NUMBER 13-12-00608-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
BILLY DEAN BUTLER, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 156th District Court
of Bee County, Texas.
MEMORANDUM OPINION ON REMAND
Before Justices Benavides, Perkes, and Longoria
Memorandum Opinion On Remand by Justice Benavides
This case is before us on remand from the Texas Court of Criminal Appeals. See
Butler v. State, No. 13-12-00608-CR, 2014 WL 1272232, at *6 (Tex. App.—Corpus Christi
Mar. 27, 2014), rev’d and remanded, Butler v. State, 459 S.W.3d 595, 606 (Tex. Crim.
App. 2015). The court of criminal appeals reversed this Court’s previous judgment and
remanded the case for us to determine whether the evidence of the text messages
admitted at trial were inadmissible under rules of evidence 403 and 404(b). We affirm.
I. ADMISSIBILITY OF EVIDENCE1
By his sole issue on appeal, Butler asserts that the trial court abused its discretion
by admitting unauthenticated and irrelevant text messages into evidence. Because the
court of criminal appeals ruled that the trial court did not abuse its discretion in finding the
text messages authenticated, see id. at 605, we now address Butler’s argument regarding
the exhibit’s admissibility under Rules 403 and 404(b). See TEX. R. EVID. 403, 404(b).
A. Standard of Review and Applicable Law
“The standard of review for a trial court's ruling under the Rules of Evidence is
abuse of discretion.” Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005) (citing
Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004)). If the ruling was correct
on any theory of law applicable to the case, in light of what was before the trial court at
the time the ruling was made, then we must uphold the judgment. Id. (internal citations
omitted). Extraneous-offense evidence is admissible under both Rules 404(b) and 403
if that evidence satisfies a two-prong test: whether the extraneous offense evidence is
relevant to a fact of consequence in the case apart from its tendency to prove conduct in
conformity with character; and whether the probative value of the evidence is not
substantially outweighed by unfair prejudice. Id. (internal citations omitted). Appellate
courts will uphold a trial court's ruling on the admissibility of evidence as long as the trial
1 As this is a memorandum opinion on remand and the parties are familiar with the factual and
procedural histories of this case, we will not recite them here except as necessary to advise the parties of
the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.1. For a more detailed recitation
of the factual and procedural backgrounds of this case, see Butler v. State, 459 S.W.3d 595, 598–600 (Tex.
Crim. App. 2015).
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court's ruling was at least within the zone of reasonable disagreement. Id. (internal
citation and quotations omitted).
B. Discussion
Butler argues that the text messages admitted into evidence were inadmissible
because they (1) constitute an extraneous offense under rule of evidence 404(b), and (2)
the exhibit’s probative value was outweighed by its unfair prejudice and confusion of the
issues under rule of evidence 403. We disagree with both arguments.
Evidence of a crime, wrong, or other act is not admissible to prove a person's
character in order to show that on a particular occasion the person acted in accordance
with the character. TEX. R. EVID. 404(b)(1). However, the evidence may be admissible
for another purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident. Id. R. 404(b)(2).
Additionally, a trial court may exclude evidence, even if evidence is relevant, if its
probative value is substantially outweighed by a danger of unfair prejudice or confusion
of the issues. Id. R. 403.
The text messages involved in this case deal with communication between Butler
and the complainant prior to trial. In these messages, Butler calls the complainant a
“snithin [sic] ass bitch” and threatens to kill her and her family for speaking to the police
related to the instant case. Acts designed to reduce the likelihood of prosecution,
conviction, or incarceration for the offense on trial are admissible under Rule 404(b)
because the acts show a “consciousness of guilt.” See Ransom v. State, 920 S.W.2d
288, 299 (Tex. Crim. App. 1994). These acts include threats against witnesses and their
families. Id. Threats or other attempts at coercion are hardly the actions of an innocent
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accused, and evidence of such is every bit as probative of guilt as would be flight by the
accused. Peoples v. State, 874 S.W.2d 804, 809 (Tex. App.—Fort Worth 1994, pet.
ref’d). Therefore, we conclude that the trial court did not abuse its discretion in admitting
the text messages over Butler’s Rule 404(b) and Rule 403 objections because the
evidence showed Butler’s consciousness of guilt leading up to trial, and under the facts
of this case, such consciousness of guilt evidence outweighed any prejudicial impact or
confusion of issues. See Ransom, 920 S.W.2d at 299. Butler’s sole issue is overruled.
II. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
10th day of December, 2015.
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