James v. State

623 S.W.3d 533

Joe Lee JAMES, Appellant

v.The STATE of Texas

No. 02-19-00427-CR

Court of Appeals of Texas, Fort Worth.

Delivered: April 22, 2021

ATTORNEYS FOR APPELLANT: COLIN T. MCLAUGHLIN, KRISTIN MCLAUGHLIN, MCLAUGHLIN LAW, PLLC, COLLEYVILLE, TEXAS.

ATTORNEYS FOR STATE: SHAREN WILSON, CRIMINAL DISTRICT ATTORNEY; JOSEPH W. SPENCE, CHIEF OF THE POST-CONVICTION DIVISION; VICTORIA A. FORD OBLON, PETER GIESEKING, KATHRYN G. OWENS, ASSISTANT CRIMINAL DISTRICT ATTORNEYS FOR TARRANT COUNTY, FORT WORTH, TEXAS.

Before Sudderth, C.J.; Womack and Wallach, JJ.

Opinion by Justice Wallach In this family-violence case, a jury found Appellant Joe Lee James guilty of two counts: (1) violating an emergency protective order by striking J.H. (Jane),¹ a person protected by the order, with his hand and (2) committing felony assault causing bodily injury to Jane, a woman with whom he had a dating relationship, by striking her with his hand. See Tex. Penal Code Ann. §§ 22.01(a)(1), (b)(2)(A), 25.07(a)(1), (b)(1), (c), (g)(2)(B) ; Tex. Code Crim. Proc. Ann. art. 17.292. After finding true the habitual-offender allegations regarding James's two prior felony-offense convictions, the trial court sentenced James to serve fifty years' confinement on each count, with the sentences to be served concurrently.

James raises two issues. In his first issue, he contends that the trial court abused its discretion by admitting extraneous-offense evidence under Code of Criminal Procedure Article 38.371 because the evidence was offered to show his character conformity, violating Rule of Evidence 404(b), and because the probative value of the evidence was substantially outweighed by a risk of one or more of the following: undue prejudice, confusing the issues, misleading the jury, undue delay, or the needless presentation of cumulative evidence, violating Rule of Evidence 403. He further contends that even if the evidence was admissible, the trial court abused its discretion by failing to conduct proper Rule 404 and Rule 403 analyses.

In his second issue, James contends that the trial court abused its discretion by allowing Mary Beth Kopsovich, the vice president of nonresidential services at Safe Haven, to testify as an expert because she was not qualified to do so and because her testimony about the cycle of violence was not relevant. We hold that the trial court did not abuse its discretion by admitting the challenged evidence or by allowing Kopsovich to testify as an expert; we therefore affirm the trial court's judgments.

I. Background Facts²

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 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.

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 hospital visit;

• 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 extraneous-offense 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 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.³

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 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 power-and-control wheel, which showed different ways in which an abuser uses and maintains power and control over the person abused.

II. Discussion

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).

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:

a. Mary

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...