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Joe Lee James v. The State of Texas
Case Number: 02-19-00427-CR
Judge: Mike Wallach
Court: Court of Appeals
Second Appellate District of Texas
at Fort Worth
Plaintiff's Attorney: Victoria A. Ford Oblon
Joseph W. Spence
Fort Worth, Texas - Criminal defense attorney represented Joe Lee James with violating an emergency protective order and (2) committing felony assault causing bodily injury charge.
At the root of these offenses is domestic violence. James and Jane began dating
in 2017. Soon the relationship became abusive, and he abused her emotionally,
verbally, physically, sexually, or in some combination thereof almost every day. On
April 10, 2018, someone saw them together inside a Fort Worth restaurant. When
James was not looking, Jane asked the person for help. That person followed them
from the restaurant and called 911 to report Jane’s request for assistance, James’s and
Jane’s physical descriptions, and the description of the vehicle in which they had left.
The responding Fort Worth Police Department (FWPD) officers found the couple
outside a nearby store. Jane told the police that James had abused her that day, and
Because James does not challenge the sufficiency of the evidence to support
his convictions, we omit a more detailed factual background and will set forth
additional facts as necessary in our discussion of his issues.4
they arrested him. She obtained an emergency protective order on April 11, 2018.
However, James was released from jail the next day, April 12, 2018.
On that day, James found Jane at a crack house, forced her to leave with him,
and threatened to kill her for reporting his abuse to the police. James abused Jane
verbally, physically, and sexually over the next two days. The verbal abuse included
more threats to kill her. The physical abuse included hitting her in the face and head
with his hands and fists and hitting her legs with sticks. The sexual abuse included two
acts of anal rape.
On the evening of April 13, 2018, James and Jane went to a convenience store.
While there, Jane let another shopper know that she needed help and asked him to
call the police after she left the store. He contacted the police after Jane left the store
and followed James and Jane for a short distance. The responding police found James
and Jane in a nearby park.
James and Jane both initially told the police that everything was fine, but Jane
ultimately let the officer know that she needed help. In her conversation with police,
she described the abuse that had occurred that day. The police arrested James, and a
grand jury later indicted him with violating the emergency protective order and with
felony assault bodily injury of Jane, a person with whom he had a dating relationship.
The underlying assault named in both offenses was James’s striking Jane with his hand
on or about April 13, 2018.5
The State gave notice that it intended to introduce evidence at trial of the
couple’s relationship, including Jane’s testimony about James’s controlling her in the
relationship; the physical and sexual abuse throughout it, including his tying her up;
their drug use; and his forcing her to steal to pay for drugs. The State also sought to
introduce evidence of the following specific incidents:
• January 8, 2018: James injured Jane by busting her lip and hitting her head,
resulting in a hospital visit;
• January 13, 2018: James sexually assaulted Jane with a broom, resulting in a
• January 21, 2018: James attempted to break into Jane’s sister’s home;
• February 10, 2018: Jane attempted to commit suicide and later the same day
tried to obtain help from a police officer;
• April 10, 2018: James was arrested for assaulting Jane, resulting in the issuance
of an emergency protective order;
• April 13, 2018: in addition to the assault alleged in the indictment, James
sexually assaulted Jane.
In a pretrial hearing, James objected to the admission of the evidence under
Rules of Evidence 403 and 404. The trial court determined that the evidence was
admissible and granted James a running objection. During trial, the trial court
admitted the proffered evidence over James’s objections. However, the trial court also
issued a limiting instruction to the jury before the jury heard any of the extraneousoffense evidence:
You are instructed that if there is any testimony before you in this case
regarding other crimes, wrongs, or acts committed by [James] against
[Jane], you cannot consider that testimony for any purpose unless you 6
find and believe beyond a reasonable doubt that [James] committed such
crimes, wrongs, or acts against [her], and then you may only consider
that testimony for the purpose of its bearing, if any, on the state of mind
of [James] and [of Jane] and the[ir] previous and subsequent
relationship . . . .
The trial court included a similar limiting instruction in the written jury charge.
In addition to the extraneous-offense evidence, the State sought to introduce
expert testimony. During the trial, the State called Kopsovich to testify as an expert
on the dynamics of domestic violence and to opine about the risk and level of lethality
in the relationship between James and Jane. After a Rule 705 hearing, James objected
that Kopsovich was not qualified to testify as an expert, that her testimony was not
relevant, and that her testimony was inadmissible under Rule 403. The trial court
overruled his objections in part, ruling that Kopsovich could testify as an expert about
the cycle of violence and related power-and-control wheel4 but could not opine on the
The limiting instruction in the jury charge provided,
You are instructed that if there is any testimony before you in this case
regarding [James] having committed offenses other than the offense
alleged against him in the indictment in this case, you cannot consider
said testimony for any purpose unless you find and believe beyond a
reasonable doubt that [he] committed such other offenses, if any were
committed, and even then you may only consider the same in
determining the state of mind of [James] and [Jane]; and the previous
and subsequent relationship between the[m], if any, in connection with
the offense, if any, alleged against him in the indictment in this case, and
for no other purpose.
The power-and-control wheel is an educational tool used by domestic-abuse
counselors to help explain the domestic-abuse cycle. See Fernandez v. State, No. 02-18-7
risk or level of lethality in James and Jane’s relationship. At trial, Kopsovich testified
generally about domestic violence and more specifically about the cycle of violence,
involving a tension phase, explosion phase, and honeymoon phase, and the powerand-control wheel, which showed different ways in which an abuser uses and
maintains power and control over the person abused.
In both issues, James complains of the admission of evidence.
A. Standard of Review
We review the trial court’s admission of evidence for an abuse of discretion,
which the record shows only when the ruling falls outside the zone of reasonable
disagreement. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016); Wall v.
State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006); Merrick v. State, 567 S.W.3d 359,
375 (Tex. App.—Fort Worth 2018, pet. ref’d). We also review a trial court’s ruling on
an expert’s qualifications for an abuse of discretion. Rhomer v. State, 569 S.W.3d 664,
669 (Tex. Crim. App. 2019); Rodgers v. State, 205 S.W.3d 525, 527–28 (Tex. Crim. App.
2006). We will uphold the trial court’s correct decision under any applicable legal
theory even if the trial court gave a wrong or incomplete reason for its ruling. De la
Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009); Qualls v. State, 547 S.W.3d
663, 675 (Tex. App.—Fort Worth 2018, pet. ref’d).
00483-CR, 2020 WL 1057323, at *2 (Tex. App.—Fort Worth Mar. 5, 2020, pet. filed)
(mem. op., not designated for publication).8
B. Admissibility of Evidence of Extraneous Offenses
In his first issue, James complains about the trial court’s admission of the
State’s evidence proffered under Article 38.371 of the Code of Criminal Procedure.
1. The Extraneous Offense Evidence Admitted
James complains about the admission of evidence of extraneous offenses
including physical assaults against Jane other than the assault charged in the instant
offenses, criminal mischief, thefts, illegal drug possession, burglary of a habitation,
aggravated kidnapping, and aggravated sexual assaults as well as testimony that he
emotionally and verbally abused Jane, forced her to use crack cocaine and to steal to
support their drug habit, and tormented her so much that she attempted suicide. The
evidence about which he complains is detailed in his statement of facts and in the
State’s response to his first issue. Specifically, the jury heard extraneous-offense
evidence from the following witnesses:
Mary, Jane’s sister, testified that Jane and James stayed with her early in their
relationship.5 Although Mary never saw James hit Jane and never saw any bruises,
Mary did hear and see signs of abuse, including noises that sounded like body-slams,
Jane’s crying, and “maybe like redness” on Jane’s dark skin.
The evidence showed that Jane was homeless.9
On January 21, 2018, James was angry and went to Mary’s home to talk to Jane.
The women would not let him in, so he tried to force his way into the home, breaking
the front door. Mary called the police.
6 The women had moved furniture to block that
entry, so James went to the back of the house and broke a window. James left before
the police arrived.
That same day, Mary had seen Jane in the couple’s bedroom with her hands
tied behind her back and with her feet bound. Mary did not report this fact to the
police because she “only told them what” Jane had “told her to say.”
b. FWPD Officer Dispatched to Mary’s Home on January 21, 2018
FWPD Officer Dana Atkins went to Mary’s home on January 21, 2018, in
response to the 911 calls. Officer Atkins remembered (after reviewing her report) that
a door had been damaged; that Mary, Jane, and Mary’s minor daughter had been
present; and that the detective in charge had ultimately mailed the absent James a
ticket as a result of his reported conduct.
c. FWPD Officer That Jane Encountered on February 10, 2018, at a Gas Station
FWPD Officer Jeril Landry encountered Jane inside a QuikTrip gas station on
February 10, 2018, at the end of his shift. He testified that Jane flagged him down and
told him that someone was following her. Officer Landry believed that Jane was
trying to ask for help “without making it obviously super apparent to everybody
A recording of Mary’s two 911 calls to the FWPD regarding this incident was
admitted into evidence after defense counsel stated, “No objection.”10
around that she needed help.” She appeared very odd, with a strange demeanor, and
was standoffish, like she was under duress and could not speak freely. He thought at
the time that she could possibly be under the influence of drugs. Officer Landry and
Jane went outside to his police car, where she told him that her significant other was
following her around and “not letting her [be] free to do what she wanted to do.”
Officer Landry called for backup, but he was not able to locate James after backup
arrived. The arriving officers took over the case, and Jane, who appeared scared to
leave the gas station by herself, was transported to a nearby location.
d. FWPD Officer Who Helped Jane Obtain the Emergency Protective Order
FWPD Officer Natasha Bender testified that on April 10, 2018, she was
dispatched to a local restaurant on a domestic assault call. She did not find James and
Jane in the restaurant but found them at a nearby store. Jane seemed upset and scared.
After speaking to Jane, Officer Bender determined that James had assaulted Jane by
punching her in the temple multiple times. Although Officer Bender did not recall
seeing injuries on Jane, the officer noted that the temple does not always reveal
bruising. Officer Bender helped Jane fill out a family violence packet and filled out an
application for an emergency protective order on Jane’s behalf to protect her from
James. The emergency protective order, signed the next day by a magistrate,
prohibited James from communicating with Jane or going within 500 feet of her
residence for approximately two months.11
Jane testified about her relationship with James, the specific instances of abuse
discussed by other witnesses, and the circumstances leading up to the charged
offenses. She explained that she met James in 2017, and they began dating shortly
after meeting. The relationship started off well, but James soon became angry, jealous,
Jane testified that James was verbally, emotionally, physically, and sexually
abusive. He first physically abused her outside his cousin’s apartment one to three
months after they began dating. In that first incident, James hit her several times,
body-slammed her, and hit her head on a vehicle. The security guard called the police,
but Jane told the police that James did not do anything because she cared about him.
James left Jane with his truck and went to stay with his child’s mother for a couple of
days. Jane remained with the truck and remained in the relationship.
Jane testified that the violence in their relationship escalated from that first
assault. James forced Jane to engage in sexual acts with him against her will. He was
verbally and emotionally abusive every day, putting her down and often threatening to
kill her, and the physical abuse continued daily as well. He would hit her with his
hands. Jane stated that the physical abuse did not always leave marks, but it often did.
Jane testified that James introduced her to crack cocaine and encouraged her to
use it. She became addicted, and they used crack cocaine together every day. James
made her steal things so they could sell the items for drugs or whatever else he 12
decided to spend the money on. Jane also indicated that James would not let her have
a phone except for noticeably short periods when he sent her on drug buys, would
isolate her from her family, and beginning about five months into the relationship,
would tie her legs together at night so she could not leave him.
Jane testified about some specific incidents of abuse. Once, James sexually and
physically assaulted her after accusing her of having sex with a drug dealer. On
another occasion, James busted her lip and hit her in the head, causing a contusion.
Jane went to the hospital on January 8, 2018, for treatment for those injuries.
However, James remained by her side at the hospital. Jane told the doctor that she
had sustained her injuries in a fight with random people. She did not want to tell the
doctor that James had injured her because he was present during the conversation and
she was scared.
Within a week, Jane went to the hospital again. This time, she had a yeast
infection and vaginal bruising caused by James’s forcing her to penetrate herself
vaginally with a broom as punishment. Jane did not tell hospital personnel about the
abuse because she wanted to protect James.
Jane also testified about the January 21, 2018 incident in which James
attempted to break into her sister’s home. The couple had begun arguing while
donating plasma nearby. Jane then ran to Mary’s home, and he followed. He
repeatedly threatened to kill Jane if she did not let him in. Jane testified that she did
not let James in because she was afraid. She stated that James broke the front door13
and back window. Jane believed the case just subsided because she “never went ahead
and pushed anything through or forward.”
On February 10, 2018, James verbally and physically abused Jane again.
Because of the emotional toll the abusive relationship had taken on her, Jane took a
bottle of Benadryl pills. An ambulance transported her to the hospital due to her
suicide attempt, but she was released that same day. After her release, the couple went
to Mary’s home. Jane admitted that she was then “talking crazy” and “making no
That evening, Jane and James left Mary’s home and walked to a nearby
QuikTrip. James had been very mad and had threatened to kill Jane. She ran around
inside the store, trying to avoid him. She finally ran outside, saw Officer Landry, and
asked him for help. James left while Jane was talking to the police officer, so the
police took her to a safe location. At trial, Jane could not remember whether the
police took her to Safe Haven or her sister’s home.
Jane next discussed the incident that occurred on April 10, 2018, and that
prompted the emergency protective order. She and James went to a local restaurant to
sell some stolen items. While there, Jane whispered to a woman she recognized from
previous visits that she needed help but then left with James. The woman called the
police. The police found the couple at a store nearby. This time, James stayed when
police arrived. Instead of protecting James like she had in the past, Jane told the police
about the abuse James had inflicted on her. Jane testified that she told the truth 14
because the violence had escalated, she was scared, and she wanted to get away from
James but could not. The police arrested James that night, Jane went to Safe Haven,
and she obtained an emergency protective order against him the next day, April 11,
2018. Jane did not believe that the protective order would really protect her from
James, and she was correct.
Jane explained that James was released from jail on April 12, 2018, and that she
heard about his release from people in the neighborhood. His release concerned her.
That same day, he found her smoking crack at a crack house and led her out. Other
people were present at the crack house; there was no evidence in the record that
James had a weapon. However, Jane testified that by “charg[ing]” her and by telling
her that he would kill her if she did not leave with him, James forced her to leave the
crack house with him. Jane testified that James repeatedly told her that he was going
to kill her that day because she was responsible for his going to jail, and she further
testified that he sexually and physically assaulted her numerous times throughout that
The death threats, physical abuse, and sexual abuse continued the next day,
April 13, 2018. Jane specifically stated that James hit her in the head and face with his
hands and fists, and he hit her in the legs with a stick. Jane also stated that James
anally raped her twice.
That night, they went to a 7-Eleven because James wanted Jane to steal him a
beer. While there, in addition to stealing a beer for James, Jane surreptitiously let 15
another shopper know that she needed help and asked him to call the police but to
wait until after she left the store. The shopper contacted the police, who found the
couple in a park behind the 7-Eleven. The police asked James and Jane if they were
okay. They both said yes, but afterward, when James was not looking, Jane signaled to
the officer that she needed help.
The police separated James and Jane to further investigate. In Jane’s
conversation with police, she described the abuse she had endured. She testified that
she told the police the truth because she believed that James was going to kill her that
night, that she was really in danger, and that she needed to get away from him but
could not. The police ultimately arrested James.
2. Admissibility under Rule 404(b) and Article 38.371
In a pretrial hearing, the trial court determined that the extraneous-offense
evidence detailed above was admissible under Article 38.371 because “the statute
specifically allows any testimony regarding the nature of the relationship between the
actor and the alleged victim” and “all of the [extraneous] acts [proffered by the State]
are between the accused and the alleged injured party.” The trial court later admitted
the evidence during trial over James’s objections but gave an oral limiting instruction
before admitting it and a written limiting instruction in the guilt-innocence jury
On appeal, James argues that the trial court abused its discretion by admitting
the extraneous-offense evidence because it was offered to show that he acted in 16
conformity with his character, in violation of Rule 404(b). See Tex. Code Crim. Proc.
Ann. art. 38.371(b); Tex. R. Evid. 404(b). Rule 404(b) of the Texas Rules of Evidence
limits character evidence, but it is nevertheless a rule of inclusion. Tex. R. Evid.
404(b); De La Paz, 279 S.W.3d at 343; Nash v. State, No. 02-17-00236-CR,
2018 WL 4495440, at *6 (Tex. App.—Fort Worth Sept. 20, 2018, pet. ref’d) (mem.
op., not designated for publication). Rule 404(b) precludes the admission of evidence
of a crime, wrong, or act solely to prove a person’s character to show that he acted in
conformity with that character on a particular occasion, but the rule allows for such
evidence to be admitted for other purposes, “such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
Tex. R. Evid. 404(b)(2). Those listed purposes “are neither mutually exclusive nor
collectively exhaustive.” De La Paz, 279 S.W.3d at 343.
Article 38.371, which applies to family-violence prosecutions, provides another
non-character-conformity purpose for admitting extraneous-offense evidence. See
Tex. Code Crim. Proc. Ann. art. 38.371. Although the statute explicitly prohibits the
admission of character evidence that is otherwise prohibited by the Rules of Evidence
or other laws, it expressly allows “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 accused and the complainant. Id. art. 38.371(b), (c). Thus, Article
38.371(b) expressly allows extraneous-offense evidence regarding the nature of the 17
relationship between an accused and a complainant. Mourning v. State, No. 02-19-
00168-CR, 2020 WL 6165309, at *4–5 (Tex. App.—Fort Worth Oct. 22, 2020, no
pet.) (mem. op., not designated for publication); Franco v. State, No. 08-18-00040-CR,
2020 WL 3168560, at *8 (Tex. App.—El Paso June 15, 2020, no pet.) (not designated
for publication) (“[T]he Legislature has determined under article 38.371 that the
nature of the relationship itself is a permissible, non-character-conformity purpose for
which evidence is admissible.”) (citing Tex. Code Crim. Proc. Ann. art. 38.371(b);
Tex. R. Evid. 404(b)(2); Fernandez v. State, 597 S.W.3d 546, 564–66 (Tex. App.—El
Paso 2020, pet. ref’d)).
All the extraneous-offense evidence James complains of shows the nature of
his relationship with Jane and was admissible under Article 38.371(b) and Rule 404(b)
on that basis. Thus, we hold that the evidence was admissible for the same reason the
trial court ruled it admissible—it concerned James and Jane’s relationship, a purpose
that is not character conformity. See Tex. Code Crim. Proc. Ann. art. 38.371(b); Tex.
R. Evid. 404(b); Mourning, 2020 WL 6165309, at *4–5; Franco, 2020 WL 3168560, at
*8; Fernandez, 597 S.W.3d at 564–66.
James contends that he did not raise a defensive theory that would justify the
admission of the State’s proffered extraneous bad-act evidence. While we disagree—
James’s defensive theory was that Jane lied about the abuse to the police and at trial,
as seen in our discussion of his Rule 403 complaint below—we do not further address
that contention in our Rule 404(b) discussion, given our disposition upholding the
trial court’s admissibility ruling on the ground that the challenged evidence shows the
nature of the couple’s relationship. See Tex. Code Crim. Proc. Ann. art. 38.371(b);
Tex. R. Evid. 404(b); Tex. R. App. P. 47.1.18
3. Propriety of Trial Court’s 404(b) Analysis
James further argues that even if the evidence was admissible, the trial court did
not conduct a proper analysis under Rule 404. We reject this argument. The trial
court’s ruling tracks Article 38.371, which governs trials involving family-violence
offenses, explicitly references the Rules of Evidence, and implicitly references Rule
404. See Tex. Code Crim. Proc. Ann. art. 38.371. Further, while we have authority to
uphold the trial court’s ruling on any correct legal basis, see De La Paz, 279 S.W.3d at
344, we have upheld it on the explicit ground cited by the trial court. We therefore
hold that the trial court’s analysis was proper.
4. Admissibility under Rule 403
James also argues within his first issue that even if the extraneous-offense
evidence is admissible under Rule 404(b), Rule 403 precludes its admission. Tex. R.
Evid. 403; see Tex. Code Crim. Proc. Ann. art 38.371(b). Evidence admissible under
Rule 404(b) may nevertheless be excluded under Rule 403 “if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.” Tex. R. Evid. 403; see Emich v. State, No. 02-18-
00059-CR, 2019 WL 311153, at *7 (Tex. App.—Fort Worth Jan. 24, 2019, no pet.)
(mem. op., not designated for publication). Rule 403 favors the admission of relevant
evidence and carries a presumption that relevant evidence is more probative than
prejudicial. Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (op. on 19
reh’g); Emich, 2019 WL 311153, at *7. It is the burden of the party opposing the
admission of the evidence to overcome this presumption by showing that the
probative value of the evidence is substantially outweighed by the danger of unfair
prejudice or by the other dangers listed in Rule 403. Wells v. State, 558 S.W.3d 661, 669
(Tex. App.—Fort Worth 2017, pet. ref’d); Sanders v. State, 255 S.W.3d 754, 760 (Tex.
App.—Fort Worth 2008, pet. ref’d).
When considering if evidence is admissible despite a Rule 403 objection, the
trial court must conduct a balancing test. Montgomery, 810 S.W.2d at 389. In
conducting the balancing test, a court must consider (1) the inherent probative force
of the proffered item of evidence along with (2) the proponent’s need for that
evidence and balance those factors against (3) any tendency of the evidence to suggest
a decision on an improper basis, (4) any tendency of the evidence to confuse or
distract the jury from the main issues, (5) any tendency that a jury that has not been
equipped to evaluate the probative force of the evidence would give it undue weight,
and (6) the likelihood that presentation of the evidence will consume an inordinate
amount of time or merely repeat evidence already admitted. Gigliobianco v. State,
210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006); Alami v. State, 333 S.W.3d 881,
889 (Tex. App.––Fort Worth 2011, no pet.).20
a. The Evidence’s Probative Force and the
State’s Need for the Evidence
The first two Gigliobianco factors assess “probative value,” Rule 403’s “first key
phrase.” 210 S.W.3d at 641. Probative value pairs “the inherent probative force of an
item of evidence—that is, how strongly it serves to make more or less probable the
existence of a fact of consequence to the litigation . . . with the proponent’s need for
that item of evidence.” Id. When the State has “other compelling or undisputed
evidence to establish” what the extraneous-offense evidence “goes to prove,” the
value of the extraneous-offense evidence is much less. Id. (internal quotation marks
omitted) (relying on Montgomery, 810 S.W.2d at 390).
James contends that the probative value of the extraneous-offense evidence
was limited. Relying on Payne v. State, No. 02-17-00268-CR, 2019 WL 2223575, at
*2 (Tex. App.—Fort Worth May 23, 2019, no pet.) (mem. op., not designated for
publication), he argues that in determining the extraneous-offense evidence’s
probative value, a court must look at the similarities between the extraneous offenses
and the charged offense. He implicitly argues that some of the extraneous offenses—
rape, sodomy, torture, and unlawful restraint—are too different from the “simple
assault” with which he was charged to be of much probative value. We did not
address the impact of dissimilar offenses in Payne. See id. What we actually stated in
Payne is that “[p]robative value considers ‘the closeness in time between the
extraneous offense and the charged offense’ and ‘the similarities between the 21
extraneous offense and the charged offense.’” Id. (quoting Kiser v. State, 893 S.W.2d
277, 281 (Tex. App.—Houston [1st Dist.] 1995, pets. ref’d)).
In this case, the timing of the offenses is key. The specific evidence of rape,
sodomy, torture, and unlawful restraint that James emphasizes—and most of the
other extraneous-offense evidence—concerns acts that occurred during a period of
less than four months that culminated in James’s April 13, 2018 arrest. That evidence
therefore had probative value as to his intent to commit the charged offenses. See
Robinson v. State, 701 S.W.2d 895, 898–99 (Tex. Crim. App. 1985), Flores v. State,
No. 03-19-00489-CR, 2020 WL 3887976, at *4 (Tex. App.—Austin July 9, 2020, no
pet.) (mem. op., not designated for publication); Felipe v. State, No. 03-19-00508-CR,
2020 WL 3887974, at *5 (Tex. App.—Austin July 8, 2020, no pet.) (mem. op., not
designated for publication). Also, the extraneous-offense evidence was probative of
the nature of James’s abusive relationship with Jane, showing the patterns of abuse
and the power and control that he had over her. Evidence of James’s patterns of
abuse of Jane helped the jury understand why she left the crack house with him, why
she remained with him April 12 and April 13, why she stole a beer for him on the
evening of April 13, and why her first reaction when the police arrived that evening
was to say that she was fine. See Emich, 2019 WL 311153, at *7.
Finally, the extraneous-offense evidence was also probative to rebut the
defensive theory of fabrication. Defense counsel built the groundwork for the theory
during voir dire, when he talked about judging witness credibility and assessing 22
motivation. In the defense’s opening statement, defense counsel indicated that the
case was going to be about Jane’s credibility. He stated that no physical evidence
corroborated the “stories . . . from [Jane] and her sister” and there was no evidence of
physical injuries from the charged offenses. He conceded that “[t]he protective order
violation happened” but contended that it happened because James could not “get
away” from Jane. Defense counsel told the jury that Jane knew that any time the
police were called, James would go to jail, not her, even when she was caught stealing.
He also told the jury to “remember motivation bias for why” witnesses testify.
As the State points out, evidence of prior assaults and abuse makes it less likely
that a complainant has fabricated the charged offenses. Foster v. State, No. 01-17-
00537-CR, 2018 WL 1914871, at *5 (Tex. App.—Houston [1st Dist.] Apr. 24, 2018,
pet. ref’d) (mem. op., not designated for publication); Martin v. State, Nos. 02-07-308-
CR, 02-07-309-CR, 02-07-310-CR, 02-07-311-CR, 02-07-312-CR, 02-07-313-CR, 02-
07-314-CR, 02-07-315-CR, 02-07-316-CR, 2008 WL 4831345, at *12–13 (Tex. App.—
Fort Worth Nov. 6, 2008, pet. ref’d) (mem. op., not designated for publication).
Therefore, the evidence of James’s prior assaults and abuse against Jane showed the
jury that it was less likely that she fabricated the charged offenses.
For all these reasons, we hold that the probative value of the extraneousoffense evidence was strong. See Foster, 2018 WL 1914871, at *5; Martin,
2008 WL 4831345, at *12–13.23
The State also had a strong need for the extraneous-offense evidence because
no one witnessed the charged offenses, Jane had no evident injuries, and her
credibility was at issue. See Emich, 2019 WL 311153, at *7; Sarabia v. State, 227 S.W.3d
320, 324 (Tex. App.—Fort Worth 2007, pet. ref’d) (concluding, in case involving
aggravated sexual assault of a child, that the State’s need to show the jury the
defendant’s pornographic photographs of children was high because no one
witnessed the assault, there was no DNA or physical evidence from the assault, the
defense had challenged the complainant’s credibility, and besides the photographs, the
State had only the complainant’s testimony with which to meet that challenge). In the
absence of any witnesses to the charged offenses, the extraneous-offense evidence
rebutted the fabrication defense and supported the State’s allegations that James was
responsible for the protective-order violation and that he hit Jane.
These two factors weigh in favor of admission.
b. Tendency of the Evidence to Suggest a Decision on an Improper Basis
The third Gigliobianco factor concerns Rule 403’s “second key phrase, ‘unfair
prejudice.’” 210 S.W.3d at 641. Unfair prejudice “refers to a tendency to suggest [a]
decision on an improper basis, commonly, though not necessarily, an emotional one.”
Id. Evidence is not excludable under Rule 403 if it is merely prejudicial; “all evidence
against a defendant is . . . designed to be prejudicial.” Pawlak v. State, 420 S.W.3d 807,
811 (Tex. Crim. App. 2013); see Tex. R. Evid. 403. Rule 403 is concerned not with 24
prejudicial evidence but with evidence that is unfairly prejudicial. Tex. R. Evid. 403;
Pawlak, 420 S.W.3d at 811.
James contends that the extraneous-offense evidence was extremely prejudicial.
He relies only on Payne, in which this court determined that evidence of prior, similar
assaults to the charged offense was “necessarily prejudicial” but “not unfairly so.”
2019 WL 2223575, at *2. James posits that in the case before us, the seriousness of
some of the extraneous offenses—rape, sodomy, torture, and unlawful restraint—as
compared to the “simple assault” with which he was charged and on which the
protective order violation was based shows that the extraneous-offense evidence is
“undoubtedly extremely prejudicial.” James cites no cases that directly stand for that
proposition. Nevertheless, in the interest of justice, we recognize that the trial court
could have reasonably determined that the evidence that James raped, sodomized,
tortured, and unlawfully restrained Jane could have tended to suggest verdicts on the
charged offenses on the improper basis of character conformity. See Flores,
2020 WL 3887976, at *4.
When evidence does tend to suggest a decision on an improper basis, however,
a limiting instruction can minimize the risk of the jury improperly relying on it in
reaching its verdict. Id.; Norwood v. State, No. 03-13-00230-CR, 2014 WL 4058820, at
*5 (Tex. App.—Austin Aug. 15, 2014, pet. ref’d) (mem. op., not designated for
publication). The trial court gave a limiting instruction before the extraneous-offense
evidence was admitted and again in the jury charge. In the instructions, the trial court25
informed the jury that it could consider the extraneous-offense evidence only if the
jury determined beyond a reasonable doubt that James had committed the prior
offenses and then only to determine James’s and Jane’s mental states and their
relationship, if any, in connection with the charged offenses. We presume that the jury
followed the trial court’s limiting instructions. See Thrift v. State, 176 S.W.3d 221,
224 (Tex. Crim. App. 2005); Flores, 2020 WL 3887976, at *4; Gaytan v. State,
331 S.W.3d 218, 228 (Tex. App.—Austin 2011, pet. ref’d). James does not attempt to
rebut this presumption. See Thrift, 176 S.W.3d at 224.
James also does not raise any specific challenge to the prejudice arising from
the admission of the extraneous-offense evidence that is similar in nature and
seriousness to his charged offenses, such as the evidence that he hit Jane in the head
in January 2018 and caused a contusion. Such a challenge would fail because that
evidence, while prejudicial, was not unfairly so. See Payne, 2019 WL 2223575, at *2;
Norwood, 2014 WL 4058820, at *5.
Accordingly, we hold that this third factor weighs in favor of admission of the
extraneous-offense evidence that is not more heinous than the charged offenses. As
to the evidence concerning James’s raping, sodomizing, torturing, and unlawfully
restraining Jane, we hold that the factor weighs against admission, but only
moderately, given the impact of the two limiting instructions.26
c. Tendency of the Evidence to Confuse or Mislead the Jury
Gigliobianco’s fourth factor addresses Rule 403’s “third key phrase, ‘confusion of
the issues.’” 210 S.W.3d at 641. Confusion of the issues alludes to the likelihood that
the evidence would confuse the jury or distract them from the case’s central issues. Id.
“Evidence that consumes an inordinate amount of time to present . . . might tend to
confuse or distract the jury from the main issues.” Id.
James summarily concludes that the challenged evidence had the potential to
confuse the issues. While he does complain that the State “inundated” the jury with
extraneous-offense testimony for most of the trial, and he does discuss the number of
witnesses and the fact that most of the extraneous-offense evidence was admitted
before Jane testified, he has failed to include any analysis or argument to connect
those facts to his conclusion. We decline to make his arguments for him. See Jackson v.
State, 424 S.W.3d 140, 155 (Tex. App.—Texarkana 2014, pet. ref’d); see also Tex. R.
App. P. 38.1(i).
The State contends that the extraneous-offense evidence did not confuse or
distract the jury from the main issues in this case but instead presented the jury with a
more complete picture of the cycle of violence between James and Jane, helping the
jury understand Jane’s behavior on the day of the offense. We agree. See Emich,
2019 WL 311153, at *7. Moreover, James was arraigned on the charges in the jury’s
presence; the trial court issued oral and written limiting instructions prescribing how
the jury should use the extraneous-offense evidence, if at all; and the jury charge and 27
verdict forms made clear that the jury’s job was to determine whether James was
guilty or not guilty of the charged offenses. We therefore hold that this factor weighs
in favor of admission.
Gigliobianco’s fifth factor focuses on Rule 403’s “fourth key phrase, ‘misleading
the jury.’” 210 S.W.3d at 641. This factor involves the likelihood that a jury will place
too much weight on the evidence for some reason not involving emotion. Id. “For
example, ‘scientific’ evidence might mislead a jury that is not properly equipped to
judge the probative force of the evidence.” Id.
James contends that the extraneous-offense evidence had the tendency to
mislead the jury. However, he does not tell us why. He has failed to include any
record citations, analysis, or argument to support his contention. Again, we decline to
make his arguments for him. See Jackson, 424 S.W.3d at 155; see also Tex. R. App. P.
The State argues that the extraneous-offense evidence was not the type of
evidence to mislead the jury. Our review of the record shows that the extraneousoffense testimony was from lay witnesses, not experts, and it described the various
abusive incidents in a factual manner. None of the extraneous-offense evidence was
scientific or complex. See Gigliobianco, 210 S.W.3d at 641. We hold that the fifth factor
also weighs in favor of admission.28
d. Likelihood of Undue Delay and Needless Repetition
Gigliobianco’s sixth factor concerns Rule 403’s “fifth and sixth key phrases,
‘undue delay’ and ‘needless presentation of cumulative evidence.’” Id. This factor
focuses on how efficient the trial is, not on the risk of an erroneous verdict. Id. James
complains that the extraneous-offense evidence “took up most of the trial” and that
only three of the State’s ten witnesses did not offer extraneous-offense evidence. He
also complains that much of the extraneous-offense evidence was cumulative. He
correctly contends that multiple witnesses testified about
• the January 21, 2018 incident in which he broke a door and his assault of
Jane that same day;
• Jane’s February 10, 2018 suicide attempt and later interaction with
• the April 10 incident leading to James’s arrest and the issuance of Jane’s
protective order against him.
The State acknowledges that its presentation of extraneous-offense evidence
consumed a large portion of James’s trial and that multiple witnesses testified about
the same extraneous offense. The State concedes that this factor weighs in favor of
exclusion of the evidence. We agree with the parties that it does.
Balancing all six factors, we hold that the trial court did not abuse its discretion
by determining that the probative value of the extraneous-offense evidence was not
substantially outweighed by the risk of “unfair prejudice, confusing the issues, 29
misleading the jury, undue delay, or needlessly presenting cumulative evidence.” Tex.
R. Evid. 403, see Flores, 2020 WL 3887976, at *5. Five out of the six Gigliobianco factors
favor admission of the similar extraneous-offense evidence, and four of the six factors
favor admission of the evidence of rape, sodomy, torture, and unlawful restraint. See
210 S.W.3d at 641–42. The probative value of the extraneous-offense evidence was
high in that it rebutted James’s fabrication defense, and the State’s need for it was also
high, both to rebut that defense and to shore up its own case in chief, given the attack
on Jane’s credibility, the absence of other witnesses to the charged offenses, and the
absence of physical evidence of injury. James did not present any analysis showing
that the evidence confused or misled the jury; the extraneous-offense evidence was
not complicated. The similar extraneous-offense evidence was not unduly prejudicial,
given its probative value, and even though the evidence of the extraneous offenses
James emphasizes—rape, sodomy, torture, and unlawful restraint—certainly had the
potential to sway the jury to improperly convict James based on character conformity,
the trial court’s limiting instructions sufficiently diminished that risk.
5. Propriety of Trial Court’s Rule 403 Analysis
James further argues that even if the evidence was admissible, the trial court did
not conduct the required balancing test. A trial court must conduct a balancing test
upon a Rule 403 objection. Santellan v. State, 939 S.W.2d 155, 173 (Tex. Crim. App.
1997); see Gigliobianco, 210 S.W.3d at 641–42. However, a trial court is not required to
perform the balancing test on the record, and when the record is silent, appellate 30
courts must presume that the trial court performed the appropriate balancing test
before admitting the evidence. Williams v. State, 958 S.W.2d 186, 195–96 (Tex. Crim.
App. 1997); Jackson, 424 S.W.3d at 155.
James argues that it was impossible for the trial court to conduct the test
because virtually all the witnesses testifying about extraneous-offense evidence
testified before Jane. However, defense counsel introduced the defensive theory of
fabrication during voir dire, discussing witness credibility and a witness’s motivation,
before the preliminary hearing occurred. Further, the State argued in the preliminary
hearing that the extraneous-offense evidence was relevant to show the couple’s
relationship, Jane’s inability to leave, the power and control James had over her, and
the danger the relationship represented for her. Finally, in the defense’s opening
statement, defense counsel indicated that the case was going to be about Jane’s
credibility. We therefore hold that nothing on the record defeats the presumption that
the trial court conducted the proper Rule 403 balancing test before admitting the
We overrule James’s first issue.
C. Qualification of Expert Witness and Relevance of Her Testimony
In his second issue, James complains that the trial court abused its discretion by
allowing Kopsovich to testify as an expert about the cycle of violence because she was 31
unqualified and because her testimony about the cycle of violence was not relevant.
He does not otherwise challenge her remaining testimony.8
1. Substantive Law
Rule 702 of the Texas Rules of Evidence governs the admissibility of expert
testimony. That rule allows a witness who is “qualified as an expert by knowledge,
skill, experience, training or education” to “testify in the form of an opinion or
otherwise if [her] scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue.” Tex. R. Evid.
702. Hence, three conditions must be met before expert testimony is admitted: (1) the
witness qualifies as an expert by reason of her knowledge, skill, experience, training,
or education; (2) the testimony’s subject matter is appropriate for expert testimony;
and (3) admitting the expert testimony will aid the factfinder in deciding the case.
Rhomer, 569 S.W.3d at 669. These conditions are commonly referred to as
(1) qualification, (2) reliability, and (3) relevance. Id. James challenges qualification and
Although James also objected at trial under Rule 403 and repeats the
Gigliobianco factors within his discussion of this issue, he does not raise the Rule
403 complaint as part of his second issue on appeal. See Tex. R. App. P. 38.1(f).
Specifically, he does not allege that the probative value of Kopsovich’s testimony was
substantially outweighed by a risk of undue prejudice, confusion of the issues,
misleading the jury, undue delay, or the needless presentation of cumulative evidence,
and he does not include any analysis or argument on the matter. To the extent his
recitation of the law on Rule 403 was an attempt to raise the complaint, we overrule it
as inadequately briefed. See Jackson, 424 S.W.3d at 155; see also Tex. R. App. P. 38.1(f),
relevance but otherwise acknowledges that Texas courts have found expert testimony
about domestic violence to be admissible under Rule 702.
2. Qualification of Expert
James argues that Kopsovich was not qualified to give expert testimony.
Appellate courts rarely disturb a trial court’s expert qualification decision. Rodgers,
205 S.W.3d at 528 n.9. “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.” Id. at 527–28. A trial court does not abuse its discretion by allowing an expert
witness to testify about domestic violence in general and the typical behaviors of
victims of abuse even though the witness has no personal knowledge of the defendant
and victim. Nwaiwu v. State, No. 02-17-00053-CR, 2018 WL 3763899, at *3 (Tex.
App.—Fort Worth Aug. 9, 2018, pet. ref’d) (mem. op., not designated for
publication); Scugoza v. State, 949 S.W.2d 360, 363 (Tex. App.—San Antonio 1997, no
Our review of the record of the Rule 705 hearing pertaining to Kopsovich’s
qualifications shows that she:
• had never talked to Jane;
• had not testified as an expert in a trial before;
• did not review articles or other scholarly works before testifying;
• had never published works on domestic violence;33
• had never counseled a victim of domestic violence but had advocated
• had a master’s degree in social work and was a licensed social worker;
• currently supervised Safe Haven’s clinical, crisis-and-outreach, and legal
departments but rarely had one-on-one client contact in that position,
which she had held for two years;
• was previously the director of Safe Haven’s crisis-and-outreach
• had worked at Safe Haven for fifteen years, including directly with
approximately 1,000 domestic-violence victims;
• had served in the following other positions at Safe Haven: government
grant writer, shelter director, case management coordinator, house case
manager, shelter case manager, and lead child advocate;
• had taught a “domestic violence 101” class to victims at Safe Haven;
• had participated in and facilitated many trainings;
• was currently teaching a graduate course on intimate partner violence;
• understood domestic violence, the cycle of violence, and the power-andcontrol wheel because of her experience; and
• could explain domestic-violence types and patterns, the cycle of violence,
and the power-and-control wheel.
James argues that Kopsovich’s lack of a psychology specialization as well as the
items listed above that she had not done disqualify her from testifying as a domesticviolence expert. Given our review of the record, which demonstrates Kopsovich’s
training and experience and what she has accomplished in the domestic-violence field,
Kopsovich clarified before the jury that she was a licensed master social
we conclude that the trial court did not abuse its discretion by finding that she was
qualified to offer expert testimony about domestic violence, including the cycle of
violence and the power-and-control dynamic. See Nwaiwu, 2018 WL 3763899, at *3–
4 (holding a licensed marriage and family therapist who worked with domesticviolence victims was qualified to give expert testimony on domestic violence,
including the cycle of violence, and citing similar cases).
3. Relevance of Expert Testimony
James argues that Kopsovich’s testimony about the cycle of violence was not
relevant because the case was very straightforward, Jane cooperated with the State,
she did not recant or reconcile with James, and she never testified that she had
experienced the cycle of violence because she discussed no honeymoon period.
Before the jury, Kopsovich testified as follows about domestic violence, the
cycle of violence, and the power-and-control wheel:
• Power and control are at the core of domestic violence.
• Abuse is a pattern of behavior rooted in power and control.
• Abuse can take many forms: emotional, verbal, sexual, financial, and
spiritual are the most common.
• Abusers can use physical and sexual abuse but also coercion and threats,
intimidation, isolation, minimizing, denial, blame, and male privilege to
maintain power and control.
• The power-and-control wheel is a tool used to illustrate domestic
• At the center of the wheel are power and control, and each spoke of the
wheel represents a different type of abuse, but all have the same goal of
exerting power and control.
• The cycle of violence consists of a circular pattern of three phases:
tension building, explosion or violence, and honeymoon.
• The cycle repeats over time and can get faster.
• A complete cycle can occur in a day.
• The honeymoon phase may be absent from the cycle; the cycle may go
back and forth between tension building and the explosion.
• Average national statistics show it takes a woman seven to nine times to
permanently leave a relationship.
• Emotional abuse depletes victims’ self-esteem.
• Isolation limits a victim’s ability to leave the relationship.
• Homeless victims may stay in the relationship because they are
• Victims often feel hopeless after calling law enforcement.
• Victims often self-medicate with drugs and alcohol.
• It is common for victims to attempt suicide.
The testimony was relevant. The average juror will not typically be familiar with
the effect of domestic violence on victims and the dynamics of the relationship
between an abuser and victim. See Fernandez, 2020 WL 1057323, at *4; Nwaiwu,
2018 WL 3763899, at *3–4. The cycle of violence and the power-and-control wheel
are generally accepted terms and tools that experts on domestic violence use to
explain the general relationship between an abuser and victim. See Fernandez, 36
2020 WL 1057323, at *4; Nwaiwu, 2018 WL 3763899, at *3–4; Runels v. State, No. 03-
18-00036-CR, 2018 WL 6381537, at *7 (Tex. App.—Austin Dec. 6, 2018, pet. ref’d)
(mem. op., not designated for publication).
James’s arguments that the evidence is not relevant are unavailing. He cites no
authority for the proposition that experts can testify about domestic violence only
when the victims refuse to testify, recant, or reunite with their abusers. Further, our
review of the record shows that the couple did experience the cycle of violence. Mary
testified that Jane and James’s relationship seemed pretty good at first, then they
started not getting along, and then the abuse escalated. Jane testified that at first, she
“[f]elt like [their relationship] was like a movie. In the beginning, [she] was really
happy with him, and feelings grew really fast, and [she] really cared about him a lot.”
She testified that after the first physically abusive incident, she lied to the police
because she cared about James and that she stayed in the relationship because she
loved him. Thereafter, the abuse rose to a daily level. Although we agree with James
that no evidence showed a traditional honeymoon phase following abuse—our review
of the record showed no instance following abuse in which he apologized or gave her
gifts or they reconnected—Kopsovich’s testimony showed that that phase is not
necessary to the cycle.10
10Cf. Kara Bellew, Silent Suffering: Uncovering and Understanding Domestic Violence in
Affluent Communities, 26 Women’s Rts. L. Rep. 39, 41 (2005) (noting research
suggesting that in “upscale” domestic violence relationships, there is no honeymoon 37
Kopsovich’s testimony was relevant to help the average juror understand the
dynamics of the relationship between James and Jane (his controlling and isolating her
and their homelessness and addiction), why Jane would stay in an abusive relationship,
why she stole for James, why she left the crack house with him even though he had
no weapon, why she stayed with him for two days after that instead of walking away,
why she still stole a beer for James after asking a bystander to call the police, and why
her first response when the police arrived in response to the bystander’s call was to
say she was fine. For all these reasons, the trial court did not abuse its discretion by
allowing Kopsovich to testify. See Nwaiwu, 2018 WL 3763899, at *4. We overrule
James’s second issue.
Outcome: Having overruled James’s two issues, we affirm the trial court’s judgments.