Butler v. State

• Decision Date: 08 January 2015
• Docket Number: No. 10-13-00430-CR,10-13-00430-CR
• Parties: QUINCY DESHAN BUTLER, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

QUINCY DESHAN BUTLER, Appellant v. THE STATE OF TEXAS, Appellee

No. 10-13-00430-CR

STATE OF TEXAS IN THE TENTH COURT OF APPEALS

January 8, 2015

From the 272nd District Court Brazos County, Texas

Trial Court No. 12-00472-CRF-272

MEMORANDUM OPINION

In five issues, appellant, Quincy Deshan Butler, challenges his conviction for deadly conduct by discharging a firearm. See TEX. PENAL CODE ANN. § 22.05(b) (West 2011). We affirm.

I. BACKGROUND¹

This is the not the first time this criminal transaction has been before this Court. See, e.g., Ex parte Butler, No. 10-13-00362-CR, 2014 Tex. App. LEXIS 5833 (Tex. App.— Waco May 29, 2014, pet. ref'd) (mem. op., not designated for publication); State v. Butler, No. 10-12-00234-CR, 2013 Tex. App. LEXIS 5541 (Tex. App.—Waco May 2, 2013, pet. ref'd) (mem. op., not designated for publication). In the instant case, appellant was charged by indictment with deadly conduct by discharging a firearm and unlawful possession of a firearm by a felon.² Included in the indictment were two enhancement paragraphs referencing appellant's prior felony convictions for unlawful possession of a controlled substance. At the conclusion of the evidence, the jury found appellant guilty of engaging in deadly conduct by discharging a firearm. Additionally, the jury concluded that the enhancement paragraphs were true and subsequently sentenced appellant to sixty-two years' confinement in the Institutional Division of the Texas Department of Criminal Justice. This appeal followed.

II. APPELLANT'S MOTION TO QUASH THE INDICTMENT

In his first issue, appellant contends that the trial court erred in denying his motion to quash the indictment in this case.

A. Applicable Law

The sufficiency of an indictment is a question of law. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). Therefore, we review de novo a trial court's ruling on a motion to quash an indictment. Id. An indictment is sufficient when it charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged. TEX. CODE CRIM. PROC. ANN. art. 21.11 (West 2009).

B. Discussion

Here, the indictment provides the following, in relevant part:

QUINCY BUTLER hereinafter referred to as the Defendant, heretofore on or about May 28, 2011, did then and there knowingly discharge a firearm at or in the direction of individuals, namely, Pinkie Hardy and David Robertson [sic],

And it is further presented in and to said Court that, during the commission of the aforesaid offense, the defendant did then and there use or exhibit a deadly weapon, to-wit: a firearm, which in the manner of its use or intended use was capable of causing death or serious bodily injury,

PARAGRAPH TWO: and it is further presented in and to said Court, that the said QUINCY BUTLER, in the County of Brazos and State of Texas on or about the 28th day of May, 2011, did,

Then and there knowingly discharge a firearm at or in the direction of a habitation, and the defendant was then and there reckless as to whether the habitation was occupied, to-wit: by discharging said firearm at a habitation knowing that Pinkie Hardy and David Robertson [sic] were inside of said habitation,

And it is further presented in and to said Court that, during the commission of the aforesaid offense, the defendant did then and there use

or exhibit a deadly weapon, to-wit: a firearm, which in the manner of its use or intended use was capable of causing death or serious bodily injury.

COUNT TWO: and it is further presented in and to said Court, that the said QUINCY BUTLER, in the County of Brazos and State of Texas on or about the 28th day of May, 2011, did,

then and there, having been convicted of the felony offense of Possession of Controlled Substance on the 7th day of February, 2008, in Cause No. 44367 in the 240th District Court of Fort Bend County, Texas, intentionally or knowingly possess a firearm before the fifth anniversary of the defendant's release from confinement following conviction of said felony,

And it is further presented in and to said Court that, during the commission of the aforesaid offense, the defendant did then and there use or exhibit a deadly weapon, to-wit: a firearm, which in the manner of its use or intended use was capable of causing death or serious bodily injury, namely, by discharging said firearm at Pinkie Hardy and David Robertson [sic] or at a habitation in which the defendant knew Pinkie Hardy and David Robertson [sic] were located . . . .

In his motion to quash, appellant argued that: (1) Count 2 of the indictment improperly charges appellant with two different crimes—unlawful possession of firearm by a felon and deadly conduct; (2) the deadly-conduct allegation fails to state a culpable mental state; (3) the indictment improperly expanded the definition of deadly weapon to include extraneous acts and offenses; and (4) the indictment improperly charges appellant with the same offense—deadly conduct—in both Counts 1 and 2 of the indictment, thereby violating his rights to due process and double jeopardy.

1. Count 2 of the Indictment

With respect to Count 2 of the indictment, the record is clear that appellant has not been tried on that count. As such, appellant's complaints about Count 2 of the indictment amount to an interlocutory appeal of the trial court's denial of his motion toquash. See, e.g., Chambliss v. State, No. 10-13-00002-CR, 2013 Tex. App. LEXIS 2060, at **1-2 (Tex. App.—Waco Feb. 28, 2013, no pet.) (mem. op., not designated for publication). We do not have jurisdiction of an interlocutory appeal of the denial of a motion to quash an indictment. See Abbott v. State, 271 S.W.3d 694, 696-97 (Tex. Crim. App. 2008) (noting that the standard for determining jurisdiction is not whether the appeal is precluded by law, but whether an appeal is authorized by law); Everett v. State, 91 S.W.3d 386, 386 (Tex. App.—Waco 2002, no pet.) (stating that the court has jurisdiction over criminal appeals only when expressly granted by law); Wright v. State, 969 S.W.2d 588, 589 (Tex. App.—Dallas 1998, no pet.) (stating that appellate court may consider appeals by criminal defendants only after conviction); see also Charboneau v. State, No. 05-13-00203-CR, 2013 Tex. App. LEXIS 1793, at *2 (Tex. App.—Dallas Feb. 20, 2013, no pet.) (mem. op., not designated for publication) ("Orders denying pretrial motions to suppress, quash a complaint, and dismiss are not appealable interlocutory orders."). Therefore, we lack jurisdiction to address appellant's first and fourth contentions—both of which center on Count 2 of the indictment. See Abbott, 271 S.W.3d at 696-97; Everett, 91 S.W.3d at 386; Wright, 969 S.W.2d at 589; see also Chambliss, 2013 Tex. App. LEXIS 2060, at **1-2; Charboneau, 2013 Tex. App. LEXIS 1793, at *2.

2. Culpable Mental States

In his motion to quash, appellant also argues that the deadly-conduct allegation contained in the indictment failed to state all of the elements of the offense of deadly conduct by failing to state a culpable mental state. However, on appeal, appellant asserts that the indictment alleged the wrong culpable mental state. Specifically,appellant contends that the "knowing" culpable mental state refers to the discharging of a firearm, and the "reckless" culpable mental state pertains to appellant's knowledge that the trailer house was occupied.

Based on our review of the record, appellant's complaint on appeal pertaining to the culpable mental states listed in the indictment do not comport with appellant's complaints made in his motion to quash. A complaint will not be preserved if the legal basis of the complaint raised on appeal varies from the complaint made at trial. See TEX. R. APP. P. 33.1; see also Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009). Accordingly, because appellant's contention does not comport with the argument made at trial, this contention presents nothing for review. See TEX. R. APP. P. 33.1; see also Lovill, 319 S.W.3d at 691-92.

3. The Deadly-Weapon Allegation

In his final contention in this issue, appellant asserts that the trial court should have granted his motion to quash because the State improperly added additional elements to the deadly-weapon allegation in the indictment. More specifically, appellant alleges that since a firearm is a per se deadly weapon, the State was not required to prove anything related to the manner of its use. However, as the Court of Criminal Appeals has recently stated, mere possession of a firearm during the commission of a felony is not sufficient to sustain a deadly-weapon finding. Plummer v. State, 410 S.W.3d 855, 858-60 (Tex. Crim. App. 2013). Rather, the State must prove that: (1) the object meets the statutory definition of a dangerous weapon; (2) the deadly weapon was used or exhibited during the transaction from which the felony convictionwas obtained; and (3) that other people were put in actual danger. Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005) (en banc) (internal citations omitted). The language contained in the indictment merely identified the elements necessary for the State to prove the affirmative finding of a deadly weapon. See id. As such, we cannot say that the trial court erred in denying appellant's motion to quash on this ground. See Moff, 154 S.W.3d at 601. And based on the foregoing, we overrule appellant's first issue.

III. APPELLANT'S MOTION FOR MISTRIAL

In his third issue, appellant complains that the trial court abused its discretion by denying his motion for mistrial on three different occasions during trial.

A. Applicable Law

We review the denial of a motion for mistrial under an abuse-of-discretion standard. Archie v. State, 221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007). Under this standard, we uphold the trial court's ruling as long as the...