Opinion issued April 20, 2021
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-19-00796-CR ——————————— FREDDIE LEE JAMERSON, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 371st District Court Tarrant County, Texas Trial Court Case No. 1597524D
MEMORANDUM OPINION
Appellant Freddie Lee Jamerson was charged with assaulting his wife Gloria
Hyson “by intentionally, knowingly, or recklessly . . . impeding the normal breathing
or circulation of the blood of [ ] Hyson by applying pressure to [her] throat or neck . . . with [his] hand or arm.”1 The indictment included a habitual offender notice
alleging two prior felony convictions. At the end of the guilt-innocence phase of the
trial, the jury found Jamerson guilty of the charged offense. Jamerson elected to have
his punishment assessed by the trial court and pleaded “true” to the allegations in the
habitual offender notice. After a punishment hearing, the trial court sentenced
Jamerson to 50 years’ confinement. In a single issue on appeal, Jamerson contends
the trial court erred by admitting evidence of a subsequent assault during the
guilt-innocence phase of the trial.2
We affirm.
Background
On December 15, 2018, Jamerson was staying with Hyson at a motel in Fort
Worth, Texas. That evening, Hyson decided to separate from Jamerson due to a
history of violence in their two-year relationship. She attempted to leave the motel
room. But as she opened the door, Jamerson leaped ahead of her, slammed the door
shut, pressed her against an interior wall, placed his hands on her neck, and began to
1 See TEX. PENAL CODE § 22.01(b)(2)(B); TEX. FAM. CODE §§ 71.003, 71.005. 2 Pursuant to its docket-equalization authority, the Supreme Court of Texas transferred this appeal to this Court. See Misc. Docket No. 19-9091 (Tex. Oct. 1, 2019); see also TEX. GOV’T CODE § 73.001 (authorizing transfer of cases). We researched relevant case law and did not locate any conflict between the precedent of the Court of Appeals for the Second District and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
2 strangle her. He then wrestled her to the bed, where he continued to strangle her.
Hyson struggled to breathe and became lightheaded. She believed Jamerson was
going to kill her.
A woman in the adjacent motel room heard the struggle and knocked on the
door to Jamerson and Hyson’s motel room, creating an opportunity for Hyson to flee
to her car and cal1 911.3 Emergency personnel were dispatched to the motel, but
Jamerson left the scene before police arrived. Hyson declined an ambulance because
she was able to breathe and felt safe with emergency personnel present.4
Officer J. Perez, a Fort Worth Police Department patrol officer, interviewed
Hyson at the motel. She told him that Jamerson had strangled her and that this was
not the first violent incident between them. Even though he did not observe any
visible injury on Hyson’s neck, Officer Perez photographed Hyson as part of his
investigation. The lack of a visible neck injury did not indicate to him that an assault
had not occurred. He observed other signs of strangulation—Hyson had a “raspy”
voice and gagged and coughed when she spoke.
Jamerson was charged with family violence assault in connection with the
December 15 motel-room assault. At trial, Hyson testified that Jamerson had
3 The record suggests that Jamerson also may have called 911 or, as Hyson testified, took the phone after she placed the call and spoke with the 911 operator. 4 After the police had gone, Jamerson returned to the motel. Hyson did not call the police upon his return because she felt it was an “embarrassing cycle.”
3 threatened more than once to kill her if she left the relationship, and she described
multiple other incidents of physical violence at Jamerson’s hands.5 Four of these
were prior incidents of violence, occurring before the December 15 motel-room
assault. She described an incident early in the relationship when Jamerson slapped
her after they purchased some curtains for their home. More “extreme” violence
occurred next. After she returned from visiting family out of town, Jamerson first
threw her against a wall, causing the back of her head to strike and break the drywall,
and then threw her to the ground and “started to choke [her].” Hyson lost her voice
for at least three days and suffered a bloody lip and eye following that incident. On
another occasion, Jamerson struck Hyson in the head. And in November 2018—the
month before the motel-room incident—Jamerson struck Hyson in the face with a
cell phone, causing her face to swell.6 Hyson said she thought about leaving
Jamerson more than once, but she stayed because he expressed remorse and she
wanted the relationship to work.
In addition to these prior incidents of physical violence, Hyson testified about
a subsequent incident that occurred three days after the December 15 motel-room
5 The State gave notice of its intent to offer evidence of these additional incidents— and more than 15 other arrests or convictions for various offenses—during its case-in-chief. TEX. R. EVID. 404(b)(2). 6 Hyson’s testimony suggests that she obtained a restraining order against Jamerson at some point in the relationship. The record does not reveal the effective date(s) of any prior restraining order. 4 assault. On December 18, Jamerson approached Hyson outside the house where she
stayed after leaving the relationship. She noticed he was “drunk,” upset, and had a
knife. She testified that, during an ensuing struggle, Jamerson threatened to kill her
and tried to injure her with the knife. Again, the police were called. Jamerson used
the knife to slash the tires on Hyson’s car before the police arrived.
Officer M. Marquez was one of the patrol officers who responded to the
December 18 incident, which he described as a domestic-violence call involving a
weapon. When Officer Marquez arrived, he saw a man whom he identified in court
as Jamerson drop an item along a retaining wall. Officer Marquez recovered the
item—a black pocketknife. Jamerson admitted to Officer Marquez that he had cut
the tires on Hyson’s car, though he claimed the car belonged to him.
Lacy Hensley, a social worker, testified for the State as an expert “in the
dynamics of domestic violence with specialized training in strangulation.”
According to Hensley, only half of people who experience strangulation have visible
injuries. An occurrence of strangulation places domestic-violence victims in an
especially high-risk category. She explained, “Odds for homicide increase 750
percent for [domestic-violence] victims who have previously been strangled
compared to victims who have never been strangled.” The most dangerous time in a
relationship in which domestic violence occurs is when the victim leaves—“the
5 abuser is losing power and control” and, as a result, tends to become more violent in
order to “maintain control in that relationship and prevent the victim from leaving.”
Hensley testified that the “cycle of violence” commonly has three phases.
First is the “tension-building” phase, which she described as a time during which the
“victim [walks] on eggshells” because her partner is easily agitated and she is
uncertain what will “set [her] partner off.” In the second phase, a physically or
verbally abusive event occurs. The final phase is the “honeymoon” phase, when the
perpetrator of the violence may promise to change and the victim may feel hopeful
that things will improve. Hensley explained that it is common for people in this cycle
to stay in the relationship where the violence occurred—sometimes because the
person experiencing the violence fears that ending the relationship will provoke the
perpetrator to commit deadly violence against her. She opined that a person
experiencing domestic violence, on average, attempts to leave the relationship at
least seven times before leaving it for good.
Standard of Review
We review the trial court’s ruling on the admission of evidence for an abuse
of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Walker
v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism’d). A
trial court abuses its discretion if it acts arbitrarily, unreasonably, or without
reference to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380
6 (Tex. Crim. App. 1990). We will uphold an evidentiary ruling unless it falls outside
the “zone of reasonable disagreement.” Tillman, 354 S.W.3d at 435.
Generally, the erroneous admission of evidence is non-constitutional error,
subject to a harm analysis. Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App.
2010); Robinson v. State, 236 S.W.3d 260, 269 (Tex. App.—Houston [1st Dist.]
2007, pet. ref’d). Non-constitutional error requires reversal only if it affects the
defendant’s substantial rights. See TEX. R. APP. P. 44.2(b); Barshaw v. State, 342
S.W.3d 91, 93–94 (Tex. Crim. App. 2011). The defendant’s substantial rights are
affected “when the error had a substantial and injurious effect or influence in
determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.
1997). We will not overturn a criminal conviction for non-constitutional error if we
have fair assurance that the error did not influence the jury or had but a slight effect.
Barshaw, 342 S.W.3d at 93.
Extraneous-Offense Evidence
In his sole issue on appeal, Jamerson contends the trial court erred by allowing
the State to elicit testimony recounting the December 18 incident and by admitting
the pocketknife recovered by Officer Marquez into the evidence.7 Specifically,
7 Jamerson frames this issue as whether the trial court abused its discretion “by admitting into evidence . . . a knife that was in [his] possession at the time of his arrest” following the December 18 incident. Reading Jamerson’s appellate brief liberally, however, we understand his complaint to include a broader challenge not 7 Jamerson argues that the challenged testimony and evidence was prohibited
extraneous-offense evidence under Texas Rule of Evidence 404(b).
Relying on article 38.371 of the Code of Criminal Procedure, the trial court
found the testimony regarding the December 18 incident and the pocketknife were
admissible to illustrate the nature of Jamerson and Hyson’s relationship. Article
38.371 provides that for certain family violence offenses, including the one for
which Jamerson was convicted, evidence of the relationship between the victim and
the accused is admissible so long as it is not evidence that is otherwise prohibited by
the Texas Rules of Evidence:
(b) In the prosecution of an offense described by Subsection (a), subject to the Texas Rules of Evidence or other applicable law, each party may offer testimony or other evidence of all relevant facts and circumstances that would assist the trier of fact in determining whether the actor committed the offense . . . , including testimony or evidence regarding the nature of the relationship between the actor and the alleged victim.
(c) This article does not permit the presentation of character evidence that would otherwise be inadmissible under the Texas Rules of Evidence or other applicable law.
just to the admissibility of the pocketknife but also to the testimony recounting the December 18 incident.
To the extent Jamerson’s brief can also be read to challenge the admissibility of Hyson’s testimony on the physical violence that occurred before the charged offense, that complaint has been waived because there was no objection to that testimony at trial. See TEX. R. APP. P. 33.1(a) (to preserve a complaint for appeal, appellant must object in trial court and obtain trial court’s ruling on the objection). Jamerson’s counsel acknowledged that prior incidents of violence would be admissible under article 38.371 of the Code of Criminal Procedure. TEX. CODE CRIM. PROC. art. 38.371.
8 TEX. CODE CRIM. PROC. art. 38.371; see Foster v. State, No. 01-17-00537-CR, 2018
WL 1914871, at *3 (Tex. App.—Houston [1st Dist.] Apr. 24, 2018, pet. ref’d) (mem.
op., not designated for publication) (article 38.371(c) does not permit presentation
of character evidence that otherwise would be inadmissible under Texas Rules of
Evidence); Gonzalez v. State, 541 S.W.3d 306, 312 (Tex. App.—Houston [14th
Dist.] 2017, no pet.) (same). The question is thus whether the trial court’s rulings
violated Rule 404(b), as incorporated by subsection (c) of article 38.371.
Rule 404(b) generally excludes evidence of other crimes, wrongs, or acts
offered for the purpose of proving that a defendant committed the charged offense
in conformity with his own bad character. TEX. R. EVID. 404(b)(1); Devoe v. State,
354 S.W.3d 457, 469 (Tex. Crim. App. 2011). There are exceptions. See TEX. R.
EVID. 404(b)(2). Although evidence of other crimes, wrongs, or acts may show
character conformity, extraneous-offense evidence that has relevance may be
admissible for other purposes. Id.; Montgomery v. State, 810 S.W.2d 372, 387–88
(Tex. Crim. App. 1990) (op. on reh’g). Permissible purposes listed in Rule 404(b)
include motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident. TEX. R. EVID. 404(b)(2). But “this list is not
exhaustive.” Garcia v. State, 201 S.W.3d 695, 703 (Tex. Crim. App. 2006).
The State contends the challenged evidence of the December 18 incident was
admissible for two non-character-conformity purposes: (1) to contextualize the 9 nature of Jamerson and Hyson’s relationship, and (2) to rebut Jamerson’s defensive
theory that Hyson fabricated the motel-room strangulation. As support for its
contentions, the State relies primarily on two decisions from our sister court in Fort
Worth, the court from which this appeal was transferred, and our sister court in
Austin. See Williams v. State, No. 02-18-00382-CR, 2019 WL 2223214, at *2 (Tex.
App.—Fort Worth May 23, 2019, no pet.) (mem. op., not designated for
publication); Tran v. State, No. 03-17-00155-CR, 2018 WL 3118464, at *1 (Tex.
App.—Austin June 26, 2018, pet. ref’d) (mem. op., not designated for publication).
In Williams, the defendant appealed his conviction for causing bodily injury
to his mother, contending the trial court erred by allowing the State to elicit the
mother’s testimony about the defendant having previously assaulted her. 2019 WL
2223214, at *1. At trial, the mother expressed embarrassment over the assaults and
stated that she would not have testified against the defendant had the State not
subpoenaed her to do so. Id. at *2. The appellate court determined that it was “well
within the zone of reasonable disagreement for the trial court to have found . . . that
the disputed evidence was admissible for a non-character-conformity purpose.” Id.
at *3. Specifically, the trial court could have reasonably concluded that the evidence
of the defendant’s past assaultive behavior toward the mother was necessary for the
jury to understand why she did not want to testify at trial, as well as the nature of her
10 relationship with the defendant and the defendant’s motivation for assaulting her
again. Id.
The defendant in Tran, like Jamerson here, was found guilty of assaulting his
wife by strangulation. 2018 WL 3118464, at *1. On appeal, he argued that evidence
of a prior arrest for family violence against his wife was inadmissible
extraneous-offense evidence under Rule 404(b). Id. at *2. The appellate court
disagreed, noting there were multiple permissible purposes for admitting the
evidence of the prior arrest. Id. at *3. The evidence suggested that the assault for
which the defendant was on trial was not an accident or mistake. Id. In addition,
because the wife refused to comply with a subpoena instructing her to appear and
testify, the evidence of the prior assault could suggest to the jury that she failed to
appear because she was in fear or had been manipulated by the defendant, not
because the defendant did not commit the assault. Id. Finally, the evidence was
admissible to rebut the defense’s theory that the defendant had assaulted his wife in
self-defense or mutual combat. Id.
Beyond these two cases, we recognize a significant body of case law
recognizing the special dynamics in family violence cases and the need for this type
of evidence. See, e.g., Nash v. State, Nos. 02-17-00236-CR, 02-17-00237-CR, 2018
WL 4495440, at *6 (Tex. App.—Fort Worth Sept. 20, 2018, pet. ref’d) (mem. op.,
not designated for publication) (evidence of defendant’s prior violence and
11 relationship with victim was relevant to explain why victim’s trial testimony differed
from her statements to police and nurse examiner and was admissible as more than
mere character-conformity evidence); Espinoza v. State, No. 05-17-00547-CR, 2018
WL 6716619, at *6 (Tex. App.—Dallas Dec. 21, 2018, no pet.) (mem. op., not
designated for publication) (“[T]he nature of the victim’s relationship with
[defendant] and, additionally, [defendant]’s statements that he repeatedly assaulted
her in the days prior to the offense were relevant to explain her apparent
unwillingness to cooperate with law enforcement and the prosecution.”); Gonzalez,
541 S.W.3d at 312–13 (defendant’s prior conviction for assaulting same complainant
was admissible to rebut defensive theory of fabrication and given complainant’s
reluctance to testify and recantation); McCleery v. State, No. 03-17-00154-CR, 2017
WL 4766722, at *6 (Tex. App.—Austin Oct. 20, 2017, no pet.) (mem. op., not
designated for publication) (photographic evidence of injuries sustained in a prior
assault was admissible for non-character-conformity purpose of rebutting defensive
theory of fabrication and providing context for complainant’s failure to report for
more than one month).
The record in this case is distinguishable from these cases in some respects.
For instance, unlike the complainants in Williams and Tran, Hyson did not refuse to
cooperate with law enforcement or the prosecution. At trial, she was firm in her
desire to testify against Jamerson, and she did not recant her allegations against him.
12 But that distinction does not place the trial court’s decision to admit the challenged
evidence for a non-character-conformity purpose outside the zone of reasonable
disagreement.
During opening statements, Jamerson’s counsel reminded the jury that the
charged offense was impeding Hyson’s breath or circulation, and he predicted the
evidence would show “there were no visible injuries, no scratching, no bruising, no
any sort of redness around [Hyson’s] neck.” This opening statement may be
reasonably understood as calling into question whether Hyson had fabricated the
allegation of strangulation. The defense emphasized its theory through
cross-examination of multiple witnesses on the lack of visible injury to Hyson.
The State rebutted the defensive theory with testimony from Officer Perez and
Hensley that a lack of visible injury did not, in their view, disprove the occurrence
of strangulation. It is at least within the zone of reasonable disagreement that the
testimony recounting the December 18 assault and the pocketknife recovered by
Officer Marquez were admissible for the same non-character-conformity purpose of
showing that Hyson’s allegation of a strangulation three days before was less likely
to be fabricated, particularly given Hensley’s testimony that an occurrence of
strangulation (as Hyson alleged took place in the December 15 motel-room assault)
increases the odds of further, potentially more deadly, violence in a relationship (as
Hyson alleged took place in the December 18 assault involving the pocketknife).
13 The challenged evidence thus has some logical relevance aside from character
conformity because it rebuts to some extent the defensive claim of fabrication. See
Bass v. State, 270 S.W.3d 557, 562–63 (Tex. Crim. App. 2008) (case law supports
decision that defensive theory presented in opening argument may open door to
admission of extraneous-offense evidence); see also Gonzalez, 541 S.W.3d at 312
(extraneous-offense evidence admissible to rebut defensive theory that assault never
happened); McCleery, 2017 WL 4766722, at *6 (photographic evidence of prior
assault was admissible to rebut defensive theory of fabrication). In addition, the
context supplied by the evidence of the December 18 assault may have aided the
jury in understanding Jamerson and Hyson’s relationship as part of the cycle of
violence explained by Hensley.
We are not persuaded that the challenged evidence was inadmissible because
it concerns an act subsequent to the charged offense. Neither article 38.371 nor Rule
404(b) contains any provision limiting their respective applicability to evidence of
prior acts. TEX. CODE CRIM. PROC. art. 38.371; TEX. R. EVID. 404(b); see, e.g.,
Santellan v. State, 939 S.W.2d 155, 168–69 (Tex. Crim. App. 1997) (holding
extraneous conduct subsequent to charged offense was admissible under Rule 404(b)
for non-character-conformity purpose); Fernandez v. State, 597 S.W.3d 546, 565–
66 (Tex. App.—El Paso 2020, pet. ref’d) (holding child’s testimony involving other
assaults by defendant against mother, including assaults occurring after charged
14 offense, was admissible for non-character-conformity purpose under article 38.371);
Corley v. State, 987 S.W.2d 615, 620 (Tex. App.—Austin 1999, no pet.) (noting
there is no per se rule as to when extraneous offense is too remote in time to be
admissible).
As we have explained, it was at least within the zone of reasonable
disagreement that the challenged testimony and evidence was relevant to
contextualize the relationship between Jamerson and Hyson and to aid the jury in
determining whether assault by strangulation had occurred. We therefore hold that
the trial court did not abuse its discretion by admitting the challenged
extraneous-offense testimony and evidence.
But even if the trial court had abused its discretion by admitting the challenged
evidence of the December 18 incident, our review of the record as a whole does not
indicate that the error would be reversible. Error pertaining to the admission of
evidence is non-constitutional in nature; thus, it must be disregarded unless it
affected substantial rights of Jamerson. TEX. R. APP. P. 44.2(b); see Motilla v. State,
78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (“[S]ubstantial rights are not affected
by the erroneous admission of evidence if the appellate court, after examining the
record as a whole, has fair assurance that the error did not influence the jury, or had
but a slight effect.”) (quotation omitted).
15 Jamerson does not contend that the challenged evidence of the December 18
incident influenced the jury’s verdict on guilt or innocence—the unchallenged
testimony and evidence from that phase of the trial established the elements of
assault family violence, by impeding breath or circulation. See TEX. PENAL CODE
§ 22.01(b)(2)(B). Rather, Jamerson asserts harm is shown by the trial court’s
assessment of punishment. Jamerson’s sentence is within the punishment range for
the charged offense, as increased by the enhancement to the habitual offender range
of 25 to 99 years or life. See TEX. PENAL CODE § 12.42(d). Jamerson pleaded true to
the allegations in the habitual offender notice. And at sentencing, the trial court was
permitted to consider a wide scope of evidence, including evidence of other crimes,
wrongs, or bad acts. TEX. CODE CRIM. PROC. art. 37.07, § 3(a)(1) (relevant evidence
at sentencing includes “the prior criminal record of the defendant, his general
reputation, his character, an opinion regarding his character, the circumstances of
the offense for which he is being tried, and, notwithstanding Rules 404 and 405 of
the Texas Rules of Evidence, any other evidence of an extraneous crime or bad act
that is shown beyond a reasonable doubt by evidence to have been committed by the
defendant”); see Payne v. Tennessee, 501 U.S. 808, 820–21 (1991) (sentencing
authority “has always been free to consider a wide range of relevant material”).
Even without regard to the December 18 incident, the evidence of other
crimes, wrongs, or bad acts which the trial court could consider in assessing
16 punishment was significant. The State presented, without objection, evidence of at
least four additional incidents of violence perpetrated by Jamerson against Hyson,
including one prior instance involving strangulation. Considering the record as a
whole, we have a fair assurance that the evidence of the December 18 incident had
but a slight effect on the trial court’s assessment of punishment. See King, 953
S.W.2d at 273 (complained-of evidence has little to no effect on appellant’s
substantial rights when it is insignificant or pales in comparison to other, properly
admitted evidence).
We overrule Jamerson’s sole issue on appeal.
Conclusion
We affirm the judgment of the trial court.
Amparo Guerra Justice
Panel consists of Justices Countiss, Rivas-Molloy, and Guerra.
Do not publish. TEX. R. APP. P. 47.2(b).