Robert Thomas Buford v. State

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

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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 She was a little bit more withdrawn.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

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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,

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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.

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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)

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(“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.

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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

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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.”).

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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,

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(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

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“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].

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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.

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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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