                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-15-00400-CR


JOHN ALLEN LESSNER                                                 APPELLANT

                                         V.

THE STATE OF TEXAS                                                      STATE


                                      ----------

             FROM THE COUNTY COURT AT LAW OF HOOD COUNTY
                         TRIAL COURT NO. 47971

                                      ----------

                           MEMORANDUM OPINION1

                                      ----------

      John Lessner appeals his conviction by a jury for misdemeanor assault.

See Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2016).2 In his sole point,

appellant contends the trial court abused its discretion by admitting the expert


      1
          See Tex. R. App. P. 47.4.
      2
      The jury also assessed his punishment at 365 days’ confinement and a
$4,000 fine.
testimony of Jerri Vaughn about family violence in general and typical behaviors

of victims of family violence because the testimony was not relevant and was

unfairly prejudicial. We affirm.

                                      Background

      At trial, the complainant testified that on March 22, 2015, during the course

of an argument3 at the house she had been living in with appellant, appellant

grabbed her by the hair and wrist, “slammed” her to the floor and used her body

to wipe up spilled tea, grabbed her by the face and “slung” her against the

refrigerator, and––while pinning her against the refrigerator with his forearm––bit

her on the cheek, nose, and chin, leaving visible bite marks. At some point

during the struggle, the complainant was able to call 911 using a panic button on

the phone. But when the police arrived, she told an officer that nothing had

happened and that she did not want to press charges. The complainant testified

that she was afraid to get appellant in trouble and felt panic at the thought that he

would get angry.      Nevertheless, after speaking with the complainant and

appellant, and observing the bruises and swelling on the complainant’s face, the

police decided to arrest appellant.

      The complainant refused to complete a written statement for the police, but

she did request an emergency protective order and allowed an officer to take


      3
       Appellant and the complainant were living in his parents’ house; he got
angry with the complainant for spilling tea “all over” the kitchen floor and
“disrespecting” his parents’ house.


                                          2
photographs of bruising on her arms and face. She also drove herself to the

hospital where she told hospital staff that appellant had assaulted her.          The

complainant allowed police to take additional photographs of her injuries the next

morning and four days later.

      After appellant was charged with assault, the complainant signed two

affidavits of nonprosecution. At trial, she testified that she had lied in at least one

of the affidavits because of fear that appellant would “get in trouble.” In addition,

she sought to vacate the protective order, also “to protect [appellant].”

      On cross-examination, appellant’s counsel questioned the complainant

about her affidavits of nonprosecution, her wavering willingness to testify, her

differing versions of events over the course of the case, and the fact that she had

willingly engaged in sadomasochistic activities with appellant in the past and

enjoyed “rough sex,” with her as the submissive partner. The complainant also

testified that as part of that rough sex, appellant often bit her, particularly on the

thighs, arms, and ears, but he never bit her face.

      After the complainant testified, over appellant’s rule 702 and 403

objections,4 the trial court admitted the expert testimony of State’s witness Jerri

Vaughn about the dynamics of family violence and typical behavior of domestic

violence victims in relation to their abusers.       Tex. R. Evid. 403, 702.     More

      4
        Appellant also objected that Vaughn was not qualified to testify as an
expert and that her testimony was not reliable. On appeal, appellant’s challenge
to the admissibility of Vaughn’s testimony is limited to relevance and whether the
evidence should have been excluded under rule 403.


                                          3
specifically, Vaughn, a licensed master social worker and executive director of

the Family Crisis Center in Johnson County, testified that victims of family

violence often are reluctant to report their experiences for many reasons,

including fear of economic consequences.            Vaughn testified that it is “fairly

common” for victims of domestic violence to sign affidavits of nonprosecution out

of fear, denial, and hope that the abuser will change. She also said that it is

common for victims to minimize the abuse they have suffered due to shame,

embarrassment, and denial. According to Vaughn, abusers often control the

finances in a relationship, and “[f]amily violence is all about power and control

[with] . . . the ultimate goal . . . to keep [the victim] in th[e] relationship where they

have all the power.”

                       Admissibility of Vaughn’s Testimony

      A trial court’s determination as to the admissibility of expert testimony is

governed by an abuse of discretion standard. Montgomery v. State, 810 S.W.2d

372, 391 (Tex. Crim. App. 1991) (op. on reh’g). An appellate court must affirm a

trial court’s ruling if it was at least within the “zone of reasonable disagreement.”

Id. We consider the ruling in light of what was before the trial court at the time it

made the ruling. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009).

      Admissibility of expert testimony is governed by rule 702 of the Texas

Rules of Evidence, which states,

            A witness who is qualified as an expert by knowledge, skill,
      experience, training, or education may testify in the form of an
      opinion or otherwise if the expert’s scientific, technical, or other


                                            4
       specialized knowledge will help the trier of fact to understand the
       evidence or to determine a fact in issue.

Tex. R. Evid. 702; Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011).

The threshold determination is whether the proponent of the expert testimony

proved by clear and convincing evidence that the testimony is “sufficiently

reliable and relevant to help the jury” in understanding the evidence or

determining an issue of fact. Tillman, 354 S.W.3d at 435 (citing Kelly v. State,

824 S.W.2d 568, 572 (Tex. Crim. App. 1992)). Expert testimony is relevant or

“fit[s]” the case if it assists the trier of fact and is sufficiently tied to the facts of the

case. Id. at 438; Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996);

see Tex. R. Evid. 702.

       “Evidence admissible under rule 702 may include testimony which

compares general or classical behavioral characteristics of a certain type of

victim with the specific victim’s behavior patterns.” Scugoza v. State, 949 S.W.2d

360, 363 (Tex. App.—San Antonio 1997, no pet.) (citing Duckett v. State, 797

S.W.2d 906, 917 (Tex. Crim. App. 1990) (holding that expert’s testimony

comparing reaction of complaining child with general behavioral characteristics of

abused children helped jury in determining whether assault occurred);5 Fielder v.

State, 756 S.W.2d 309, 321 (Tex. Crim. App. 1988) (holding same as to female


       5
        The court of criminal appeals has disapproved of Duckett, but only to the
extent that it could be read “to hold that even expert testimony that is relevant as
substantive evidence may yet be inadmissible unless it serves some
rehabilitative function.” Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App.
1993).

                                              5
victims of domestic violence)); see Brewer v. State, 370 S.W.3d 471, 474 (Tex.

App.—Amarillo 2012, no pet.). Because the average juror will not typically be

familiar with the effect of family violence on victims and the dynamics of the

relationship between abuser and victim, expert testimony has generally been

held to be admissible to explain recantations, delays in reporting, lies to the

police, and why a complainant would continue living with a family member after

an alleged assault. See Salinas v. State, 426 S.W.3d 318, 323 (Tex. App.––

Houston [14th Dist.] 2014) (op. on reh’g), rev’d on unrelated grounds, 464

S.W.3d 363 (Tex. Crim. App. 2015); Dixon v. State, 244 S.W.3d 472, 480 (Tex.

App.—Houston [14th Dist.] 2007, pet. ref’d); Scugoza, 949 S.W.2d at 363; see

also Mendoza v. State, No. 08-13-00293-CR, 2015 WL 5999596, at *2, *4–5

(Tex. App.—El Paso Oct. 14, 2015, pet. ref’d) (not designated for publication)

(holding testimony regarding cycle of family violence relevant when assault was

witnessed by third party but victim refused to cooperate with police and testified

for defense); Capello v. State, No. 03-05-00553-CR, 2006 WL 2453021, at *4

(Tex. App.—Austin Aug. 25, 2006, pet. ref’d) (mem. op., not designated for

publication) (determining that expert testimony on cycle of abuse was relevant

because it assisted jury in understanding why victim of domestic violence might

lie to police).

       Appellant acknowledges that such evidence can be admissible but

nevertheless argues that the admissibility of such evidence is limited to only

those cases in which the opponent of the evidence or the evidence itself raises a


                                        6
material issue requiring such explanation and that no material issue was raised

here.    We need not decide the issue as framed by appellant because the

evidence was relevant to a material issue raised by the evidence in the case.

Appellant’s counsel told the jury in his opening statement that the complainant

had told numerous versions of the events of March 22, 2015, that she had put in

writing her desire to drop the charges, and that she has “zero” credibility.

According to appellant’s counsel, he and the complainant had merely engaged in

consensual “rough sex” on March 22, 2015, and she thereafter leveraged the

threat of charges to extort him and his family for money. Additionally, appellant

cross-examined the complainant extensively regarding the affidavits of

nonprosecution, her wavering willingness to testify, her extensive cooperation

with the defense, and her different versions of events.          Accordingly, the

complainant’s inconsistent behavior was clearly raised by the evidence, and

Vaughn’s testimony explaining why a victim of domestic violence would report an

assault but then refuse to press charges, sign affidavits of nonprosecution, and

cooperate extensively with the defense was relevant to provide another possible

explanation of that behavior. See Dixon, 244 S.W.3d at 480; Capello, 2006 WL

2453021, at *4.

        Appellant contends that even if Vaughn’s testimony was relevant, it was

nevertheless inadmissible under rule 403. Under rule 403, a court may exclude

relevant evidence if its probative value is substantially outweighed by a danger of

unfair prejudice, confusion of the issues, the jury’s being misled, undue delay, or


                                        7
the needless presentation of cumulative evidence.               Tex. R. Evid. 403;

Gigliobianco v. State, 210 S.W.3d 637, 640–41 (Tex. Crim. App. 2006)

(“Relevant evidence may be excluded if its probative value is not worth the

problems that its admission may cause. The issue is whether the search for truth

will be helped or hindered by the interjection of distracting, confusing, or

emotionally charged evidence.” (quoting J. McLaughlin et al., Weinstein’s Federal

Evidence § 403.02[1][a] at 403–6 (2006 rev.)).

        In deciding whether to admit evidence over a rule 403 objection, a trial

court

        must balance (1) the inherent probative force of the proffered item of
        evidence along with (2) the proponent’s need for that evidence
        against (3) any tendency of the evidence to suggest decision on an
        improper basis, (4) any tendency of the evidence to confuse or
        distract the jury from the main issues, (5) 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 (6) the
        likelihood that presentation of the evidence will consume an
        inordinate amount of time or merely repeat evidence already
        admitted.

Id. at 641–42. We review the trial court’s decision for an abuse of discretion. Id.

at 642–43.

        Vaughn’s    expert   testimony   was   probative   to    explain   behavioral

characteristics of victims of family violence, generally, and the complainant’s

behavioral patterns by comparison. For the reasons stated above and similar to

those cited in Scugoza, Vaughn’s testimony helped explain why someone who

had been a victim of family violence would report an assault but later sign an



                                          8
affidavit of nonprosecution,6 waver in deciding to testify,7 tell different versions of

what happened to different people, and cooperate extensively with the defense.

949 S.W.2d at 363. Appellant’s argument that Vaughn did not research this

particular case, its facts, or have any interaction with or knowledge of the

complainant or appellant detracts little, if any, from the evidence’s probative

value. See id. at 361, 363; see also Tex. R. Evid. 703; Mendoza, 2015 WL

5999596, at *4 (noting that expert is not required to interview witnesses or

conduct an investigation of the facts for expert’s testimony to be admissible).

      Appellant argues that Vaughn’s testimony was unduly prejudicial because

it could have led the jury to believe that he had committed extraneous acts of

violence against the complainant or that he had engaged in the types of

controlling behavior that Vaughn had described, thus influencing the jury to

convict him for being an abuser in general. Here, Vaughn’s description of the

cycle of violence, traumatic bonding, victim behavioral characteristics, and

subsequent opinion finding similarity with the complainant’s behavioral patterns


      6
        Vaughn testified that this practice is “fairly common” at her shelter and
typically results from (1) aggressor intimidation by the aggressor himself, his
family members, or someone else, (2) fear of financial or livelihood instability, (3)
a hope that the aggressor changes, and (4) denial or minimization of abuse and
a lack of control.
      7
         Vaughn testified victims may commonly hesitate to testify because they
still value the relationship or they have experienced “traumatic bonding,” in which
victims irrationally identify with a perpetrator who is providing economic and
emotional sustenance. Alternatively, Vaughn stated victims may waver due to
brain trauma-induced swings in mood or focus.


                                          9
naturally assumes the presence of abuse, but it does not suggest a decision on

an irrational basis beyond that of the underlying assault.    See Duckett, 797

S.W.2d at 913 (noting child sexual abuse accommodation syndrome evidence

assumes the presence of abuse but properly explains sexually abused child’s

reactions to it).    And although Vaughn’s testimony tends to make the

complainant’s testimony more plausible, it is well-settled that we should not

exclude otherwise admissible substantive evidence for mere injury to an

appellant’s case. See Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App.

2013) (noting that rule 403 excludes only unfairly prejudicial evidence because

“all evidence against a defendant is, by its very nature, designed to be

prejudicial”).

       Moreover, other evidence suggested that a history of domestic violence did

exist and that the complainant’s and appellant’s relationship shared some of the

typical relationship characteristics about which Vaughn testified. From October

2014 through March 2015, the complainant was not employed. She often went

with appellant during the day while he worked in his landscaping business. The

complainant and appellant lived in appellant’s father’s and stepmother’s home

and did not pay rent. Appellant was allowed to use his parents’ truck, but the

complainant was not.     Although the complainant testified that she received

monthly checks from her father’s estate during that time, she had no car and no

cash saved.




                                       10
      The complainant testified that she referred to appellant’s father as “Big

Papa.” According to the complainant, as the police were arresting appellant and

he walked past her, he told her to “[c]all Big Papa and tell him our[8] truth,” which

she said meant “[t]o say it was all sex.” She also said, “That’s what I always told

my family.” When the complainant contacted appellant’s father before going to

the hospital, he suggested that she contact the arraignment judge. So after

leaving the hospital, she waited five hours in the parking lot of the Hood County

Jail until the arraignment judge arrived. She tried to prevent the judge from

signing an emergency protective order, but the judge would not consider her

request.   In explaining why she went to see the arraignment judge, the

complainant explained that she “was just trying to right my wrongs,” which meant

that she “had to make it right” and that appellant “couldn’t get in trouble.” She

further stated, “[Appellant] always told me to right my wrongs.”9        [Emphasis

added.]

      The complainant testified that appellant’s attorney called the day after

appellant’s arrest and told her that she could sign an affidavit of nonprosecution.

As the complainant was leaving for the attorney’s office, appellant’s stepmother


      8
        The jury could have reasonably inferred that “our truth” was different from
“the truth.” See, e.g., Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013).
      9
       The complainant admitted whispering, “Don’t let him go,” during a meeting
at the prosecutor’s office because she “couldn’t right this wrong, . . . and he was
going to be mad. He was going to be mad because I couldn’t get this one right.”


                                         11
drove up, so the stepmother drove the complainant. The complainant testified

that she lied in the affidavit so that appellant would not “get in trouble” because

he was “all [she] had”: “He protected me. I had to protect him.” In reference to

her statement in the affidavit that nothing had happened, she testified, while

crying, “And I did our truth:   It was rough sex. I did. I did.      I tried.”   The

complainant also signed the second affidavit of nonprosecution at appellant’s

attorney’s office.

      Finally, after appellant was arrested and the complainant returned to his

parents’ house, appellant’s parents told her that she had to move out in four

days. The complainant had already told them that she was not going to fight

them because she knew that appellant would “come home,” so she would go

somewhere else instead. The police took her to a safe house.

      Thus, there was evidence before the trial court that the complainant was

financially dependent on appellant and his parents––consistent with a typical

victim’s motive to recant––that appellant appeared to be in a position of power

and control in the relationship, both economically and sexually, and that the

complainant was afraid of what would happen after she called the police and

appellant was arrested. Vaughn’s general testimony––which she made clear

was not based upon any knowledge of the complainant or the relationship

between appellant and the complainant––was no more likely to suggest that

appellant was an abuser in general than this specific testimony of the

complainant.


                                        12
      Appellant’s reliance on the analysis in Gonzalez v. State, No. 03-07-

00323-CR, 2008 WL 2736889 (Tex. App.––Austin July 10, 2008, pet. ref’d)

(mem. op., not designated for publication), is misplaced.         In that case, the

evidence showed that Gonzalez, who was married to but separated from the

complainant, took her to a motel against her will and forced her inside after the

complainant had met him to discuss their income tax refund. Id. at *1. The

complainant cried out to a maid who was standing nearby. Id. The maid notified

the front desk attendant, who called the room; when Gonzalez answered and

said he and his wife were having marital difficulty and everything was fine, the

motel staff accepted his answer and did not take any other action. Id. After

Gonzalez threw the complainant on the bed and tried to gag her, she became

afraid; after initially refusing his requests for sex, she finally agreed because she

was afraid she “wouldn’t walk out of that room alive” if she did not. Id. at *2.

Afterward, the complainant accompanied Gonzalez to a restaurant, where she

called her divorce attorney and 911 from the restroom.          Id.   Gonzalez was

charged with and convicted of aggravated kidnapping and aggravated sexual

assault. Id. at *1.

      Over Gonzalez’s rule 403 objection, the trial court admitted testimony from

a San Marcos police officer about the cycle of domestic violence and why a

victim would return to an abuser or keep the abuse secret. Id. at *4–5. The trial

court also allowed the officer to testify about an unrelated investigation in which

she had been involved; in that case, the wife had been abused and sexually


                                         13
assaulted by her husband for years but did not call the police until the husband

strangled her and she lost consciousness. Id. at *5. The State contended that

the evidence rebutted the defense’s theory that the entire encounter with the

complainant was consensual as supported by the evidence that she did not cry

out or try to get help when they were leaving the motel and that no one heard any

unusual noises from outside the motel room during the alleged assault. Id.

      The Austin court of appeals held that the evidence was inadmissible under

rule 403. Id. The court concluded that the testimony had very little probative

value because no evidence showed (1) that the complainant had displayed the

typical characteristics of an abused spouse that had been described by the

officer, (2) that the complainant delayed in making an outcry, or (3) that the

complainant’s version of events was inconsistent.       Id.   Moreover, the same

evidence failed to explain why the complainant would have cried out when she

and Gonzalez were entering the room but not when they were leaving. Id. The

court thus concluded that the slight probative value of the evidence was

substantially outweighed by the danger of raising a suspicion in the jurors’ minds

that Gonzalez had abused the complainant in the past. Id.

      Gonzalez is thus distinguishable from this case, in which the expert’s

testimony was relevant and other evidence tended to show that appellant had

assaulted the complainant in the past. We therefore conclude that the probative

value of the evidence was not substantially outweighed by the possibility of unfair

prejudice derived from an inference that appellant had engaged in abusive


                                        14
conduct described beyond the offense for which he was on trial. Accordingly, the

trial court did not abuse its discretion by admitting Vaughn’s expert testimony

under rule 403. See Cohn v. State, 849 S.W.2d 817, 820–21 (Tex. Crim. App.

1993).

         Because the trial court did not abuse its discretion by admitting the

evidence over appellant’s rule 403 and 702 objections, we overrule appellant’s

point.

                                  Conclusion

         Having overruled appellant’s sole point, we affirm the trial court’s

judgment.

                                                 PER CURIAM

PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.

DAUPHINOT, J., dissents without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 25, 2016




                                       15
