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Austin, Texas – Criminal Defense lawyer represented Appellant with a burglary of a habitation charge.
Kristin Ellington1 began a dating relationship with Martin in 2014. Martin lived
“off and on” with Ellington and her mother, Marcia Larson, at Larson’s home in Bulverde,
Texas. Although at first the relationship was “great,” Ellington at trial testified to a series of
abusive incidents that occurred with Martin starting in 2016.
In November of that year, Ellington prepared chili for Martin, when he became
upset and demanded she try it. Ellington asked to go outside for some air as she was
hyperventilating, but Martin forbade her, blocking the door with a chair or table. Although she
could not remember why, Martin choked her “a couple of times.” He put his hands around her
neck and choked her “to the point where [she] was not coherent of what was going on around
[her]” and felt “[d]eath.” She was terrified and “was just praying that it wouldn’t last long
enough to do something to [her] where [she] wouldn’t be able to come back from.” During the
assault, her hearing “dissipated,” and she “checked out” and felt like she had “missed time.” The
choking began in her bedroom, “[o]n her bed” and then she “fell on the floor and it happened
1 The alleged victim’s name is variously spelled as “Kristin” and “Kristen” in the
Reporter’s Record. We will use the former, which is the spelling used in the indictment.
Ellington testified that if Martin said something, she could not hear it. His eyes
were “dark,” and he was “a different person.” As Martin was choking her, she tried to scream,
but he put a pillow over her head. When Ellington’s eighteen-year-old son, Luke, came home,
he heard her crying in the bathroom. Ellington grabbed him and pushed him outside because she
was concerned that he would get involved.
The Bulverde Police Department (BPD) was called, and responding officers took
photographs of Ellington’s injuries. The photographs, admitted over the objections of defense
counsel, depicted a red mark on the side of her face; her lip, which “was busted on – on the
inside”; and her neck.
Ellington testified that approximately four or five months before the chili incident,
but in 2016, she witnessed a second incident involving Luke. On that occasion, she and Martin
had gotten into an argument because Martin was “calling and calling,” and she would not answer
the phone so he came over. Martin pulled the screen off a window of the home, jumped through,
and “came to” Ellington. He took her hand and bent it back “really far,” which “made [her]
scream because it hurt.” He then grabbed her hair and pulled her head back and forth as she
screamed and cried. Luke, who had been napping on the other side of the house, came out and
ordered Martin to leave. Martin grabbed Luke in a chokehold and slammed him on the ground,
causing Luke’s head to hit the ground.
The third incident about which Ellington testified occurred in July 2017. Martin
demanded that Ellington perform oral sex on him. She “didn’t want to,” and Martin responded
that “if not, that – that tomorrow would be a bad day and he wasn’t going to let [her] sleep until
[she] did.” She understood his statement that “tomorrow will be a bad day” to mean that “it
would get violent” if she did not comply. Ellington performed oral sex on Martin during which
she cried and “felt just like nothing.”
The next morning Martin woke up still in a bad mood. He was upset because the
night before, Ellington had gone to a friend’s house where another man had been present. Martin
left the home in Ellington’s car, which he used without her permission. She texted him to bring
it back “and that he wasn’t going to be allowed to stay the night and so he needed to find another
place.” That night, she woke up to something sharp against her neck and saw Martin standing
over her. She testified that he had “the keys – or car keys had turned out – I didn’t know – I just
knew it felt like something sharp and I was, you know, scared from that.” Martin’s hand was
over her mouth, and he told her that he “already took care of [her] mother,” which she
understood to mean “[t]hat he hurt her or killed her.” She apologized to Martin “over and over
and over again so he would like stop what he was doing” and told him that he could stay.
Afterwards, Martin fell asleep.
The following morning Martin woke up “enraged or in a bad mood”; “that person
that he would turn into still was there.” Something happened to upset Martin while they were in
the bathroom, and he choked Ellington “up against” the wall. She felt “terror,” and when he
stopped, she told him “let’s just have a good day. Let’s have a good day, please just – we’ll have
a good day.” She testified that such statements were the only way to “get him to calm down”
and “talk him down off the ledge,” “if [they] worked.” When questioned whether she had asked
Martin to leave the home, Ellington was equivocal, explaining, “I don’t believe I told him that he
had to leave. I mean, I told him he had to leave because he couldn’t stay there anymore.”
At some point, Larson came into the bathroom, and Larson and Ellington walked
to the living room. Martin followed, and Ellington “started to try and like get away because
[she] thought he was . . . coming after [her].” She tried to “deter” him, but it did not work.
Martin grabbed Ellington’s hair and “started to jerk her head back and forth.” There “was
something else that happened,” but she was “blank.” Martin made Ellington and Larson sit on
the couch, and they tried to calm him down. Ellington testified that she thinks Martin next
ordered them into the bedroom. She could not recall specifically how he would not let them
leave the room but believed it was “more verbal” and not a “physical act.” Martin shut the door
to the bedroom, and Ellington described his demeanor: he was “very angry and he’s . . . that
person that I didn’t recognize again. I mean, . . . he was breathing heavy[,] and . . . he was very
angry.” Ellington started to “cry and sob,” which angered Martin “even more.” He took a thick
glass off her dresser, in which she put pennies and things, and broke it on the dresser. He then
ripped his shirt down the middle, wrapped it around his hand, grabbed a piece of glass, and
etched a line into the glass top of a nearby vanity. Ellington testified that “it was just kind of
implied that he was going to use that on us.” She stated that she could not recall whether Martin
made any statements while holding the glass, but later agreed that she told a detective at the time
that Martin had said “he was going to cut [their] throats.”
Both Ellington and Larson struggled frequently to recall certain facts and dates.
Ellington testified that “at the time and right now, I – I feel like my memory has dissipated with a
lot of this stuff. And that’s the one thing I can’t remember him saying.” However, she also
testified that she did not remember telling another officer “right after” the incident that Martin
“came right at [her] with the glass,” explaining, “I put a lot of it away for my own selfpreservation.” Nevertheless, she agreed that her memory would have been better when she made
the statements to the officers and that she had no reason to deny making the statements.
While Ellington and Larson were confined in the bedroom, Larson “got up to say
that she was going to go call the police,” when Martin grabbed her and pushed her into a
headboard or footboard of the bed. Ellington testified that Larson “kind of collapsed and then
she wet her pants.” When asked whether she felt free to leave, Ellington responded that she did
not “[b]ecause it was implied. He had the door closed and I knew better.” During that time, she
feared for her and her mother’s lives.
At that point, Luke came home, and Martin stated, “[G]et rid of him or I’ll kill
him.” Larson went to answer the door, and Ellington instructed her to tell Luke to go away
because she did not want him to be harmed. Larson had been gone for approximately five
minutes when Martin became restless and told Ellington to go out and find out what was going
on. She saw that Luke was walking back to his girlfriend’s house and told Larson “we’re
leaving, follow me, let’s go.” They went to a neighbor’s house and called the police.
After Ellington and Larson fled, Martin took Ellington’s car and left the house.
Eventually, he returned and was able to enter with Ellington’s keys. Ellington was confused as
to what happened next, stating that the incident in the bathroom “happened the next day when he
came back.” She then testified, “When he came in that night, he had keys to my throat that
night. I don’t know – that doesn’t make sense because they’re in the pictures [of the home’s
interior taken by BPD after Ellington and Larson called the police]. I don’t know. I’m just –.”
Ellington testified that she did not think she and Martin resumed their relationship after
Over defense counsel’s objections, the trial court permitted Ellington to testify in
a limited manner about a fourth incident occurring approximately three weeks after the July 2017
break-in. Ellington testified that she drove Martin to Kerrville, Texas, because he needed a place
to stay, and she was going to try to get him to stay with his friends. While there, another assault
involving choking or strangulation occurred, which, compared to the others, was the “worst
one.” At some point, Martin wanted Ellington to go somewhere with him, and she did not want
to go. Still, she complied and went with him because of a threat he made. The following day,
she met with someone from the Comal County District Attorney’s Office to obtain a protective
order against Martin. Lastly, Ellington testified that throughout the process, she had “wanted
to do what [she] could to help [Martin] and indicated that [she] wanted to drop charges at
On cross-examination, Ellington testified that Martin was staying at Larson’s
home at the time of the 2017 incident, was receiving his mail there, and had the right to be in the
home. Ellington was confused as to why the case involved a charge of burglary of a habitation.
She also testified that she had “indicated to [defense counsel] that [Martin] never actually made a
threat or a movement or – either physical or spoken to [her] with the glass in his hand,”
contradicting her contemporaneously recorded statements to the police, which were admitted at
trial. When asked whether it was true that Martin never exhibited the glass in a threatening
manner or stated “that he was going to do something to [her] with the glass,” Ellington replied,
“That’s what I remember.” She agreed that it was possible that at the time, she had told officers
“what [she] was thinking in [her] mind rather than what [she] actually perceived” Martin doing.
Larson, who was 81 years old at the time of trial, testified that during the
July 2017 incident, she and Ellington “were in one of the rooms in the house and that was in
there and we had a hard time trying to get out of there.” Martin would stop them from going to
the door, “pulling us back, whatever.” When asked whether Martin had made threats against
them, Larson responded, “I don’t remember exactly how they were, but yes, he was saying some
pretty scary things.” She testified that she was afraid Martin was going to hurt both of them and
that was “as much as [she] can remember at this time.” Asked if Martin put his hands on her, she
stated, “Occasionally if I got close to the door, he would pull me back or – you know, at one time
or another, yes.” When asked whether Martin pushed her, she replied, “Just – well, just did the
same thing when he was trying to keep us both in the room.” However, she testified that when
Martin was “doing that,” she “wasn’t in any pain at that time. No, just frightened.” Questioned
specifically as to whether she wet her pants, Larson stated, “I – I don’t recall.”
As with Ellington, Larson reported difficulties with her memory of the incident.
She did not recall calling 911 despite a recording of the call being played in court. She did not
recall Martin using a weapon or breaking anything in the room, stating, “Like I said, it’s been a
long time. I don’t recall anything there.” When asked whether she remembered some glass
being involved, however, Larson testified, “I think there was a piece of broken glass in – in
there, yes, if I remember correctly.” While she could not recall how the glass had come to be in
the room, she stated that she and Ellington “were a little afraid of what might happen . . . with
that.” When shown her contemporaneous statement to an officer, in which she stated that Martin
had come after them with the glass, Larson testified, “See I don’t – I don’t recall that at that time.
It’s been quite some time.” Larson read from her statement, “He threatened to kill me and my
daughter two times on 7-13-17, broke a glass jar, and came after us with the glass.” However,
she clarified, “I recall it as a different situation.”
Luke Ellington testified about the November 2016 incident and the prior incident
in which Martin had slammed him to the ground. Luke testified that he had seen marks on his
mom in the past, including black eyes, bruises on her arms, and red marks around her neck. The
jury heard from Luke’s ex-girlfriend; Kristopher Greenhill, a BPD officer who interviewed
Kristin and Luke after the November 2016 incident and responded to the July 2017 incident; and
Margaret Bassett, an expert in domestic violence and abusive relationship dynamics, who
testified to the characteristics of such relationships, common myths about them, and how trauma
can affect memory. Specifically, Bassett testified that the brain goes into “survival mode” during
a traumatic event, and, while it is possible that a victim of trauma may have no memory, victims
generally remember “salient points,” including that they have been sexually assaulted, as well as
During the charge conference, the defense, emphasizing Larson’s testimony that
she did not feel any pain, requested an instruction for the lesser-included offense of assault by
offensive contact. Following a discussion, the State responded, “I can agree that we can submit a
lesser on Count II. I mean, I’ll agree to that because I think that’s probably appropriate under the
law.” Although the trial court’s ruling is absent from the record, at some point the court granted
a directed verdict2 with respect to Count II, injury to an elderly individual.
The jury convicted Martin of burglary of a habitation with intent to commit a
felony other than theft, two counts of aggravated kidnapping, aggravated assault with a deadly
weapon, sexual assault, and assault family violence with a previous conviction. Consistent with
the trial court’s directed verdict, the jury acquitted Martin of injury to an elderly individual.
2 The record before us contains no order from the trial court. Rather, the existence of the
directed verdict was first made evident in the State’s closing argument and the jury charge at the
guilt-innocence phase of trial.
3 There was seemingly confusion among the parties as to when the trial court’s ruling
occurred, as evidenced by the State’s remark, “During this entire time that we’ve been sitting
here, I was under the impression that we were proceeding with the lesser-included of assault by
contact based on the defense’s request.”
Regarding Count V, alleging aggravated assault with a deadly weapon against Ellington, the jury
convicted Martin of the lesser-included offense of assault by threat.
Following a hearing on punishment, the trial court sentenced Martin to five years
for assault family violence, fifteen years for sexual assault, ten years for aggravated assault with
a deadly weapon, sixty years for each count of aggravated kidnapping, and life imprisonment for
burglary of a habitation, ordering that the sentences run concurrently. The court also assessed
Martin a $500 fine for assault by threat.
On appeal, Martin challenges (1) the constitutionality of Article 38.371 of the
Texas Code of Criminal Procedure, (2) the admission of evidence concerning the Kerrville
incident; (3) the admission of photographs from the November 2016 incident, and (4) the
propriety of a statement during the State’s closing argument concerning lesser-included offenses.
The State, in a single issue on cross-appeal, alleges that the trial court erred in ordering a directed
verdict of acquittal on the count of injury to an elderly individual.
I. Constitutionality of Article 38.371
In his first issue, Martin contends that Article 38.3714 is facially unconstitutional5
because it violates a defendant’s right to be tried for one offense at a time and permits the State
4 Article 38.371 provides that in the prosecution of certain domestic violence offenses,
each party may offer, subject to the Texas Rules of Evidence and other applicable law,
“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.” Tex. Code
Crim. Proc. art. 38.371.
to introduce evidence of extraneous offenses that have not been subject to the “speedy trial”
analysis in Barker v. Wingo, 407 U.S. 514, 530 (1972).
“If there is one doctrine more deeply rooted than any other in the process of
constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . .
unless such adjudication is unavoidable.” Tha Dang Nguyen v. State, 359 S.W.3d 636, 645–46
(Tex. Crim. App. 2012) (quoting Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105 (1944));
see Ex parte Salfen, 618 S.W.2d 766, 770 (Tex. Crim. App. 1981) (“It is well-settled that the
constitutionality of a statute will not be determined in any case unless such a determination is
absolutely necessary to decide the case in which the issue is raised.”); City of San Antonio
v. Summerglen Prop. Owners Ass’n, 185 S.W.3d 74, 87 (Tex. App.—San Antonio 2005, pet.
denied) (“[A] court will not rule on a constitutional question, although properly presented by the
record, if there is some other ground upon which the case may be disposed.”).
“A trial court abuses its discretion only when no reasonable view of the record could
support its ruling. A trial court’s ruling will be upheld if it is correct on any applicable legal
theory, even if the trial court articulated an invalid basis.” Briggs v. State, 560 S.W.3d 176, 184
(Tex. Crim. App. 2018). Because we conclude below that the challenged evidence in this case
was admissible under Rules 403 and 404(b) of the Texas Rules of Evidence, we need address
neither the admissibility of the evidence under article 38.371 nor the constitutionality of that
5 At trial, Martin challenged the constitutionality of Article 38.371 both on its face and
“as applied.” While Martin in his brief argues that “[Article] 38.371 is facially unconstitutional,”
the argument is ambiguous and subject to interpretation as an “as applied” constitutional
challenge. Because we do not reach the merits of Martin’s claim, we need not determine the
nature of his constitutional claim.
6 Specifically, Martin argues that “Article 38.371 does not have any safeguards to
prevent the use of charges that would not be allowable due to speedy trial violations.”
statute. See Felipe v. State, No. 03-19-00508-CR, 2020 WL 3887974, at *3 n.4 (Tex. App.—
Austin July 8, 2020, no pet.) (mem. op., not designated for publication) (“Given our ultimate
determination that the evidence was admissible under the Rules of Evidence, we need not
address whether the evidence was also admissible under former article 38.371 or whether Felipe
preserved this complaint for appellate consideration.”); Williams v. State, No. 01-15-00629-CR,
2016 WL 4055427, at *3 (Tex. App.—Houston [1st Dist.] July 28, 2016, pet. ref’d) (mem. op.,
not designated for publication) (holding that because defendant failed to show trial court did not
properly admit evidence under Rule 404(b) or Article 37.07, he had not shown he was convicted
as result of Article 38.37, and constitutional analysis of challenged statute would be prohibited
declaratory judgment). We overrule Martin’s first issue.
II. Admission of Subsequent Extraneous Offense
In his second issue, Martin contends that the trial court erred by admitting
evidence of an extraneous offense that occurred after the indicted offenses and maintains that the
evidence should have been excluded under Rules 403 and 404(b) of the Texas Rules of
Evidence. At trial, Martin asserted that the extraneous offense, by taking place after the indicted
offenses, did not “go to the state of mind as to the indicted offense” and that its prejudicial nature
“far outweigh[ed]” its probative value.
We review a trial court’s decision to admit or exclude evidence for an abuse of
discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016); see also Dabney
v. State, 492 S.W.3d 309, 316 (Tex. Crim. App. 2016) (“[B]ecause trial courts are in the best
position to decide admissibility questions, appellate courts must review a trial court’s decision
under an abuse-of-discretion standard.”). An abuse of discretion does not occur unless the trial
court acts “arbitrarily or unreasonably” or “without reference to any guiding rules and
principles.” State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery
v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). In other words, we may not reverse the
trial court’s ruling unless the “decision falls outside the zone of reasonable disagreement.”
Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016); see also Henley, 493 S.W.3d at
83 (“Before a reviewing court may reverse the trial court’s decision, ‘it must find the trial court’s
ruling was so clearly wrong as to lie outside the zone within which reasonable people might
disagree.’” (quoting Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008))). An
evidentiary ruling will be upheld if it is correct on any theory of law applicable to the
case. Henley, 493 S.W.3d at 93 (citing De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim.
The erroneous admission of evidence generally is considered non-constitutional
error. Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App. 2007); see also Solomon v. State,
49 S.W.3d 356, 365 (Tex. Crim. App. 2001) (explaining that erroneous admission of evidence
was non-constitutional error). Non-constitutional error requires reversal only if it affects the
substantial rights of the accused. Tex. R. App. P. 44.2(b); Barshaw v. State, 342 S.W.3d 91, 93
(Tex. Crim. App. 2011); see also Tex. R. Evid. 103 (stating that trial court error admitting or
excluding evidence must affect “substantial right of the party”). “An error does not affect
substantial rights if the appellate court has ‘a fair assurance from an examination of the record as
a whole that the error did not influence the jury, or had but a slight effect.’” Macedo v. State,
629 S.W.3d 237, 240 (Tex. Crim. App. 2021) (quoting Gonzalez v. State, 544 S.W.3d 363, 373
(Tex. Crim. App. 2018)). In deciding that question, we consider: (1) the character of the alleged
error and how it might be considered in connection with other evidence; (2) the nature of the
evidence supporting the verdict; (3) the existence and degree of additional evidence supporting
the verdict; and (4) whether the State emphasized the error. Id.
Rule 404(b) provides, “Evidence of a crime, wrong, or other act is not admissible
to prove a person’s character in order to show that on a particular occasion the person acted in
accordance with the character.” Tex. R. Evid. 404(b)(1). The Rule, however, includes a
clarification: “This evidence may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Id. R. 404(b)(2). The listed exceptions in Rule 404(b) “are neither mutually exclusive
nor collectively exhaustive.” De La Paz, 279 S.W.3d at 343. Rule 404(b) is a rule of inclusion,
not exclusion; it excludes only that evidence “that is offered (or will be used) solely for the
purpose of proving bad character and hence conformity with that bad character.” Id. The party
offering the extraneous offense evidence “must be able to explain to the trial court, and to the
opponent, the logical and legal rationales that support its admission on a basis other than ‘bad
character’ or propensity purpose.” Id.
“Rebuttal of a defensive theory is also one of the permissible purposes for which
evidence may be admitted under Rule 404(b).” Williams v. State, 301 S.W.3d 675, 687 (Tex.
Crim. App. 2009); see Crank v. State, 761 S.W.2d 328, 341 (Tex. Crim. App. 1988) (observing
that “probably the most common situation which gives rise to the admission of extraneous
offenses is in rebuttal of a defensive theory”), overruled on other grounds by Alford v. State,
866 S.W.2d 619 (Tex. Crim. App. 1993). Evidence that is otherwise inadmissible becomes
admissible when a party opens the door to such evidence. Id. A defendant may open the door to
extraneous-offense evidence by raising a defensive theory in voir dire, his opening statement,
cross-examination, or his case-in-chief. See Dabney, 492 S.W.3d at 318 (voir dire and opening
statement); De La Paz, 279 S.W.3d at 345–46 (case-in-chief); Powell v. State, 63 S.W.3d 435,
439 (Tex. Crim. App. 2001) (cross-examination); see also Gullatt v. State, 590 S.W.3d 20, 25
(Tex. App.—Texarkana 2019, pet. ref’d) (“Extraneous-offense evidence may be admitted to
rebut a defensive theory raised in opening statement, cross-examination of State’s witnesses, or
the defense’s case-in-chief.”).
The fact that an extraneous offense occurred subsequent to the events underlying
the indicted offenses does not render it inadmissible under Rule 404(b). “Rule 404 . . . contains
no time limitation.” Prince v. State, 192 S.W.3d 49, 55 (Tex. App.—Houston [14th Dist.] 2006,
pet. ref’d) (citing Templin v. State, 711 S.W.2d 30, 34 (Tex. Crim. App. 1986)); see Jamerson
v. State, No. 01-19-00796-CR, 2021 WL 1537516, at *6 (Tex. App.—Houston [1st Dist.]
Apr. 20, 2021, no pet.) (mem. op., not designated for publication) (“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.”). This Court and at least six of our sister courts have held
that a trial court did not abuse its discretion by admitting evidence of a subsequent extraneous
offense. See Torres v. State, 794 S.W.2d 596, 599 (Tex. App—Austin 1990, no pet.) (holding
subsequent extraneous offense admissible under 404(b) pursuant to consciousness of guilt
exception); see also Williams v. State, 290 S.W.3d 407, 411 (Tex. App.—Amarillo 2009, no pet.)
(mem. op.) (upholding admission of subsequent, extraneous robbery to connect vehicle from
robbery with vehicle from charged offense); Prince, 192 S.W.3d at 55 (“The fact that those
offenses were committed ten years after the murder does not affect their admissibility on the
issue of intent. The extraneous acts were similar to the charged offense and were probative
evidence that appellant intended to rob the convenience store.”); Mason v. State, 99 S.W.3d 652,
656 (Tex. App.—Eastland 2003, pet. ref’d) (“We hold that the trial court did not abuse
its discretion in finding that the extraneous offenses in 2001 were admissible as
circumstantial evidence of appellant’s knowing possession of cocaine in 1999.”); Russell
v. State, 113 S.W.3d 530, 537 (Tex. App.—Fort Worth 2003, pet. ref’d) (“[W]e hold that the trial
court did not abuse its discretion by rejecting Russell’s contention that the Vogt Street offense
was not admissible simply because it occurred [five weeks] after the Fast Freddy’s offense.”);
Skeen v. State, 96 S.W.3d 567, 576 (Tex. App.—Texarkana 2002, pet. ref’d) (evidence of arrest
that occurred seventeen months after charged offense was admissible to prove lack of accident in
prosecution for manslaughter).
On this record, the trial court did not abuse its discretion in overruling Martin’s
objection under Rule 404(b) to the admission of testimony concerning the Kerrville extraneous
offense. During voir dire, defense counsel raised the defensive theories of intent, knowledge,
accident, and mistake in a series of statements and questions to the panel. Foreshadowing
Ellington’s and Larson’s testimony concerning Martin’s use of a glass shard, defense counsel
posed the following hypothetical:
Aggravated assault, two ways you can do it. You can either call it serious bodily
injury or you can use or exhibit a deadly weapon.
. . .
Okay. Let’s say you and your brother get into a fight and y’all are in the living
room and there’s a gun sitting on top of a cabinet next to where you-all are
squaring off against each other. One of you pushes the other one against the
cabinet and the gun falls to the ground.
Okay. Now, let’s say one of y’all picks up the gun and puts it back on the
cabinet. Do you think that’s exhibiting a deadly weapon? If they didn’t point it at
you, didn’t – maybe like in a threatening thing? Like they were going to use the
gun and pick it up and put it back on the cabinet, do you think that’s exhibiting a
deadly weapon in the commission of an assault?
With respect to the charged counts of aggravated kidnapping, defense
[T]he first thing you have to determine is whether or not they intentionally or
knowingly actually abducted the person.
Don’t just assume that that portion is there because that’s – that’s part of the trial
is whether or not the person has intentionally or knowingly abducted before you
start looking at whether they were terrorized or whatever. Okay. Understand that
that – that the key thing on – before you even start looking at those elements is –
is ask yourself, is the person intentionally or knowingly abducted. Okay?
Defense counsel’s voir dire remarks opened the door to Ellington’s testimony
describing the Kerrville offense. As the State emphasized during the bench conference prior to
the admission of the testimony: “So where I have to prove intentionally or knowingly assaulted
someone and used or exhibited a deadly weapon and then intentionally abducted somebody
through the use of deadly force, then a subsequent assault just three weeks later when he’s trying
to kill her is certainly relevant and probative.” Ellington’s testimony that within three weeks of
the charged offenses, Martin once again choked and strangled her after forcing her to unwillingly
accompany him by threat directly rebuts the defensive theories raised in voir dire by tending to
prove Martin’s intent, knowledge, absence of mistake, and lack of accident with respect to his
conduct during the July 2017 offenses. The conduct alleged in the extraneous offense is similar
to that underlying the indicted offenses and was admissible for purposes other than to prove
Martin’s character. That the Kerrville incident occurred after the indicted offenses does not
preclude its admissibility under Rule 404(b). See, e.g., Torres, 794 S.W.2d at 599. Accordingly,
because it was not outside the zone of reasonable disagreement for the trial court to find that the
testimony was admissible under Rule 404(b), we conclude that the trial court did not abuse its
discretion by admitting it.
Even were we to conclude that the trial court erred in admitting the testimony, we
are unable to say that Ellington was harmed by its admission. Martin argues that the “harm is
clear” because Ellington testified that the Kerrville incident was the “worst one” “[c]ompared to
the other assaults that [she] discussed.” As such, the jury was “allowed to hear evidence of an
unindicted matter that was worse than the charged offenses.”
However, although Ellington testified that the Kerrville incident was the “worst,”
her testimony concerning the facts of the assault was strictly circumscribed by the trial court.
The trial record consists of approximately 234 pages, of which seventeen lines pertain to the
Q. In Kerrville was there an assault that took place?
A. Yes, there was.
Q. And did that assault include choking or strangulation?
A. Yes, it did.
Q. Compared to the other assaults that you discussed, would you consider this to
be the worst one?
Q. Was there a point where he wanted you to go with him somewhere and you did
not want to go?
Q. Did you comply, though, and go with him?
A. I did.
Q. And was that because a threat was made by [Martin]?
The State did not reference the Kerrville incident for the remainder of the trial, including in its
closing argument, other than to note, “I want you to think about the context of the relationship
. . . . He actually used deadly force by strangling her repeatedly.”
At a bench conference prior to Ellington’s testimony, the trial court forbade the
State from eliciting testimony that Martin grabbed Ellington by the arm and dragged her across a
porch, during which she began crying because “her arm hurt . . . really bad.” Similarly, the State
was not permitted to question Ellington about Martin’s striking her in the face with a closed fist;
his threat to bash in her head with a rock he was holding if she did not get into a car with him; or
her statement, “[T]his incident lasted the longest. And I really and truly thought that if it had just
been a few more minutes, I don’t know if I would have made it.”
By contrast, the remainder of the evidence introduced at trial was extensive and
strongly probative of the charged offenses. Ellington testified that during the July 2017 incident
underlying the indictment, Martin forced her to perform oral sex by threatening that if she did
not, “tomorrow would be a bad day.” She testified that the next night, she woke up to Martin
standing over her, pressing “something sharp” against her neck, and covering her mouth with his
other hand. He told her that he “already took care of [her] mother.” The following morning, he
choked her against a wall in the bathroom, and she attempted to defuse the situation by begging
him to “have a good day.” Later, he grabbed her by the hair and jerked her head back and forth
before forcing her and her mother into a bedroom, closing the door, and not allowing them to
leave. Next, he shattered a thick glass jar, ripped off his shirt, and scratched a line in the top of a
vanity. When Larson attempted to leave the room to call the police, Martin grabbed her and
threw her into the headboard or footboard of the bed, causing her to collapse and wet her pants.
When Ellington’s son came home, Martin ordered her to “get rid of him or I will kill him.”
Larson agreed that she and Ellington were confined to the bedroom and that
Martin would pull them back whenever they went to the door. She testified that he was saying
“some pretty scary things,” and she was afraid he was going to hurt them. She also testified that
she and Ellington were afraid of what might happen with the broken piece of glass because
Martin was saying “some threatening things.”
Referencing lapses in their respective memories at trial, both Ellington and Larson
conceded that their contemporaneous recollections would have been more accurate. Both made
written statements to police shortly after the incident, which were admitted into evidence, as was
a recording of Larson’s 911 call from the neighbor’s house. In her written statement, Ellington
explained that after she had texted Martin not to come back to the house:
He broke in late that evening and woke me up with a knife to my throat and
covered my mouth with his hand. He then stopped after I begged him to stop and
went to sleep. Today he woke up angry and then started to pull my hair and head
back and forth. Then slapped me in the head several times then pushed my
mother and held us hostage for several hours threatening to kill us both. He at
one point [b]roke a glass and threatened to cut our throats – only after begging
him did he stop.
Larson similarly wrote, “We sent [Martin] out 7/12/17 and told him not to return.
He returned later and broke into the house about 1-2 A.M. He threatened to kill me and my
daughter 2 times 7/13/17 – broke a glass jar and came after us with the glass.” In the recording
of the 911 call, Larson can be heard telling the operator, “We have a hostage-type problem . . . .
It was my daughter and I, and the man that was keeping us hostage [indistinct] kill us both.” She
noted that they had “had trouble with him off and on,” and they were held hostage previously
In addition, “error is harmless if very similar evidence is admitted without
objection.” Gutierrez v. State, 585 S.W.3d 599, 616 (Tex. App.—Houston [14th Dist.] 2019, no
pet.) (citing Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010); Leday v. State,
983 S.W.2d 713, 717 (Tex. Crim. App. 1998)). At trial, Martin did not object to Ellington’s
testimony about the November 2016 assault, an account that was considerably more detailed and
descriptive than the testimony about the Kerrville incident, undermining the defense’s purported
justification that the latter was harmful because it was “worse than the charged offenses.”
Ellington testified that during the November 2016 incident Martin kept her from
leaving a room even though she was hyperventilating, and blocked the door with a chair or table.
He then choked her “a couple of times” “to the point where [she] was not coherent of what was
going on around [her].” She felt “death” while his hands were around her throat and testified
that she prayed that it wouldn’t last long enough “to do something to [her] where [she] wouldn’t
be able to come back from.” Her hearing “dissipated,” and she “checked out” and felt like she
had “missed time.” When her son tried to stop the assault, Martin placed him in a chokehold and
slammed his head on the ground.
Accordingly, even assuming that the trial court erred by admitting the evidence,
we would be unable to conclude that the admission of Ellington’s testimony harmed Martin
under the Gonzalez factors in light of the record. See Gonzalez, 544 S.W.3d at 373.
Rule 403 allows for the exclusion of relevant evidence when 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. Rule 403 favors the admission of relevant evidence and carries a
presumption that relevant evidence will be more probative than prejudicial. Davis v. State,
329 S.W.3d 798, 806 (Tex. Crim. App. 2010); Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim.
App. 2007). “The probative force of evidence refers to how strongly it serves to make the
existence of a fact of consequence more or less probable.” Gonzalez, 544 S.W.3d at 372; accord
Davis, 329 S.W.3d at 806.
The fact that evidence shows the defendant in a negative light is insufficient to
justify its exclusion under Rule 403. See Inthalangsy v. State, 634 S.W.3d 749, 758 (Tex. Crim.
App. 2021). “Almost all evidence offered by the prosecution will be prejudicial to the defendant.
Only evidence that is unfairly prejudicial should be excluded.” DeLeon v. State, 77 S.W.3d 300,
315 (Tex. App.—Austin 2001, pet. ref’d). “Unfair prejudice is the ‘tendency to suggest decision
on an improper basis, commonly, though not necessarily, an emotional one.’” Inthalangsy,
634 S.W.3d at 758 (quoting Montgomery, 810 S.W.2d at 389). It is only when there exists “a
clear disparity between the degree of prejudice produced by the offered evidence and its
probative value that Rule 403 is applicable.” Hernandez v. State, 390 S.W.3d 310, 324 (Tex.
Crim. App. 2012); see Johnson, 490 S.W.3d at 911 (“Under Rule 403, the danger of unfair
prejudice must substantially outweigh the probative value.”).
In conducting a Rule 403 analysis, the trial court must balance the
claimed probative force of the proffered evidence along with the proponent’s need for the
(1) any tendency of the evidence to suggest that the case would be decided on an
improper basis; (2) any tendency of the evidence to confuse or distract the jury
from the main issues; (3) any tendency of the evidence to be given undue weight
by a jury that has not been equipped to evaluate the probative force of the
evidence; and (4) the likelihood that presentation of the evidence will consume an
inordinate amount of time or merely repeat evidence already admitted.
Henley, 493 S.W.3d at 93 (citing Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim.
App. 2006)). These factors may blend together in practice. Gigliobianco, 210 S.W.3d at 642.
“Confusion of the issues” refers to a tendency to confuse or distract the jury from
the main issues of the case; evidence that “consumes an inordinate amount of time to present or
answer” might confuse or distract the jury from the main issues. Casey v. State, 215 S.W.3d 878,
880 (Tex. Crim. App. 2007) (citing Gigliobianco, 210 S.W.3d at 641). “Misleading the jury”
refers to evidence’s tendency to be given undue weight by the jury on other than emotional
grounds. Id.; see Wiley v. State, 74 S.W.3d 399, 407 n.21 (Tex. Crim. App. 2002) (explaining
that danger of “confusion of the issues” and “misleading the jury,” as basis for excluding
evidence, “arises when circumstantial evidence tends to sidetrack the jury into consideration of
factual disputes only tangentially related to the facts at issue in the current case”; “[i]n short, the
evidence is a ‘rabbit trail’”). “Undue delay” and “needless presentation of cumulative evidence”
concern the efficiency of the proceeding rather than the threat of an inaccurate decision. Casey,
215 S.W.3d at 880. In evaluating the State’s need for the evidence, we look “at whether the fact
related to a disputed issue and whether the State had other evidence establishing that fact.”
Gonzalez, 544 S.W.3d at 372; State v. Mechler, 153 S.W.3d 435, 441 (Tex. Crim. App. 2005).
As discussed above, Ellington’s testimony concerning the Kerrville incident was
highly relevant and probative in rebutting the defensive theories of intent, knowledge, accident,
and mistake. While evidence of additional extraneous offenses was presented to the jury,
Ellington’s testimony was the only evidence addressing the Kerrville incident, which in turn was
the only extraneous offense to have occurred after the indicted offenses.
Although several characteristics of the Kerrville incident were similar to those of
the other extraneous offenses, each act independently and cumulatively added to the jury’s grasp
of the relationship and pattern of abuse. What is more, the Kerrville incident was uniquely
relevant in facilitating the jury’s understanding of Bassett’s testimony, specifically as it related to
strangulation as a form of abuse and myths such as that victims always leave abusive
relationships or fight back. Lastly, because the incident occurred after the charged offenses, it
demonstrates Martin’s intent, knowledge, and lack of mistake and accident in a particularly
pronounced way, insomuch as it tends to show that the abuse continued despite the severity of
the charged offenses and the involvement of law enforcement. For these reasons, we cannot
conclude that the evidence was unnecessary or unduly repetitive.
As noted above, the testimony was exceedingly brief, accounting for less than a
page of the 234-page trial record, and therefore did not consume an inordinate amount of time.
What is more, the Kerrville incident was not referenced again in testimony.
We have rejected Martin’s argument that the evidence pertaining to the Kerrville
incident was especially inflammatory. We are similarly unpersuaded by his arguments,
advanced at trial, that testimony about the incident caused the jury to decide the case upon an
improper basis, distracting the jury from the indicted offenses or causing the jury to improperly
conflate the Kerrville incident with that of July 2017. Nothing in the record suggests that the
jury was susceptible to such an error or that the challenged testimony made such an error
Additionally, the trial court’s grant of the defense’s requested limiting instruction
goes some way toward alleviating concerns that the jury was distracted, confused, or decided the
case on an improper basis. The trial court instructed the jury:
Ladies and gentlemen, any defendant is entitled to be tried solely upon the
allegations contained in the indictment. And if there is evidence admitted before
you regarding any other or extraneous acts, first of all, you may not consider any
such acts for any purpose until you as an individual find and believe that the
defendant, if at all, committed such acts beyond a – or you believe that beyond a
reasonable doubt, number one.
Number two, evidence of any such crime, wrong or other act is not admissible to
prove a person’s character in order to show that on a particular occasion the
person acted in accordance with that character. However, such evidence, if any,
may be admissible to prove, if it does or if it does not, but motive, intent,
preparation, plan, knowledge, absence of mistake or lack of accident, you may
consider any such evidence, if at all, only for those purposes.
The court’s instruction helps alleviate any tendency of the evidence to be given undue weight by
a jury that has not been equipped to evaluate its probative force or to be considered for an
improper purpose. We have previously looked favorably upon a similar instruction in addressing
many of the concerns espoused by Martin here. In Hodge v. State, 500 S.W.3d 612, 626 n.9
(Tex. App.—Austin 2016, no pet.), we explained:
To the extent that Hodge is asserting in his brief that members of the jury could
have determined that Hodge committed one or more of the alleged counts by
relying on evidence of the offenses occurring in Lampasas County or Wyoming,
we note that the jury charge contained an extraneous-offense instruction
explaining that the jury could not consider that type of evidence unless the jury
determined beyond a reasonable doubt that Hodge committed the extraneous
offenses and then “may only consider” the evidence “for the purpose of
determining any relevant matters,” including the state of mind of Hodge and the
alleged victims, “the previous and subsequent relationship between” Hodge and
the victims, and “the character of the defendant and acts performed in conformity
with” Hodge’s character. Moreover, the jury charges also specified that Hodge
was “on trial solely on the charges contained in the indictment.”
We presume that juries follow the trial court’s instructions in the manner presented. See Thrift
v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). For these reasons, we conclude that the
probative value of Ellington’s testimony was not substantially outweighed by the dangers
enumerated in Rule 403.
III. Photographic Evidence of November 2016 Extraneous Offense
In his third issue, Martin contends that the trial court erred by admitting into
evidence photographs from the November 2016 extraneous offense in violation of Rules 403 and
404(b). However, any error in the admission of the photographs was rendered harmless when
Martin failed to object at trial to Ellington’s testimony regarding the offense and photographs.
“[O]verruling an objection to evidence will not result in reversal when other such
evidence was received without objection, either before or after the complained-of ruling.” Leday
v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); see Ethington v. State, 819 S.W.2d 854,
858 (Tex. Crim. App. 1991) (“[I]t is well settled that an error in admission of evidence is cured
where the same evidence comes in elsewhere without objection; defense counsel must object
every time allegedly inadmissible evidence is offered.”); Sandoval v. State, 409 S.W.3d 259, 289
(Tex. App.—Austin 2013, no pet.) (“[E]rror in the admission of evidence may be rendered
harmless when substantially the same evidence is admitted elsewhere without objection.”). This
is so even when the format of the evidence differs, so long as its content is the same. Moore
v. State, 999 S.W.2d 385, 402 (Tex. Crim. App. 1999) (holding objection was waived where
appellant objected to admission of diagram, contents of which were established by testimony of
witnesses); see Mallory v. State, No. 02-17-00279-CR, 2019 WL 618893, at *12 (Tex. App.—
Fort Worth Feb. 14, 2019, pet. ref’d) (mem. op., not designated for publication) (holding
defendant forfeited challenges to photographs by failing to object to testimony about their
contents); Sampson v. State, No. 02-15-00202-CR, 2016 WL 4474339, at *3 (Tex. App.—Fort
Worth Aug. 25, 2016, pet. ref’d) (mem. op., not designated for publication) (holding any error in
admission of photographs was harmless due to admission of unobjected-to testimony regarding
contents of photographs). The evidence need not be identical but must involve “substantially the
same facts.” Hitt v. State, 53 S.W.3d 697, 708 (Tex. App.—Austin 2001, pet. ref’d); see
Estrada, 313 S.W.3d at 302 n.29 (noting that any error was harmless when “very similar”
evidence was admitted without objection).
Here, Ellington testified without objection that on November 4, 2016, Martin
became violent with her and choked her multiple times by putting his hands around her neck.
The assault began on the bed but continued when she fell to the floor. When the State attempted
to offer three photographs taken by BPD depicting how she appeared after the assault, defense
counsel stated, “Subject to previous objections, Your Honor.” The trial judge called the parties
to the bench to clarify the objection, and defense counsel elaborated:
[T]hey’re not from the – the indicted case. They’re from a previous indictment.
And just subject to the argument that they haven’t been subjected to a 403 or 404
(b) analysis to determine admissibility under the Gigliobianco factors to
determine what purpose the – they’re coming in under 404(b).
The trial court overruled the objection and admitted the photographs. They were published to the
jury, and Ellington testified as to their contents:
Q. . . . Okay. Kristin, we’re looking at State’s Exhibit 2. Can you tell me what is
on the side of your face that they were trying to capture?
A. A red mark.
Q. Okay. And then State’s Exhibit 3, what happened – what are they taking a
picture of there?
A. My lip was busted on – on the inside.
Q. Okay. And State’s Exhibit 4, what are we looking at there?
A. I believe where he put his hands on my neck.
Martin did not object to this testimony. As a result, he forfeited any objection to
the admission of the photographs on appeal, and any error caused by their admission is harmless.
We overrule Martin’s third issue.
IV. Improper Closing Argument
In his fourth issue, Martin contends that the State made an improper jury
argument during closing, when the prosecution stated:
So the defendant in this case is charged with eight counts, eight different crimes.
And I’m going to go through those. There are two lesser-included offenses
included in this jury charge.
So when the lesser-included charge is put in here, it doesn’t mean that anyone in
this courtroom believes that there’s not enough evidence to convict on the primary
charge. All it means is that someone – anyone requested it and it was put there.
Okay. So the Judge doesn’t believe, the defense attorney doesn’t believe and we
don’t believe, that it doesn’t necessarily mean that we don’t believe that there’s
enough of a primary offense, that it makes sense.
On appeal, Martin argues that the State’s remarks “improperly suggested that the Trial Court and
Defense Counsel believe that there is sufficient evidence to convict on the primary charge.”
“Appropriate jury argument generally falls within only four areas: (1) summation
of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of
opposing counsel; and (4) a plea for law enforcement.” Ex parte Scott, 541 S.W.3d 104, 119
(Tex. Crim. App. 2017). However, “[t]he right to a trial untainted by improper jury argument is
forfeitable.” Hernandez v. State, 538 S.W.3d 619, 622–23 (Tex. Crim. App. 2018). “To
preserve a complaint about improper jury argument for appellate review, a defendant must object
and pursue the objection to an adverse ruling. A defendant must object at the earliest
opportunity to prevent waiver of an issue on appeal.” Owens v. State, 549 S.W.3d 735, 744
(Tex. App.—Austin 2017, pet. ref’d); see Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App.
2007) (“To preserve error in prosecutorial argument, a defendant must pursue to an adverse
ruling his objections to jury argument.”).
Martin failed to object to the State’s argument at closing and has therefore failed
to preserve error with respect to this claim. We overrule his fourth issue.
V. Directed Verdict
In a single issue on cross-appeal, the State contends that the trial court erred in
ordering a directed verdict of acquittal on Count II, injury to an elderly individual. We lack
jurisdiction to consider the State’s claim.
“One of the most fundamental rules of double-jeopardy jurisprudence is that when
a trial ends in an acquittal, the defendant may not be tried again for the same offense.” State
v. Blackshere, 344 S.W.3d 400, 406 (Tex. Crim. App. 2011). An acquittal bars appellate review
even when based “on an ‘egregiously erroneous foundation,’ such as erroneous exclusion
of evidence or erroneous weighing of evidence.” Id. (quoting Fong Foo v. United States,
369 U.S. 141, 143 (1962)); see Tex. Code Crim. Proc. art. 1.11 (“An acquittal of the defendant
exempts him from a second trial or a second prosecution for the same offense, however irregular
the proceedings may have been.”). “Two requirements must be met before double-jeopardy
protections are implicated”: (1) jeopardy must have attached7 and (2) the State’s appeal must
threaten the defendant with an impermissible successive trial. State v. Moreno, 294 S.W.3d 594,
597 (Tex. Crim. App. 2009). “A defendant is acquitted when ‘the ruling of the judge,
whatever its label, actually represents a resolution, correct or not, of some or all of the factual
elements of the offense charged.’” Id. at 598 (quoting United States v. Martin Linen Supply Co.,
430 U.S. 564, 571 (1977)).
A directed verdict of acquittal, even when erroneous, constitutes an acquittal for
double jeopardy purposes. See id. (“[W]hen a trial ends, after jeopardy has attached, with a
judgment of acquittal, ‘whether based on a jury verdict of not guilty or on a ruling by the court
that the evidence is insufficient to convict,’ any further prosecution, including an appeal, is
prohibited by the Double Jeopardy Clause.” (quoting United States v. Scott, 437 U.S. 82, 91
(1978))) (emphasis added). As the Court of Criminal Appeals explained in Blackshere:
[T]here is little doubt that the trial court did not intend to acquit the appellee, in
such terms. In fact, the parties and the trial court explicitly discussed avoiding the
term “directed verdict of acquittal” in order to preserve the State’s ability to
appeal. But the intent and form of the trial court’s actions cannot trump the
substance of the protections afforded by the Double Jeopardy Clause.
344 S.W.3d at 408.
Because the trial court’s directed verdict—by determining that the evidence at
trial was insufficient to prove the elements of the offense—acquitted Martin of injury to an
elderly individual, the Double Jeopardy Clause prevents us from reviewing the court’s action.
We therefore dismiss the State’s issue on cross-appeal.
7 In a state trial, jeopardy attaches when the jury is empaneled and sworn. State
v. Moreno, 294 S.W.3d 594, 597 (Tex. Crim. App. 2009).
Outcome: Having overruled each of Martin’s issues and dismissed the State’s issue on
cross-appeal, we affirm the judgments of conviction and acquittal.