Borton v. State

• Docket Number: 04-22-00255-CR
• Decision Date: 30 August 2023
• Parties: Charles BORTON, Jr., Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

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Charles BORTON, Jr., Appellant
v.
The STATE of Texas, Appellee

No. 04-22-00255-CR

Court of Appeals of Texas, Fourth District, San Antonio

August 30, 2023

From the 216th Judicial District Court, Gillespie County, Texas Trial Court No. DC7029 Honorable Albert D. Pattillo, III, Judge Presiding

Sitting: Rebeca C. Martinez, Chief Justice, Patricia O. Alvarez, Justice Liza A. Rodriguez, Justice

OPINION

Patricia O. Alvarez, Justice

In this appeal, Appellant Charles Borton, Jr., appeals the legal and factual sufficiency of his conviction and challenges the trial court's evidentiary rulings as to Borton's reputation for both peacefulness and truthfulness. We affirm.

Background

Borton was convicted of aggravated assault with a deadly weapon after an incident where he pulled out his gun at an HEB gas station in Fredericksburg. Video surveillance footage from inside the cashier's kiosk at the gas station showed a silver pick-up truck pull up to a gas pump

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and then a white car pull up on the opposite side. In the video, the man from the white car, later identified as the complainant, walked towards the cashier's kiosk on the silver truck's side of the pump. The men appeared to stand very close to each other. The man from the truck, later identified as Borton, appeared to block the complainant from passing. The complainant then appeared to stiff-arm Borton into the side of his own truck. Once the complainant passed and approached the cashier's kiosk, Borton could be seen taking an object from his side and raising his hand and arm up, pointing in the direction of the complainant at the cashier's window.

At trial, the State's first witness was an officer in Fredericksburg who was off duty at the time of the incident. He stated that he was buying gas when he heard arguing and then witnessed Appellant Borton point a gun at the complainant who was standing at the cashier's window. The officer testified that Borton said, "I'm going to shoot you, motherf-er."

Appellant Borton testified that the complainant physically confronted him and that, because of his own disabilities, he felt reasonably fearful and justified in displaying his firearm.

The complainant testified that he verbally confronted Borton, but that Borton became physically confrontational and refused to let him pass. The complainant stated he pushed Borton aside with his forearm and walked towards the cashier's kiosk. He stated that he noticed from the corner of his eye when Borton pulled out a chrome revolver. He testified that Borton threatened to shoot him and said he did not care that the complainant's daughter was in the car.

Borton disagreed with the complainant's account.

The cashier also testified. She stated that she did not see Borton remove a gun from a holster and that Borton kept his hand on his hip. The prosecutor pointed out that the cashier made a statement at the time of the altercation that she did see Borton point a gun in the direction of the man and her. The cashier agreed that her memory of events would have been more accurate closer to the time of the incident. But she testified that she was familiar with Borton as a customer and

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stated that she knew he was a veteran. When asked if she was familiar with Borton's reputation for truthfulness in the community, she responded that he was a respectful customer. When asked about Borton's reputation for peacefulness, she stated that she only knew what other people told her. It was unclear what others might have told her about Borton or when, and the trial court did not allow her to continue on the subject. When asked about the complainant, she stated that she was unfamiliar with him and could not speak as to his reputation in the community.

Borton now appeals his conviction, arguing 1) the trial court should have allowed the cashier to testify as to his reputation for truthfulness and peacefulness, and 2) the evidence did not support the jury's implied rejection of self-defense. For the following reasons, we affirm.

Appellant's Reputation for Peacefulness and Truthfulness

A. Parties' Arguments

Borton argues that the trial court improperly excluded testimony about his reputation for peacefulness and truthfulness and that his conviction should be reversed as a result. The State argues that Borton failed to properly preserve his complaint for review. It argues that if he had, the trial court nevertheless correctly excluded the reputation testimony because Borton failed to show that the testifying witness was familiar with his reputation.

B. Standard of Review

"An appellate court reviews a trial court's decision to exclude evidence under an abuse of discretion standard." Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001) (citing Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). But if an appellant fails to preserve an alleged error, then the appellate court cannot review the complaint. See Tex. R. App. P. 33.1; Golliday v. State, 560 S.W.3d 664, 669 (Tex. Crim. App. 2018) (citing Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005)).

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C. Law

Borton cites Texas Rule of Evidence 103(a)(2) in support of his argument on the admissibility of his reputation evidence with a citation, which states: "A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and, if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context." Tex. R. Evid. 103(a)(2). However, Rule 103 "is entirely separate from Texas Rule of Appellate Procedure 33.1, which imposes the requirement of making a specific request, objection, or motion to preserve error on appeal." Golliday, 560 S.W.3d at 668-69 (citing Tex.R.App.P. 33.1). In fairness, Rule 33.1 provides for the grounds of a complaint to be apparent from context. See Tex. R. App. P. 33.1; Booth v. State, No. 05-18-00679-CR, 2019 WL 2482629, at *3 (Tex. App.-Dallas June 14, 2019, no pet.) (mem. op., not designated for publication); Nash v. State, No. 03-12-00456-CR, 2013 WL 4516182, at *3 (Tex. App.-Austin Aug. 21, 2013, pet. ref'd) (mem. op., not designated for publication). Nevertheless, "[a]ll error… may be waived by the failure to properly put the trial court on notice of the objection or request." Reyna, 168 S.W.3d at 177.

When an appellant wishes to appeal the trial court's decision to exclude evidence, he must have "put the trial court on notice as to what he wants, why he thinks he is entitled to it, in a clear enough manner for the court to understand him at a time when the court is in the proper position to grant relief." King v. State, No. 05-17-00965-CR, 2018 WL 4959415, at *1 (Tex. App.-Dallas Oct. 15, 2018, no pet.) (mem. op., not designated for publication) (citing Tex.R.App.P. 33.1(a)(1)(A); Pena v. State, 285 S.W.3d 459, 464-65 (Tex. Crim. App. 2009)). This concept is also known as "party responsibility." Pena, 285 S.W.3d at 463 (citing Reyna, 168 S.W.3d at 176). "Party responsibility" requires that "[t]he proponent, if he is the losing party on appeal, must have told the judge why the evidence was admissible." Reyna, 168 S.W.3d at 177. "The party must do

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everything necessary 'to bring to the judge's attention the evidence rule or statute in question and its precise and proper application to the evidence in question.'" Id. (citing Martinez v. State, 91 S.W.3d 331, 335-36 (Tex. Crim. App. 2002)); 1 Stephen Goode, et al., Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal, § 103.2, at 14 (2d ed.1993)); accord Golliday, 560 S.W.3d at 670-71. Before we can reach the merits, it must be clear that the complaining party on appeal brought to the trial court's attention the very complaint that party is now making on appeal. Martinez, 91 S.W.3d at 336 (citing State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998)).

D. Analysis

Here, it was clear from the record that Borton wanted to ask the HEB gas station cashier about his reputation in the community, first as to truthfulness and then as to peacefulness. See Tex. R. App. P. 33.1(a)(1)(A); Reyna, 168 S.W.3d 173, 180 (Tex. Crim. App. 2005) (Holcomb, J., dissenting). But when the prosecutor objected as to foundation, Borton provided no response:

DEFENSE: And do you know Mr. Borton?

CASHIER: I don't know him personally, but I have seen him in H-E-B many times.

DEFENSE: Do you know his reputation for truthfulness in the community?

PROSECUTOR: Objection, Your Honor. This witness has no knowledge as to that issue.

TRIAL COURT: Well, she - she can answer the question then.

CASHIER: I've just known him to always been a, you know, respectful customer. You know, he was a - he's a veteran, I know that.

DEFENSE: And do you know his reputation in the community for peacefulness and law-abidingness?

PROSECUTOR: Objection, Your Honor. She has no knowledge of that.

DEFENSE: Reputation.

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TRIAL COURT: Do you - do you know, Ms. -

CASHIER: Only - only from what other people have told me.

TRIAL COURT: Okay. Sustained.

DEFENSE: Okay. Has anyone told you anything bad about Mr. Borton?

PROSECUTOR: Objection, Your Honor.

TRIAL

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