             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00433-CR
     ___________________________

 BRANDON ISAIAH THOMAS, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 372nd District Court
         Tarrant County, Texas
        Trial Court No. 1557994R


  Before Birdwell, Bassel, and Womack, JJ.
  Memorandum Opinion by Justice Birdwell
                            MEMORANDUM OPINION

       In three nonsufficiency-related points, Brandon Isaiah Thomas challenges his

conviction for one count of aggravated assault with a deadly weapon, his conviction

for one count of assault on a family member by impeding breath or circulation, and

his concurrent sentences of fifteen and ten years’ confinement. Tex. Penal Code Ann.

§§ 22.01(a)(1), (b)(2)(B), 22.02(a)(2). We affirm.

                                      Background

       Thomas and the complainant lived together with their children but were not

married. One night, while the family was living in a motel room, Thomas became

angry when the complainant was texting with a male coworker. He came out of the

bathroom, pushed her back so that she fell onto the floor, grabbed an air rifle, broke

her phone with the air rifle, and used the butt of the air rifle to hit her several times in

the face until the air rifle broke. Thomas then held the complainant off the ground by

the neck for about two minutes. The complainant’s ears began ringing, and her vision

faded. But she did not lose consciousness. That night, the complainant could see out

of only one eye.

       After the attack, the complainant and Thomas cleaned her blood from the

motel room’s bedroom and bathroom and then went to sleep. The next day, the

complainant’s mother found the complainant and Thomas by searching motel parking

lots in Euless. Thomas would not let the complainant come out of the motel room at

first, but he later allowed the complainant to come just outside the door. Although it

                                             2
was dark, the complainant’s mother saw the “[h]orrific” injuries, but the complainant

told her mother that three men had attacked her in the parking lot at work.

      Three days after the attack, Euless police pulled over the complainant while she

was driving away from the motel. Thomas was a passenger in the car; because he had

outstanding traffic warrants, the police arrested him. One of the officers asked the

complainant about her injuries, so she told the officers about the assaults. The police

photographed the complainant’s injuries. The complainant then went to a doctor,

who diagnosed her with a concussion, nasal-bone fractures, abrasions, and

contusions.

      A grand jury indicted Thomas for aggravated assault with the air rifle and

assault on a family member by impeding breathing or circulation, and a jury found

him guilty. The jury assessed his punishment at fifteen years’ confinement for the

aggravated assault and ten years’ confinement for the assault. Thomas challenges both

convictions on appeal.

                                  Nurse’s Testimony

      In his first point, Thomas challenges a nurse’s expert testimony about the cause

of the injuries to the complainant’s eyes.

      Nurse Mary Ann Contreras testified as an expert in domestic violence trauma

with a particular emphasis on strangulation as a component of domestic violence.

Thomas did not object to Contreras’s qualifications, including whether she was

qualified to give an opinion on medical causation.

                                             3
       Contreras explained that “strangulation is an external pressure on someone’s

throat or around their neck that causes a reduced or complete blockage of blood flow

going to the brain as well as coming back down from the brain” and can cause the

blood vessels to rupture. According to Contreras, visible marks occur in about only

half of strangulation cases.

       Contreras testified that she had reviewed photographs of the complainant, the

police report, the complainant’s statement, and a checklist assessing the potential for

domestic violence. Based on two of the police photographs of the complainant’s

neck, Contreras opined that the visible marks were consistent with strangulation

caused by the blood vessels’ bursting and creating pinpoint bruises under the skin

called petechiae. Contreras also testified that photographs of the complainant’s lips

and the inside of her mouth showed large bruises that appeared to be from blunt

force trauma. The inside of her mouth showed petechiae. Contreras further testified

that a photograph of the left eye showed “petechiae and large busting of vessels” and

agreed that these could have been caused by a buildup of pressure.

       When the prosecutor asked Contreras whether she had an opinion “as to

whether the injuries to the eyes or the redness to the eyes [were] caused by blunt force

trauma or strangulation,” Thomas objected to “speculation.” The trial judge allowed

Thomas’s counsel to voir dire Contreras, but only as to her “opinion as to [the] source

of injuries in the eye.” After his voir dire of the witness, Thomas’s counsel objected

again “on speculation” because he claimed Contreras was “basing everything on what

                                           4
someone ha[d] told her without doing any type of independent research.” The trial

judge overruled the objection and instructed the jury to make an independent decision

about the opinion’s validity. Contreras then testified that in her opinion the injuries to

the complainant’s eyes were caused by both blunt force trauma and strangulation.

       On appeal, Thomas’s complaint is two-fold: that Contreras’s opinion about the

cause of the eye injuries was beyond the scope of her personal knowledge of the case

and that as a nurse, she is not qualified to give an opinion on medical causation. We

do not address the second part of his argument because he did not preserve it at trial.

See Davis v. State, 313 S.W.3d 317, 352–53 (Tex. Crim. App. 2010); Wilson v. State, 7

S.W.3d 136, 145 (Tex. Crim. App. 1999).

      Evidentiary rule 602 allows a witness to testify only if evidence is introduced

that supports a finding that the witness has personal knowledge of the matter testified

about. Tex. R. Evid. 602. But the rule also “does not apply to a witness’s expert

testimony” as allowed by rule 703. Id. As the court of criminal appeals has explained,

“expert testimony serves the purpose of allowing certain types of relevant, helpful

testimony by a witness who does not possess personal knowledge of the events about which he

or she is testifying.” Osbourn v. State, 92 S.W.3d 531, 535–36 (Tex. Crim. App. 2002)

(emphasis added).

       Contreras testified extensively about her training and experience related to

domestic violence and strangulation in that context. Thomas did not object to

Contreras’s testifying as an expert on strangulation in a domestic violence context,

                                            5
and he did not object when she testified that the complainant’s neck and mouth

injuries were consistent with strangulation. Nor was Contreras required to have

personal knowledge as an expert witness. Accordingly, we hold that the trial court did

not abuse its discretion by overruling Thomas’s objection, and we overrule Thomas’s

first point.

                                       Mistrial

       In his second point, Thomas claims the trial court committed reversible error

by denying his motion for mistrial when the complainant nonresponsively testified

that at the time of the assault Thomas had been “doing weekends in jail.” When she

did so, Thomas’s counsel objected, received a favorable ruling, and asked for and

received a jury instruction to disregard the statement. After the trial judge instructed

the jury to disregard the statement, he asked whether the jury understood his

instruction. The record shows that “several” jurors answered yes. The trial judge also

asked if the jury could follow that instruction. Again, “several” jurors answered yes.

The record does not indicate that any juror said no to either question.

       The trial judge then recessed the jury, instructed the prosecutor to ask more

precise questions, and admonished the complainant not to “mention that anybody has

gone to jail” for any reason except regarding the charges being tried. After discussion,

Thomas’s counsel moved for a mistrial. The trial judge denied the motion “[b]ased on

the jury’s demeanor and responses.”



                                           6
      As soon as the jury came back into the courtroom, it heard without objection

that Thomas had both physically and verbally abused the complainant in the past. The

complainant testified about abuse in general as well as about specific incidents that

included strangulation.

      We review the trial court’s denial of a mistrial for an abuse of discretion,

keeping in mind that a mistrial is a remedy for “improper conduct that is ‘so

prejudicial that expenditure of further time and expense would be wasteful and

futile.’” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (quoting Ladd v.

State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). A mistrial is required only in

extreme circumstances in which the prejudice is incurable. Id. Evaluating whether a

mistrial should have been granted is similar to performing a harm analysis. Archie v.

State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007). Factors to consider include (1) the

severity of the misconduct, (2) measures adopted to cure the misconduct, and

(3) certainty of conviction absent the misconduct. Id. (citing Ramon v. State, 159

S.W.3d 927, 929 (Tex. Crim. App. 2004)).

      The complainant’s reference to Thomas’s being in jail was limited, the trial

judge did not believe the State had intentionally elicited the testimony, and no witness

made similar references during the remaining part of the trial. The jury did not hear

any details regarding why Thomas had been in jail, so it did not hear evidence of a

more serious extraneous offense than the offense charged. And the jury had also

previously heard, without objection, that when the police pulled over the complainant

                                           7
and Thomas, Thomas had several outstanding––albeit minor––traffic warrants. The

jury further heard the trial judge sustain Thomas’s objection, and several jurors stated

that they understood and could follow the judge’s contemporaneous instruction to

disregard. While the jury was dismissed from the courtroom, the trial judge

acknowledged, “There’s a point that even trained judicial officers can’t put enough

clothes pins on their nose to get rid of the smell. But I’m confident at this point,

based on my observations of the jurors . . . that they understand the rules at this

point.”

      Finally, the complainant testified about the attack in detail, and the evidence

included photographs taken several days after the attack that still showed marks on

her neck and clear, extensive bruising to her eyes, face, and mouth. The complainant’s

mother saw these injuries the day after the assaults and testified that Thomas had tried

to hide the complainant from her. The complainant also testified without objection

about Thomas’s prior verbal and physical assaults on her. Thus, we have confidence

of a high certainty of conviction regardless of the complainant’s comment.

      The record does not show that the witness’s reference was so extreme that any

prejudice to Thomas was incurable. See Gomez v. State, 552 S.W.3d 422, 428–29 (Tex.

App.––Fort Worth 2018, no pet.). Thus, we hold that the trial court did not abuse its

discretion by denying Thomas’s motion for mistrial, and we overrule Thomas’s

second point.



                                           8
                                  Closing Argument

      Thomas’s third point complains about the State’s rebutting closing argument.

Thomas’s counsel had argued that the evidence weighed against a conclusion that

Thomas had hit the complainant with the air rifle because the police did not find any

blood on it. In rebuttal, the prosecutor argued, “Look, here’s the sad thing about this.

[She] probably had to clean the blood off this gun . . .” so that the children did not see

it. Thomas’s counsel objected that the prosecutor was arguing facts not in evidence.

In overruling the objection, the trial judge noted, “There’s evidence concerning

cleaning.”

      Although closing argument may not include facts not in evidence, an argument

that is a reasonable deduction from the evidence is permissible. See Freeman v. State,

340 S.W.3d 717, 727 (Tex. Crim. App. 2011) (listing four proper areas of closing

argument); Coleman v. State, No. 02-17-00123-CR, 2019 WL 2042047, at *10 (Tex.

App.––Fort Worth May 9, 2019, no pet.). Here, the complainant had testified that the

assault with the air rifle occurred while she and Thomas were in the bedroom/living

area of the motel room and that she and Thomas had cleaned both the bedroom and

bathroom areas of the one-room motel room after the assault. The complainant also

testified that when Thomas put her in the shower after the assaults, “he had blood all

over his hands [and b]lood was everywhere.” Thus, it is a reasonable deduction from

the evidence that Thomas was concerned about the blood on the complainant, the

blood in the room, and the blood on objects in the room, and––as part of the

                                            9
cleaning of the small space––the complainant helped clean the air rifle. See Temple v.

State, 342 S.W.3d 572, 605 (Tex. App.––Houston [14th Dist.] 2010), aff’d, 390 S.W.3d

341 (Tex. Crim. App. 2013). We overrule Thomas’s third point.

                                    Conclusion

      Because we have overruled Thomas’s three points, we affirm the trial court’s

judgment.

                                                    /s/ Wade Birdwell

                                                    Wade Birdwell
                                                    Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 29, 2019




                                         10
