a side
6
effect of medications she was taking to treat medical conditions, including
emphysema. Buford himself testified that his relationship with Lester was difficult
and that she was frequently angry. He testified that he never physically 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 testified that “[i]t’s always
something different” and “[t]here was no winning.” He described “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 face expressions,
she’d get up in my face and it looked like she was ready to hurt me
some kind of way. And I just—it was no use of standing there. I’d just
have to go. You know, it was a lot of no-win situation 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 walk around the yard.
In his trial testimony, Buford admitted shooting Lester, and he testified that,
at the time of the shooting, Lester began cussing at him and then left the room.
Buford stated that he fell due to medical issues. He testified that when he fell and
could not get up, he was “hurt” and “embarrassed” that he could not get up to leave
and get away from Lester’s cussing like he usually did. As he was trying to get
himself off the floor and onto his bed, he felt a blow to the left side of his head,
ended up back on the floor, and noticed Lester at the door of his bedroom. Buford
testified that Lester kicked him, cursed and screamed at him, and told him, “I ought
7
to kill your ass.” He warned her to leave him alone, but she did not stop. He
cocked his pistol, and eventually shot her because he feared for his life.
Buford sought to present the testimony of Augustin Gutierrez, Jr., a licensed
professional counselor, as an expert on victims of domestic violence. The trial
court ruled, however, that Gutierrez’s testimony was not relevant and excluded it.
The trial court ultimately submitted an instruction on self-defense to the
jury. Buford wanted additional language to address “apparent danger,” arguing that
the jury needed to be instructed that he was entitled to use deadly force when and
to the degree necessary to prevent what he perceived as Lester’s attempt to murder
him. The trial court included standard instructions on self-defense, reasonable
belief, and deadly force, but it overruled Buford’s request for any additional
language in the charge.
The jury found against Buford on the issue of self-defense and convicted
him of murder. This appeal followed.
Charge Error
In his first issue, Buford argues that the trial court erred in rejecting his
request to include additional language regarding the right to use deadly force and
apparent danger in the jury charge.
8
A. Standard of Review
“[A]ll alleged jury-charge error must be considered on appellate review
regardless of preservation in the trial court.” Kirsch 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 review alleged jury-charge error). In
our review of a jury charge, we first determine whether error occurred; if not, our
analysis ends. Kirsch, 357 S.W.3d at 649. If error occurred, whether it was
preserved then determines the degree of harm required for reversal. Id. When, as
here, the defendant has properly objected to the error in the charge, reversal is
required unless the error was harmless. Ngo, 175 S.W.3d at 743.
Trial courts must “deliver to the jury . . . a written charge distinctly setting
forth the law applicable to the case[.]” TEX. CODE CRIM. PROC. 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 the jury. Reynolds
v. State, 371 S.W.3d 511, 521 (Tex. App.—Houston [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 some evidence, from any source,
on each element of the defense that, if believed by the jury, would support a
rational inference that each element is true. Id. at 521–22; Shaw v. State, 243
S.W.3d 647, 657–58 (Tex. Crim. App. 2007); see also TEX. PENAL CODE § 2.03(c)
9
(“The issue of the 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 evidence
in the light most favorable to the defendant’s requested submission. Reynolds, 371
S.W.3d at 522 (citing Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App.
2006), and Love v. State, 199 S.W.3d 447, 455 (Tex. App.—Houston [1st Dist.]
2006, pet. ref’d)).
B. Relevant Facts
The charge stated, in relevant part,
You have heard evidence that, when [Buford] . . . committed an act
clearly dangerous to human life with intent to cause serious bodily
injury to an individual, namely, Janet Lester, by shooting Janet Lester
with a firearm, he believed his use of force was necessary to defend
himself against Janet Lester’s use or attempted use of unlawful deadly
force.
Relevant Statutes
A person’s use of deadly force against another that would
otherwise constitute the crime of murder is not a criminal offense if
the person reasonably believed the force used was immediately
necessary to protect the person against the other’s use or attempted
use of unlawful deadly force.
Self-defense does not cover conduct in response to verbal
provocation alone. The defendant must have reasonably believed the
other person had done more than verbally provoke the defendant.
10
The charge defined “reasonable belief” as “a belief that an ordinary and
prudent person would have held in the same circumstances as the defendant.” It
defined “deadly force” as “force that is intended or known by the person using it to
cause death or serious bodily injury or force that in the manner of its use or
intended use is capable of causing death or serious bodily injury.”
The charge also instructed the jury regarding an applicable presumption:
Under certain circumstances, the law creates a presumption that the
defendant’s belief that the force he used was immediately necessary—
was reasonable. A presumption is a conclusion the law requires you to
reach if certain other facts exist.
Therefore, you must find the defendant’s belief—that the force
he used was immediately necessary—was reasonable unless you find
the state has proved, beyond a reasonable doubt, at least one of the
following elements. The elements are that—
1. the defendant neither knew nor had reason to believe that
Janet Lester—
a. was committing or attempting to commit aggravated
kidnapping, murder, sexual assault, aggravated sexual
assault, robbery, or aggravated robbery; or · ·
2. the defendant provoked Janet Lester.
If you find the state has proved element 1 or 2 listed above, the
presumption does not apply, and you are not required to find that the
defendant’s belief was reasonable.
Whether or not the presumption applies, the state must prove,
beyond a reasonable doubt, that self-defense does not apply to this
case.
11
Buford requested additional language to be added to this self-defense
instruction. He argued that the charge was missing language from Penal Code
section 9.32(a)(2)(B), which provides that a person is justified in using deadly
force to the degree immediately necessary “to prevent the other’s imminent
commission of aggravated kidnapping, murder, sexual assault, aggravated sexual
assault, robbery, or aggravated robbery.” See TEX. PENAL CODE § 9.32(a)(2)(B).
Buford argued that this language was “part of the presumption, but it’s also part of
the right to self-defense.”
The trial court questioned, “Is that not unlawful deadly force, murder?”
Buford: It can be. But they’re going to probably say that the force
that was used against him was not unlawful deadly force.
. . . That’s why I need this instruction that he’s trying to
prevent—he’s trying to use it to prevent himself from
dying. . . .
Court: I mean, if it were aggravated kidnapping, sexual assault,
aggravated sexual assault, a robbery or aggravated
robbery would be the allegation of the issue raised under
3, but the only one potentially would be murder, which is
unlawful deadly force.
The objection 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 unlawful deadly force where he
reasonably believes he is under attack or attempted attack with
unlawful deadly force, and there is created in the mind of such a
person . . . a reasonable expectation of fear of death or serious bodily
12
injury, then the law excuses or justifies such person in resorting to
deadly force by any means at his command to the degree that he
reasonably believes immediately necessary be it from his standpoint at
the time to protect himself from such attack or attempted attack.
It is not necessary that there be an actual attack or attempted
attack as a person has a right to defend his life and person from
apparent danger as fully and to the same extent as he would had the
danger been real, provided that he acted upon a reasonable
apprehension of danger as it appeared to him from his standpoint at
the time. . . .
In 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 reasonable
doubt that the defendant . . . did as alleged, or you further find from
the evidence as viewed from the standpoint of the defendant at the
time from the words or conduct of. . . Janet Lester, . . . [o]r if you have
a reasonable doubt as to whether or not the defendant was acting in
self-defense on said occasion and under said circumstances, then you
should give the defendant the benefit of doubt and say by your verdict
not guilty. . . .
C. Analysis
Buford complains that the trial court erred in refusing to add the requested
additional language regarding apparent danger. He cites Hamel v. State, 916
S.W.2d 491 (Tex. Crim. App. 1996) in support of his opinion. In Hamel, the Court
of Criminal Appeals recognized that a self-defense instruction is appropriate when
a defendant reasonably, but incorrectly, perceives danger, stating, “A person has
the right to defend himself from apparent danger to the same extent as he would if
the danger were real.” Id. at 493. The Hamel court held that the appellant in that
13
case was entitled to a self-defense instruction because the evidence raised the issue
of self-defense. See id. at 494.
Hamel does not support Buford’s claim here. As in Hamel, Buford received
a self-defense instruction. The instruction given by the trial court properly
instructed the jury on self-defense, stating that Buford’s use of deadly force against
Lester was not a criminal offense “if [he] reasonably believed the force used was
immediately necessary to protect [him] against [Lester’s] use or attempted use of
unlawful deadly force.” See TEX. PENAL CODE § 9.31(a) (providing that person 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”); Braughton v. State, 569
S.W.3d 592, 606 (Tex. Crim. App. 2018). The trial court’s jury charge also
correctly defined reasonable belief as “a belief that an ordinary and prudent person
would have held in the same circumstances as the defendant.” See TEX. PENAL
CODE § 1.07(a)(42) (defining reasonable 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 instructed the jurors on all the law appliable 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.”).
14
Buford, argues, however, that he ought to have received a separate
instruction on “apparent danger.” The Fort Worth Court of Appeals addressed a
similar issue several years ago, stating:
Texas courts have held that when a defendant claims self-defense, his
rights are fully preserved (and the concept of “apparent danger” is
properly presented) when a jury charge (1) states that a defendant’s
conduct is justified if he reasonably believed that the deceased was
using or attempting to use unlawful deadly force against the
defendant, and (2) correctly defines “reasonable belief.”
Bundy v. State, 280 S.W.3d 425, 430 (Tex. App.––Fort Worth 2009, pet. ref’d)
(citing Valentine v. State, 587 S.W.2d 399, 400–01 (Tex. Crim. App. [Panel Op.]
1979)); see also Lowe v. State, 211 S.W.3d 821, 824–25 (Tex. App.––Texarkana
2006, pet. ref’d) (stating that requirements also apply to cases 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 believed the
force was immediately necessary to protect him against Lester’s use or attempted
use of unlawful force. The charge thus properly instructed the jury as to the first
requirement. See Valentine, 587 S.W.2d at 400–01; Bundy, 280 S.W.3d at 430. The
trial court also properly defined “reasonable belief,” satisfying the second
requirement. 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 consider all the circumstances
facing Buford in determining the reasonableness of his belief that the use of deadly
15
force was necessary under the circumstances he faced, including his apparent
danger from Lester’s alleged conduct. The trial court did not err in refusing to
submit Buford’s additional charge language in jury charge.
We overrule Buford’s first issue.
Expert Witness
In his second issue, Buford complains that the trial court erred in excluding
the expert testimony of Gutierrez.
A. Standard of Review
We review the trial court’s determination as to the admissibility of expert
testimony for an abuse of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex.
Crim. App. 2019). For expert testimony to be admissible, its proponent must
demonstrate by clear and convincing evidence that the testimony is sufficiently
reliable and relevant to help the jury reach accurate results. See TEX. R. EVID. 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)). There are three requirements for
the admission of expert testimony: (1) the witness qualifies as an expert by reason
of her knowledge, skill, experience, training, or education; (2) the subject matter of
the testimony is an appropriate one for expert testimony; and (3) admitting the
expert testimony will assist the factfinder in deciding the case. Rhomer, 569
S.W.3d at 669. These requirements are commonly referred to as (1) qualification,
16
(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 admissibility of expert testimony will rarely be
disturbed on appeal: “Because the possible spectrum of education, skill, and
training is so wide, a trial court has great discretion in determining whether a
witness possesses sufficient qualifications to assist the jury as an expert on a
specific topic 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 Gutierrez, Jr., a licensed
professional counselor, as an expert on victims of domestic violence. At a hearing
outside the presence of the jury, Buford presented Gutierrez’s qualifications.
Buford intended for Gutierrez to testify to the abuser-victim dynamic, the cycle of
abuse, the impact of substance abuse on domestic violence, and reactions of abuse
victims in the context of Buford’s relationship with Lester. Buford expected that
Gutierrez would testify “from Ms. Lester’s point of view, the dynamic of an
alleged abuser, of the control factor and meeting certain hypothetical facts.”
Buford stated that Gutierrez would testify that some of Lester’s behavior was “part
of the control process, that’s part of the abuse process and it’s exacerbated possibly
by this prolonged drug use of marijuana.” Gutierrez would also address Lester’s
17
“self admission of suffering rage [as] a very important aspect of her abuse leading
up to [the day of the shooting] where she allegedly struck Mr. Buford.”
On cross-examination, Gutierrez testified that he had not questioned or had
any interaction with Lester’s family. He was not aware that there was some
testimony that Buford had been controlling of Lester or that he would harass Lester
when she left their home. Gutierrez was likewise unaware that Buford would
engage in verbal abuse toward Lester. Gutierrez knew Buford was an alcoholic, but
he was unaware that Buford’s blood alcohol content on the day of the shooting was
2.07. He stated that this information would change his opinion as an expert, but “it
would be hard for me to tell you to what degree because, again, I do not have all
that information.” The following conversation between the State and Gutierrez
occurred:
State: So can you tell us how you can provide testimony that
would be relevant in this particular case?
Gutierrez: I was asked . . . [to] shed light into the dynamic 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 given you [about
Buford’s conduct toward Lester], would you consider
[Buford] to be a victim of abuse or would he be a
perpetrator?
Gutierrez: It could—there is a strong possibility [that he was both
the perpetrator and a victim].
18
Gutierrez testified that he never spoke with Buford, that he was given
information from defense counsel, and that he was not provided with details
regarding some of the underlying information. For example, he was told about “an
incident in which the sheriff or some law enforcement came to the home and
[Lester] was asked to leave, by law enforcement,” 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 Buford responded that Gutierrez’s opinions would address
Buford’s demeanor and statements to officers 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 defense?” Buford testified that it went to the
“apparent danger” and “the mindset of the defendant” that tied in with his defense
of self-defense.
The State objected to Gutierrez’s testimony, distinguishing this case from
others in which courts ruled that expert opinions on domestic violence was
admissible:
In this case, there [is] absolutely no evidence from the defendant or
from any witness that there has ever been any kind of violent episode.
I will let the Court know that we—given this particular information,
we feel it’s now relevant to, on rebuttal, offer—introduce evidence of
an extraneous offense related to [Buford] 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] around the house with the gun
in the presence of another victim.
19
So if there is any evidence of abuse in this particular case, Your
Honor, it is the defendant as perpetrator, not as a victim.
We do not believe that, first off, Mr. Gutierrez is qualified to
testify as an expert in the area of domestic violence, as his practice is
mainly focused on sexual abuse and substance abuse.
Second of all, we do not believe that his testimony would aid a
trier in fact in this particular case in any way, shape or form.
Buford responded that Gutierrez’s testimony was relevant to apparent danger and
self-defense because “his reaction of self-defense is based upon his—what he
appreciated at the time” and was “crucial” to his defense.
The trial court found that domestic violence is a recognized field of study
and that Gutierrez was qualified to educate the jurors on the characteristics of
domestic violence. The trial court also found, however, that “the opinions that are
given by the witness in this particular case are not relevant to the issues that are
raised in this case, and those opinions will not be helpful to the jurors in reaching a
decision in this case” because he did not offer any “opinions concerning apparent
danger and fear.” The trial court excluded Gutierrez from testifying.
C. Analysis
The trial court ruled that Gutierrez was qualified as an expert, and it
acknowledged that expert testimony on the issue of domestic violence may be
admissible under some circumstances. See, e.g., Fielder v. State, 756 S.W.2d 309,
315–16, 319–21 (Tex. Crim. App. 1988) (expert testimony concern dynamics of
domestic violence were admissible to “rehabilitate” impeached defendant claiming
20
self-defense); Dixon v. State, 244 S.W.3d 472, 480 (Tex. App.—Houston [14th
Dist.] 2007, pet. ref’d) (police officer trained and experienced in family violence
permitted to testify as expert on behavior of victims of family violence); Brewer v.
State, 370 S.W.3d 471, 472–74 (Tex. App.—Amarillo 2012, no pet.) (allowing
expert testimony to explain delay in reporting abuse).
The trial court found, however, that Gutierrez’s opinions were “not relevant
to the issues that [were] raised in this case, and those opinions [would] not be
helpful to the jurors in reaching a decision in this case.” This finding is supported
by the record and does not constitute an abuse of discretion by the 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 TEX. R.
EVID. 402). “Evidence is relevant 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.” TEX. R. EVID. 401. “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 expert testimony, “[t]he relevance inquiry is whether
evidence ‘will assist the trier of fact’ and is sufficiently tied to the facts of the
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case.” Tillman 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 case to the
scientific principles which are the subject of his testimony.’” Id.
Here, nothing in the record demonstrated that there was a history of
domestic violence between Buford and Lester. Many witnesses testified that the
parties engaged in verbal disagreements, but there was no evidence of physical
conflict between the parties prior to the day of the shooting aside from Buford
bumping into Lester while he was drunk. Buford testified that Lester directed
verbal abuse toward him, but he also testified that he was able to leave the house or
take a drive in his truck when she did so. The evidence suggested that Buford also
directed verbal abused toward Lester. Gutierrez was not aware of the underlying
facts involving the mutual verbal altercations and had not spoken with Buford or
with anyone who had first-hand knowledge of Buford and Lester’s relationship.
Thus, the record establishes facts from which the trial court properly
exercised its discretion in excluding Gutierrez’s testimony under the general rules
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 spouse syndrome” under
general relevancy rules). None of Gutierrez’s expert opinions could have tied
pertinent facts of the case to the principles of the cycle of abuse or abuser-victim
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dynamics between Lester and Buford in a way that would have assisted the jury in
reaching a verdict. See Tillman, 354 S.W.3d at 438. And, as the trial court
observed, nothing about Gutierrez’s opinions would have been able to address
whether Buford’s perception of apparent danger and fear of Lester was reasonable
under the circumstances, because Gutierrez himself testified that he was not aware
of the underlying circumstances and that he had only generalized knowledge based
on hypothetical facts.
Buford was required to prove by clear and convincing evidence that
Gutierrez’s testimony was relevant to helping the jury reach accurate results. See
TEX. R. EVID. 702; Wolfe, 509 S.W.3d at 335. He failed to meet this standard.
We overrule Buford’s second issue.
Conclusion
We affirm the judgment of the trial court.
Richard Hightower
Justice
Panel consists of Justices Keyes, Lloyd, and Hightower.
Publish. TEX. R. APP. P. 47.2(b).
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