                                                                                          ACCEPTED
                                                                                       05-14-01097-cr
                                                                           FIFTH COURT OF APPEALS
                                                                                      DALLAS, TEXAS
                                                                               10/30/2015 11:39:39 AM
                                                                                           LISA MATZ
                                                                                               CLERK




                                                                                                             5th Court of Appeals
                                                                                                              FILED: 11/03/15
                                                                                          Lisa Matz, Clerk
                            The State Requests Oral Argument Only If Appellant Argues

                        NO. 05-14-01097-CR       RECEIVED IN
                                            5th COURT OF APPEALS
                                                DALLAS, TEXAS
                 IN THE COURT OF APPEALS 10/30/2015 11:39:39 AM
              FOR THE FIFTH DISTRICT OF TEXAS LISA    MATZ
                                                   Clerk
                             AT DALLAS


                         DANIEL MAVERO,
                           APPELLANT

                                    vs.

                      THE STATE OF TEXAS,
                           APPELLEE

              On appeal from the County Criminal Court No. 10
                           Dallas County, Texas
                         Cause No. MA13-71667-L


                          STATE’S BRIEF

                                      Counsel of Record:

SUSAN HAWK                            KAREN R. WISE
CRIMINAL DISTRICT ATTORNEY            ASSISTANT DISTRICT ATTORNEY
DALLAS COUNTY, TEXAS                  STATE BAR NO. 21810200
                                      FRANK CROWLEY COURTS BUILDING
                                      133 N. RIVERFRONT BLVD., LB-19
                                      DALLAS, TEXAS 75207-4399
                                      (214) 653-3637
                                      karen.wise@dallascounty.org

                      Attorneys for the State of Texas
                                           TABLE OF CONTENTS

TABLE OF CONTENTS .................................................................................................... ii

INDEX OF AUTHORITIES .............................................................................................. iv

STATEMENT OF THE CASE ........................................................................................... 1

SUMMARY OF ARGUMENT ........................................................................................... 1

ARGUMENT....................................................................................................................... 3

    RESPONSE TO POINT 1.............................................................................................. 3

         THE EVIDENCE IS SUFFICIENT TO PROVE THAT APPELLANT
         VIOLATED THE PROTECTIVE ORDER.

    RESPONSE TO POINT 2............................................................................................ 17

         THE TRIAL COURT DID NOT EGREGIOUSLY HARM
         APPELLANT BY FAILING TO INSTRUCT THE JURY THAT IT
         HAD TO FIND THAT APPELLANT ATTENDED THE
         PROTECTIVE ORDER PROCEEDING.

    RESPONSE TO POINT 3............................................................................................ 17

         THE TRIAL COURT DID NOT EGREGIOUSLY HARM
         APPELLANT BY FAILING TO DEFINE “FAMILY” AND
         “HOUSEHOLD” IN THE JURY CHARGE.

    RESPONSE TO POINT 4............................................................................................ 23

         THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
         OVERRULING APPELLANT’S OBJECTIONS TO EVIDENCE OF
         EXTRANEOUS OFFENSES.

    RESPONSE TO POINT 5............................................................................................ 38

         THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
         OVERRULING APPELLANT’S MOTION FOR MISTRIAL FOR
         LACK OF NOTICE OF CERTAIN EXTRANEOUS OFFENSES.




                                                               ii
  RESPONSE TO POINT 6............................................................................................ 38

      THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
      OVERRULING APPELLANT’S REQUEST FOR A JURY
      INSTRUCTION TO DISREGARD FOR LACK OF NOTICE OF
      CERTAIN ALLEGED EXTRANEOUS OFFENSES.

CERTIFICATE OF SERVICE AND WORD-COUNT COMPLIANCE ......................... 48




                                                       iii
                                     INDEX OF AUTHORITIES

Cases

Abdnor v. State,
  871 S.W.2d 726 (Tex. Crim. App. 1994) ...................................................................... 18

Almanza v. State,
  686 S.W.2d 157 (Tex. Crim. App. 1984) ...................................................................... 18

Alvarado v. State,
  912 S.W.2d 199 (Tex. Crim. App. 1995) ...................................................................... 18

Bonham v. State,
  680 S.W.2d 815 (Tex. Crim. App. 1984) ...................................................................... 10

Brooks v. State,
  323 S.W.3d 893 (Tex. Crim. App. 2010) ........................................................................ 8

Delgado v. State,
  235 S.W.3d 244 (Tex. Crim. App. 2007) ...................................................................... 19

Dillard v. State,
  No. 05-00-01745-CR, 2002 Tex. App. LEXIS 9151 (Tex. App. – Dallas Dec. 20, 2002,
  no pet.) (not designated for publication) ....................................................................... 12

Edwards v. State,
  106 S.W.3d 833 (Tex. App. – Dallas 2003, pet. ref’d) ................................................. 43

Ethington v. State,
  819 S.W.2d 854 (Tex. Crim. App. 1991) ...................................................................... 34

Gardner v. State,
  No. 05-05-00750-CR, 2006 Tex. App. LEXIS 4417 (Tex. App. – Dallas May 24, 2006,
  no pet.) (mem. op., not designated for publication) .......................................... 12, 13, 21

Gaw v. State,
  No. 05-08-00463-CR, 2009 Tex. App. LEXIS 9652 (Tex. App. – Dallas Dec. 17, 2009,
  no pet.) (not designated for publication) ........................................................... 11, 12, 13

Green v. State,
  934 S.W.2d 92 (Tex. Crim. App. 1996) ........................................................................ 32



                                                         iv
Hailey v. State,
  87 S.W.3d 118 (Tex. Crim. App. 2002) ........................................................................ 30

Harris v. State,
  784 S.W.2d 5 (Tex. Crim. App. 1989) .......................................................................... 29

Harvey v. State,
  78 S.W.3d 368 (Tex. Crim. App. 2002) .................................................................. 19, 20

Hawkins v. State,
  135 S.W.3d 72 (Tex. Crim. App. 2004) ........................................................................ 44

Hinojosa v. State,
  4 S.W.3d 240 (Tex. Crim. App. 1999) ............................................................................ 44

Hoopes v. State,
  438 S.W.3d 93 (Tex. App. – Amarillo 2014, pet. ref’d) ......................................... 14, 15

Hudson v. State,
  675 S.W.2d 320 (Tex. App. – Dallas 1984, pet. ref’d) ............................................. 8, 10

Hull v. State,
  67 S.W.3d 215 (Tex. Crim. App. 2002) ........................................................................ 47

Hutch v. State,
  922 S.W.2d 166 (Tex. Crim. App. 1996) ...................................................................... 18

Jackson v. Virginia,
  443 U.S. 307 (1979) ........................................................................................................ 8

Johnson v. State,
  571 S.W.2d 170 (Tex. Crim. App. 1978) ...................................................................... 10

Johnson v. State,
  967 S.W.2d 410 (Tex. Crim. App. 1998) ........................................................................ 8

King v. State,
  953 S.W.2d 266 (Tex. Crim. App. 1997) ...................................................................... 36

Kitchens v. State,
  823 S.W.2d 256 (Tex. Crim. App. 1991) ................................................................ 13, 21

Ladd v. State,
  3 S.W.3d 547 (Tex. Crim. App. 1999) .................................................................... 43, 44



                                                               v
Lockhart v. Nelson,
  488 U.S. 33 (1988) .......................................................................................................... 8

Middleton v. State,
  125 S.W.3d 450 (Tex. Crim. App. 2005) ...................................................................... 17

Montez v. State,
 975 S.W.2d 370 (Tex. App. – Dallas 1998, no pet.) ..................................................... 36

Montgomery v. State,
 810 S.W.2d 372 (Tex. Crim. App. 1990) ................................................................ 32, 33

Morales v. State,
 32 S.W.3d 862 (Tex. Crim. App. 2000) ....................................................................... 36

Morgan v. State,
 Nos. 10-10-00367-CR & 10-10-00371-CR, 2011 Tex. App. LEXIS 8133 (Tex. App. –
 Waco Oct. 12, 2011, no pet.) (mem. op., not designated for publication) .............. 19, 22

Motilla v. State,
 78 S.W.3d 352 (Tex. Crim. App. 2002) ........................................................................ 36

Neal v. State,
  256 S.W.3d 264 (Tex. Crim. App. 2008) ...................................................................... 31

Ovalle v. State,
  13 S.W.3d 774 (Tex. Crim. App. 2000) ........................................................................ 46

Purtell v. State,
  761 S.W.2d 360 (Tex. Crim. App. 1988) ...................................................................... 30

Richardson v. State,
  879 S.W.2d 874 (Tex. Crim. App. 1993) ...................................................................... 18

Roberts v. State,
  849 S.W.2d 407 (Tex. App. – Fort Worth 1993, pet. ref’d) .......................................... 18

Santellan v. State,
  939 S.W.2d 155 (Tex. Crim. App. 1997) ...................................................................... 33

Simpson v. State,
  119 S.W.3d 262 (Tex. Crim. App. 2003) ...................................................................... 46

State v. Boyd,
  202 S.W.3d 393 (Tex. App. – Dallas 2006, pet. ref’d) ................................................. 43

                                                               vi
Taylor v. State,
  106 S.W.3d 827 (Tex. App. – Dallas 2003, no pet.) ....................................................... 8

Williams v. State,
  547 S.W.2d 18 (Tex. Crim. App. 1977) ........................................................................ 19

Wise v. State,
  364 S.W.3d 900 (Tex. Crim. App. 2012) ........................................................................ 8

Yazdchi v. State,
  428 S.W.3d 831 (Tex. Crim. App. 2014) ...................................................................... 29

Young v. State,
  283 S.W.3d 854 (Tex. Crim. App. 2009) ........................................................................ 8

Statutes

Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007) ......................................................... 19

Tex. Fam. Code Ann. § 71.003 (West 2014)................................................................. 9, 21

Tex. Fam. Code Ann. § 82.043 (West 2014)..................................................................... 20

Tex. Fam. Code Ann. § 85.001(a) (West 2008) ................................................................ 15

Tex. Fam. Code Ann. § 85.006(a) (West 2014) ................................................................ 15

Tex. Fam. Code Ann. § 85.022(b) (West 2014) ................................................................ 16

Tex. Fam. Code Ann. § 85.025(a) (West 2014) ................................................................ 16

Tex. Fam. Code Ann. § 85.026 (West 2014)..................................................................... 16

Tex. Fam. Code Ann. § 85.042(a) (West 2014) ................................................................ 16

Tex. Pen. Code Ann. § 25.07 (West Supp. 2014) ......................................................... 1, 21

Tex. Pen. Code Ann. § 25.07(a)(2)(C) (West Supp. 2014) ................................................. 9

Tex. Pen. Code Ann. § 25.07(b) (West Supp. 2014) ........................................................... 9

Other Authorities

42 George E. Dix & Robert O. Dawson, Criminal Practice and Procedure § 36.11
  (Texas Practice 1995) .................................................................................................... 19


                                                             vii
Rules

TEX. R. APP. P. 33.1(a) ................................................................................................ 29, 47

Tex. R. App. P. 33.1(a)(1)(A) ............................................................................................ 31

Tex. R. App. P. 44.2(b)...................................................................................................... 36

Tex. R. Evid. 103(a)(1) ...................................................................................................... 31

Tex. R. Evid. 401 ............................................................................................................... 32

Tex. R. Evid. 402 ............................................................................................................... 32

Tex. R. Evid. 403 ............................................................................................................... 32

Tex. R. Evid. 404(b) .................................................................................................... 30, 33




                                                               viii
TO THE HONORABLE COURT OF APPEALS:

      The State of Texas submits this brief in reply to the brief of Appellant.



                         STATEMENT OF THE CASE

      After pleading not guilty, Appellant was convicted by a jury of violation of a

protective order. (CR1: 16). See Tex. Pen. Code Ann. § 25.07 (West Supp. 2014).

The court set punishment at 365 days’ confinement in the Dallas County Jail and a

fine of $150. (CR1: 16). The trial court certified that Appellant has the right to

appeal. (CR1: 7). Appellant’s notice of appeal was timely filed. (CR1: 8).



                         SUMMARY OF ARGUMENT

      Response to Point 1: The evidence is sufficient to support Appellant’s

conviction for violation of a protective order. The State proved that Appellant was

a member of the complainant’s family since he was the father of her child. The

State proved that Appellant was aware of the protective order. The language in the

protective order meets the requirements of chapter 85 and is sufficient to support

the jury’s finding beyond a reasonable doubt that the protective order was issued

under the authority of chapter 85.

      Response to Point 2: Although the jury charge did not include a definition

of the term “in violation of an order issued under Section 6.504 or Chapter 85,

                                         1
Family Code [or] under Article 17.292, Code of Criminal Procedure,” no egregious

error occurred because the term means “in violation of an order that was issued

under one of those statutes at a proceeding that the defendant attended or at a

hearing held after the defendant received service of the application for a protective

order and notice of the hearing.” The protective order itself noted that Appellant

did not appear at the hearing but he was “duly and properly cited.”

      Response to Point 3: Although the jury charge did not include a definition

of the terms “family” or “household,” no egregious error occurred because

Appellant and the complainant had a child together. The Family Code’s definition

of family is not significantly different from the commonly known definition. The

omission of the definition of “household” was not harmful as there was no

evidence that Appellant and Sheppard were part of the same household.

      Response to Point 4: The court did not abuse its discretion in overruling

Appellant’s objections concerning extraneous offenses. Appellant’s objections

regarding improper character evidence and relevance were properly overruled, and

Appellant did not timely or specifically object to the remainder of the

complainant’s testimony regarding the extraneous offenses.

      Response to Point 5: The court did not abuse its discretion in denying

Appellant’s motion for mistrial. Appellant asked for a mistrial so that the defense

investigator could go through call logs and see if he could find records of certain

                                         2
emails and phone calls. However, the purpose of a mistrial is to remedy extreme

circumstances involving incurable prejudice, not to allow one party to go look for

evidence. Therefore, the mistrial was properly denied.

      Response to Point 6: The court did not abuse its discretion in denying

Appellant’s request for an instruction to disregard because the jury first heard the

testimony in question more than 18 hours before Appellant requested the

instruction to disregard. The court could reasonably have determined that no

instruction to disregard would remove the evidence from the jury’s mind and

mentioning the specific evidence in question would only have emphasized it.



                                   ARGUMENT

                            RESPONSE TO POINT 1

      THE EVIDENCE IS SUFFICIENT TO PROVE THAT
      APPELLANT VIOLATED THE PROTECTIVE ORDER.

      Appellant claims that the evidence is legally insufficient to prove that he

violated the protective order. Appellant is incorrect.

                                  Relevant Facts

      Jennifer Sheppard, the complainant, testified that Appellant is her child’s

father. (RR2: 113). Sheppard met Appellant in December 2009 and they had a

sexual relationship that resulted in the birth of her son Jahene, who was 2 years old


                                          3
at the time of trial. (RR2: 115-16). Sheppard was concerned for the safety of

herself and Jahene because Appellant sent emails to her at work saying that he was

going to kill her. (RR2: 116-17,119). These email threats upset Sheppard very

much. (RR2: 118). Sheppard filed for the protective order in child support court.

(RR2: 119-20).     Sheppard recalled that Appellant was present during the

proceeding when the protective order was issued. (RR2: 120). Sheppard had

personal knowledge that Appellant knew of the protective order. (RR2: 120). The

protective order was admitted into evidence without objection. (RR2: 121-22).

The order prohibited Appellant from “communicating in any manner” with

Sheppard or her son Jahene. (RR2: 121-22; State’s Exhibit 1).

      On December 2, 2013, Sheppard was at work as a medical clerk at the

Dallas VA Medical Center in Dallas County. (RR2: 123). Around 3:30 p.m.,

Appellant called Sheppard and said, “[D]o not hang up the phone.” (RR2: 125).

Sheppard hung up the phone. (RR2: 125). Sheppard recognized Appellant’s voice

and knew it was him calling her. (RR2: 125-26). Sheppard stated, “If y’all dated

someone that - - for so long or talked to, you’re going to recognize their voice.

Even though they’re not in front of you, you know who calls you . . . You don’t

have to see them, you know who calls.”          (RR3: 32-33).    Appellant knew

Sheppard’s work phone number because she had given it to him. (RR2: 129).




                                        4
Sheppard also recognized that Appellant was in her building because the main

number of the hospital showed on her caller ID. (RR2: 125-26).

      Sheppard did not believe this was an accidental phone call because

Appellant would “call just to harass [her], just to make [her] upset” if she did not

respond to him through email. (RR2: 129). Appellant had communicated with

Sheppard several times before through email. (RR2: 130). Sheppard knew the

emails were from him because of the personal details. (RR2: 131). Sheppard did

not want to talk to Appellant and did not reply to the emails because he would start

harassing her and making threats. (RR2: 131). Sheppard called the VA police,

showed them the protective order, and said that Appellant was inside the building.

(RR2: 126; RR3: 19). Sheppard kept a copy of the protective order in her desk

drawer in case Appellant showed up at the clinic “like he always does.” (RR2:

126-28). Appellant was a veteran. (RR2: 127).

      VA Hospital Police Officer Steven Girard testified that on December 2,

2013, he took a report from Sheppard about this phone call she had received from

her ex-boyfriend. (RR3: 35-36). Girard noticed that Sheppard was visibly upset

and still thought Appellant was in the building. (RR3: 37). Sheppard recalled that

after she made her report to the VA officers, the officers “went towards his clinic,”

but the clerk stated “that he left for the day” so the officers did not find Appellant.

(RR3: 25). Officer Girard confirmed that all six of the VA officers looked for

                                          5
Appellant but did not find him. (RR3: 37). The VA Hospital had nine floors, with

lots of rooms and hallways, so it was not possible for six officers on patrol to have

eyes on the entire building. (RR3: 44). It took the officers about 15 minutes to

reach Sheppard and talk to her, and it would have only taken someone about 5

minutes to leave the VA Hospital. (RR3: 38). It was possible for Appellant to

walk in and walk out of the VA Hospital with no one seeing him. (RR3: 45).

Girard stated that the VA Hospital is a busy place around 3:00 p.m. (RR3: 46-47).

      After receiving this phone call from Appellant, Sheppard was nervous and

afraid, so she left work early. (RR3: 18-19). Sheppard’s co-workers walked

Sheppard to her car. (RR3: 25-26). Sheppard denied that the VA officers offered

to escort her from work. (RR3: 25-26). Officer Girard first said he offered

Sheppard an escort to her car, but she did not call him for an escort. (RR3: 41).

After reading his report, Officer Girard corrected himself to say he advised her to

get an escort when she left work. (RR3: 43). Officer Girard did not pull video

surveillance because he did not have access to those cameras. (RR3: 39). Officer

Girard called the Dallas Police but was told he just had to make a report because

there were no witnesses that Appellant had made the phone call. (RR3: 37).

      Dallas Police Officer Barbara Chandler took Sheppard’s report on December

3, 2013, for this offense that had occurred the day before. (RR2: 90-91,93).

Officer Chandler stated that she would not have made a report for violation of a

                                         6
protective order if Sheppard did not have a valid protective order. (RR2: 94).

Sheppard gave Detective Chandler Appellant’s appointment list showing that he

had an appointment on December 2. (RR3: 29-30).

      Sheppard stated that she did not look at Appellant during her testimony

because he scares Sheppard. (RR3: 20). Sheppard confirmed that Appellant had

not contacted her since December 2. (RR3: 32).

      Dallas Police Detective David Weisskopf, a domestic violence detective,

testified that he contacted Sheppard, had her fill out an affidavit, and filed the case.

(RR2: 100). Detective Weisskopf also obtained a report on this incident from the

police department at the VA Hospital. (RR2: 100; RR3: 51). Detective Weisskopf

determined that Sheppard’s protective order was valid and that Appellant had

communicated with her by making a phone call. (RR2: 100, 103-104). Detective

Weisskopf did not need to obtain any phone records “to make [his] case” because

Sheppard provided him with information that an offense had occurred, he had no

reason to doubt what Sheppard told him, and pulling phone records would not have

shown who made the phone call. (RR2: 110-11).

                             The Evidence is Sufficient

      When a claim is made that the evidence is insufficient, this Court’s standard

of review is whether, after viewing the evidence in the light most favorable to the

verdict, any rational trier of fact could have found the essential elements of the

                                           7
crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);

Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012); Brooks v. State, 323

S.W.3d 893, 912 (Tex. Crim. App. 2010).            Appellate courts conducting a

sufficiency review consider all of the evidence, whether or not properly admitted.

Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Johnson v. State, 967 S.W.2d 410,

411-12 (Tex. Crim. App. 1998); Taylor v. State, 106 S.W.3d 827, 830 (Tex. App. –

Dallas 2003, no pet.).

      Further, such a review recognizes that it is within the factfinder’s exclusive

realm “to resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic to ultimate facts.” Young v. State, 283 S.W.3d

854, 861 (Tex. Crim. App. 2009) (citing Jackson, 443 U.S. at 317-19). The jury as

factfinder is free to accept or reject any and all evidence presented by either side.

Hudson v. State, 675 S.W.2d 320, 322 (Tex. App. – Dallas 1984, pet. ref’d).

Under this standard, the evidence in this case, as set out above, is sufficient to

show that Appellant committed this offense as alleged in the information.

      The information charged that Appellant did the following:

      then and there intentionally and knowingly communicate in any
      manner with JENNIFER SHEPPARD, hereinafter called complainant,
      a protected individual and a member of the family and household, and
      not through an attorney or person appointed by the court, by
      CONTACTING COMPLAINANT VIA TELEPHONE, in violation of
      an order issued by the 330TH JUDICIAL DISTRICT COURT of
      DALLAS County, TEXAS, signed by the Court on THE 5TH DAY OF
      NOVEMBER, 2013, under authority of Section 6.504 and Chapter 85
                                         8
      of the Family Code and Article 17.292 of the Code of Criminal
      Procedure, and said communication was prohibited by the aforesaid
      order.

(CR1: 10). Appellant argues that the evidence was insufficient to prove: (1) that he

was a member of the complainant’s family and household; (2) that he had notice of

the protective order or attended the protective order proceeding; and (3) that the

protective order was issued under the authority of the alleged statutes.

(Appellant’s brief at 30-34).

             (1) Appellant was a member of the complainant’s family.

      The statute prohibiting violations of a protective order, Tex. Pen. Code Ann.

§ 25.07(a)(2)(C) (West Supp. 2014), provides that a person commits an offense if,

in violation of an order issued one of the listed statutes, the person knowingly or

intentionally communicates “in any manner with the protected individual or a

member of the family or household except through the person's attorney or a

person appointed by the court, if the violation is of an order described by this

subsection and the order prohibits any communication with a protected individual

or a member of the family or household.” Tex. Pen. Code Ann. § 25.07(b) (West

Supp. 2014) provides that for purposes of the statute, “family” has the meaning

assigned by Chapter 71 of the Family Code. Tex. Fam. Code Ann. § 71.003 (West

2014) states that the term “Family” includes “individuals who are the parents of the

same child, without regard to marriage.”

                                           9
      In the instant case, Jennifer Sheppard testified that Appellant was her child’s

father. (RR2: 113). Sheppard met Appellant in December 2009 and they had a

sexual relationship that resulted in the birth of her son Jahene. (RR2: 115-16).

Appellant argues that there was no other evidence that he was a member of the

complainant’s family because the State presented no DNA evidence and Appellant

did not acknowledge his paternity. (Appellant’s brief at 29). But that is beside the

point. Sheppard’s testimony, if believed by the jury, was sufficient to prove that

Appellant was her child’s father and no other evidence was needed.

      The trier of fact is the sole judge of the credibility of the witnesses and the

weight to be given their testimony so that the trier of fact may accept or reject any

or all of the testimony of any witness. Bonham v. State, 680 S.W.2d 815, 819

(Tex. Crim. App. 1984); Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App.

1978); Hudson v. State, 675 S.W.2d 320, 322 (Tex. App. – Dallas 1984, pet. ref’d).

In the instant case, the jury exited the courtroom to begin deliberations at 1:25 p.m.

and returned to the courtroom with a verdict against Appellant at 1:50 p.m. (RR3:

75). Because the jury found Appellant guilty of the offense so quickly, the jury

clearly found Sheppard to be credible and believed that Appellant was a member of

Sheppard’s family. The evidence as presented was sufficient to establish that

Appellant was the father of Sheppard’s child and, therefore, was a member of her

family.

                                         10
                  (2) Appellant was aware of the protective order.

      Appellant argues that there was no evidence that he knowingly or

intentionally violated the protective order because there was no evidence that he

had notice of the protective order or was served with a copy of the protective order.

Appellant notes that the protective order states that he was not present when the

protective order was granted. The State acknowledges that the protective order

states that Appellant “did not appear and wholly made default” at the protective

order hearing. (State’s Exhibit 1, page 1). However, the protective order also

states that Appellant did not appear “although duly and properly cited.” (State’s

Exhibit 1, page 1).     The protective order further states that “all necessary

prerequisites of the law have been satisfied.” (State’s Exhibit 1, page 1). Thus, the

protective order itself states that Appellant was duly and properly cited and all

necessary prerequisites of the law were satisfied.

      In Gaw v. State, No. 05-08-00463-CR, 2009 Tex. App. LEXIS 9652, at *18

(Tex. App. – Dallas Dec. 17, 2009, no pet.) (not designated for publication), the

protective order stated that Gaw had been “duly and properly cited,” that he did not

appear, and that “all necessary prerequisites of the law have been satisfied and that

this Court has jurisdiction over the parties and the subject matter of this cause.”

This Court determined that the recitals in the order that Gaw was duly and properly

cited and failed to appear, and that the court had jurisdiction over the parties, was

                                         11
“evidence the protective order was valid and issued after notice and hearing as

required by the family code.” Gaw, 2009 Tex. App. LEXIS 9652, at *18 (citing

Dillard v. State, No. 05-00-01745-CR, 2002 Tex. App. LEXIS 9151, at *3, *5

(Tex. App. – Dallas Dec. 20, 2002, no pet.) (not designated for publication)). The

language in the instant case is identical to that in Gaw.

      Moreover, Sheppard testified that based on her personal knowledge,

Appellant “knew of this protective order.”        (RR2: 120).   This testimony by

Sheppard was sufficient to prove that Appellant knew the protective order was in

place. Thus, when Appellant violated the protective order by calling Sheppard, he

did so knowingly and intentionally.

          (3) The order was issued under chapter 85 of the Family Code.

      Appellant claims the evidence is insufficient to prove that the protective

order was issued under the authority of the statutes set out in § 25.07.        The

information in this case alleged that the protective order was issued “under

authority of Section 6.504 and Chapter 85 of the Family Code and Article 17.292

of the Code of Criminal Procedure.” (CR1: 10). Although the statutes were

alleged conjunctively in the information, the State was only required to prove the

protective order was issued under any one of them. See Gardner v. State, No. 05-

05-00750-CR, 2006 Tex. App. LEXIS 4417, at *5 (Tex. App. – Dallas May 24,

2006, no pet.) (mem. op., not designated for publication) (citing Kitchens v. State,

                                          12
823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (holding that “although the

indictment may allege the differing methods of committing the offense in the

conjunctive, it is proper for the jury to be charged in the disjunctive.”). Because

the hypothetically correct charge in this case would have submitted the statutory

authority for the protective order disjunctively, the verdict should be sustained if

the evidence is sufficient to support a finding of guilt under any of the theories

submitted. Gardner, 2006 Tex. App. LEXIS 4417, at *5; Kitchens, 823 S.W.2d at

258.

       Two cases are helpful in determining whether the State has sufficiently

proven that the protective order was issued under the authority of any of the listed

statutes. In Gaw, 2009 Tex. App. LEXIS 9652, the defendant was charged by

information with violating a protective order that was issued “under authority of

Section 6.504 and Chapter 85 of the Family Code of Texas.” Gaw at *5-6. The

State presented no direct testimony that the protective order was issued under the

authority of chapter 85 of the family code. Id. at *15. Instead, the order itself was

admitted into evidence. Id. The order specifically stated that family violence had

occurred and is likely to occur in the future, as required by section 85.001(a). Id.

at *15. It also stated that Gaw had been duly and properly cited, and that he did

not appear. Id. (citing Tex. Fam. Code § 85.006(a)). It prohibited the defendant

from committing family violence, communicating directly with the victim in a

                                         13
threatening or harassing manner, communicating a threat through any person to the

victim, going to or near her residence or place of employment, and possessing a

firearm or ammunition. Id. at *15-16 (citing Tex. Fam. Code § 85.022(b)). It was

effective for two years. Id. at *16 (citing Tex. Fam. Code § 85.025(a)). It required

that a copy of the order be delivered to the sheriff and the appropriate constable of

the county. Id. (citing Tex. Fam. Code § 85.042).

       In addition to these findings and orders in the protective order itself, the trial

court, at the request of the State, took judicial notice of chapter 85 of the Family

Code and incorporated a photocopy of the full text of chapter 85 into the court’s

jury charge. Id. This Court held that, even with no direct testimony regarding

under what authority the order issued, the language in the order plus the court’s

judicial notice of chapter 85 supported the jury’s finding beyond a reasonable

doubt that the protective order was issued under the authority of chapter 85. Id. at

*17.

       Conversely, in Hoopes v. State, 438 S.W.3d 93, 95 (Tex. App. – Amarillo

2014, pet. ref’d), Hoopes was indicted for violating a protective order, but the

indictment did not allege the statutory authority under which the protective order

was issued, and the evidentiary record was “silent on the question.” The Amarillo

Court of Appeals held the evidence was insufficient on this silent record. Id. at 96.

The court specified that an element of the offense of the violation of a protective

                                           14
order is proof of the specific statutory provision under which the protective order

was issued, and that the State failed to prove under what provision the order had

been issued. Id. at 95-96. The court distinguished the case from Gaw, noting that

the protective order in Gaw had, on its face, made the findings required by chapter

85 and that the trial court took judicial notice of chapter 85 of the Family Code and

attached a photocopy of it to the jury charge, while “[n]othing similar occurred

here.” Hoopes, 438 S.W.3d at 96.

      In the instant case, the evidence is more like that in Gaw than in Hoopes, and

it is therefore sufficient to show that the protective order was issued under the

authority of chapter 85 of the Family Code. While there was no direct testimony

regarding under what authority the order issued, the provisions in the order itself

indicated it was issued under chapter 85. The protective order, which was admitted

into evidence, found that “family violence has occurred” and “family violence is

likely to occur in the future.” (State’s Exhibit 1, page 1). These findings are

required for a protective order involving family violence under Tex. Fam. Code

Ann. § 85.001(a) (West 2008).

      The order also stated that Appellant had been “duly and properly cited,” and

that he did not appear. See Tex. Fam. Code Ann. § 85.006(a) (West 2014). The

order prohibited Appellant from, among other things, committing family violence,

communicating directly with Sheppard in a threatening or harassing manner,

                                         15
communicating a threat through any person to her, going to or near her residence

or place of employment, going to or near her son’s child-care facilities or schools,

or possessing a firearm or ammunition. These prohibitions are authorized by Tex.

Fam. Code Ann. § 85.022(b) (West 2014). The order was effective for two years,

which is the maximum period of time allowed by Tex. Fam. Code Ann. §

85.025(a) (West 2014). The order included the warnings required by Tex. Fam.

Code Ann. § 85.026 (West 2014). It also required that a copy of the order be

delivered to the chief of police of the municipality of Dallas County, in accordance

with Tex. Fam. Code Ann. § 85.042(a) (West 2014). Thus, the protective order, on

its face, proved that it was issued under the authority of chapter 85 of the Family

Code.

        While the State in the instant case did not ask the court to take judicial notice

of chapter 85 and the court did not attach a copy of chapter 85 to its jury charge,

this distinction from Gaw does not render the evidence insufficient. Had the jury

received a hypothetically correct jury charge setting out the provisions of chapter

85 that were applicable to this case, the order contained all the findings and orders

necessary for the jury to conclude that it was issued under the authority of chapter

85.

        The language in the protective order meets the requirements of chapter 85

and is sufficient to support the jury’s finding beyond a reasonable doubt that the

                                           16
protective order was issued under the authority of chapter 85. This point is without

merit and should be overruled.



                             RESPONSE TO POINT 2

      THE TRIAL COURT DID NOT EGREGIOUSLY HARM
      APPELLANT BY FAILING TO INSTRUCT THE JURY THAT
      IT HAD TO FIND THAT APPELLANT ATTENDED THE
      PROTECTIVE ORDER PROCEEDING.

                             RESPONSE TO POINT 3

      THE TRIAL COURT DID NOT EGREGIOUSLY HARM
      APPELLANT BY FAILING TO DEFINE “FAMILY” AND
      “HOUSEHOLD” IN THE JURY CHARGE.

      In Points 2 and 3, Appellant claims that the court egregiously harmed him by

failing to instruct the jury that it had to find that Appellant attended the protective

order proceeding and by failing to define the terms “family” and “household” in

the charge. The State responds that the court charge as given did not egregiously

harm Appellant.

                There was no egregious error in the jury charge.

      Appellant made no objection to the jury charge. (RR3: 59). The first step in

a jury charge review is to determine whether error exists in the charge. Middleton

v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2005). If error is found, the

appellate court should only then analyze that error for harm.           Id.   Because


                                          17
Appellant made no objection to the jury charge, he must claim that the error was

“fundamental” and “he will obtain a reversal only if the error is so egregious and

created such harm that he ‘has not had a fair and impartial trial’ – in short

‘egregious harm.’” Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1984). An error in the charge is considered egregious if it “affects ‘the very basis

of the case,’ deprives the defendant of a ‘valuable right,’ or ‘vitally affects a

defensive theory.’” Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996)

(citing Almanza, 686 S.W.2d at 172).          The actual degree of harm must be

considered in light of the entire jury charge, the state of the evidence, the argument

of counsel, and any other relevant information revealed by the record. Id. The

purpose of this review is to illuminate the actual, not just theoretical, harm to the

accused. Almanza, 686 S.W.2d at 174; Roberts v. State, 849 S.W.2d 407, 410

(Tex. App. – Fort Worth 1993, pet. ref’d).

      Appellant has the burden of persuasion in proving the requisite degree of

harm. Alvarado v. State, 912 S.W.2d 199, 216-17 (Tex. Crim. App. 1995); Abdnor

v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994). Moreover, in making a

determination as to harm, the reviewing court “may presume that the jury acted

rationally, at least absent a showing to the contrary.” Richardson v. State, 879

S.W.2d 874, 882 (Tex. Crim. App. 1993).




                                         18
       The purpose of a jury charge is to inform the jury of the applicable law and

guide them in its application to the case. Delgado v. State, 235 S.W.3d 244, 249

(Tex. Crim. App. 2007); Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App.

1977). The trial court is required to charge the jury on the “law applicable to the

case.” Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007). This “requires that the

jury be instructed concerning each element of the offense or offenses charged. It

also requires that each statutory definition that affects the meaning of an element of

the offense must be given to the jury.” 42 George E. Dix & Robert O. Dawson,

Criminal Practice and Procedure § 36.11, at 536 (Texas Practice 1995).

                    1. Appellant knew of the order’s existence.

      Appellant cites Morgan v. State, Nos. 10-10-00367-CR & 10-10-00371-CR,

2011 Tex. App. LEXIS 8133, at *7 (Tex. App. – Waco Oct. 12, 2011, no pet.)

(mem. op., not designated for publication), for the proposition that although the

specific language of § 25.07 does not require a finding that Appellant attended the

protective order hearing, this element in some form is required to be included in

the application paragraph of the jury charge. Morgan in turn cites Harvey v. State,

78 S.W.3d 368, 372-73 (Tex. Crim. App. 2002). In Harvey, the Court of Criminal

Appeals determined that a jury charge regarding the violation of a protective order

should include a definition of the term “in violation of an order issued under

Section 6.504 or Chapter 85, Family Code [or] under Article 17.292, Code of

                                         19
Criminal Procedure.” Harvey, 78 S.W.3d at 373. The Court specified that the

term means “in violation of an order that was issued under one of those statutes at

a proceeding that the defendant attended or at a hearing held after the defendant

received service of the application for a protective order and notice of the hearing.”

Id.

      The State recognizes that such a definition was not included in the jury

charge in the instant case. Therefore, the charge was erroneous. But the failure to

include such a definition in this charge did not egregiously harm Appellant because

the protective order itself noted that Appellant did not appear at the hearing but he

was “duly and properly cited.” (State’s Exhibit 1, page 1). Tex. Fam. Code Ann. §

82.043 (West 2014) provides that notice of an application for protective order must

be served on a respondent and the respondent must receive a copy of the

application.

      Because the jury found that Appellant knowingly and intentionally violated

the protective order, the jury necessarily found that Appellant knew about the

protective order. Thus, if the jury had been instructed that it had to determine that

Appellant violated an order that was issued at a proceeding Appellant attended or

at a hearing held after Appellant received service of the application for a protective

order and notice of the hearing, the jury’s verdict would have been the same.

Appellant cannot have been harmed by the lack of an instruction regarding an issue

                                         20
that was proven by the evidence and that the jury would necessarily have found to

have occurred.

        2. Missing definitions in the charge were not egregiously harmful.

      Appellant correctly argues that the jury charge did not include definitions of

the terms “family” or “household,” as referenced in Tex. Pen. Code Ann. § 25.07

and as defined in Tex. Fam. Code Ann. § 71.003.             Because each statutory

definition that affects the meaning of an element of the offense must be given to

the jury, the court erred in failing to do so. But, again, the failure to include the

two definitions in this charge did not egregiously harm Appellant.

      Although the jury charge stated that to find Appellant guilty, the jury must

find that Appellant was a member of the complainant’s family and household, the

State was only required to prove Appellant was a member of the complainant’s

family or household. See Kitchens, 823 S.W.2d at 258 (holding that “although the

indictment may allege the differing methods of committing the offense in the

conjunctive, it is proper for the jury to be charged in the disjunctive.”).. A

hypothetically correct charge in this case would have alleged “family or

household.” See Gardner, 2006 Tex. App. LEXIS 4417, at * 5; Kitchens, 823

S.W.2d at 258.

      Section 71.003 states that the term “Family” includes “individuals who are

the parents of the same child, without regard to marriage.” The Family Code’s

                                         21
definition of family is not significantly different from the commonly known

definition. Because Appellant and Sheppard had a child together, they were a type

of family, even if they were not married. And the omission of the definition of

“household” was not harmful as there was no evidence that Appellant and

Sheppard were part of the same household. See Morgan, 2011 Tex. App. LEXIS

8133, at *24-25.

        Sheppard testified that Appellant was the father of her child. (RR2: 113).

There was no contrary evidence to dispute this fact. Sheppard testified that she had

personal knowledge that Appellant knew about the protective order. (RR2: 120).

There was no contrary evidence to dispute this fact. The protective order itself

noted that Appellant did not appear at the hearing but he was “duly and properly

cited.” (State’s Exhibit 1, page 1). There was no contrary evidence to dispute this

fact.

        During argument, defense counsel did not argue that Appellant was not the

father of Sheppard’s child. Defense counsel did not argue that Appellant was not

aware of the protective order. Instead, defense counsel stated that the issue was

“whether or not Mr. Mavero made that phone call.” (RR3: 71). Defense counsel

also argued that Sheppard lied when she said the VA police did not offer to escort

her to her car and that she lied about what she put in her written statement. (RR3:

69-70).

                                        22
      Because the errors in the jury charge involved issues that were not even

significant enough for defense counsel to dispute, and because those issues were

proven by Sheppard’s uncontradicted testimony, Appellant was not egregiously

harmed by the court’s error. Points 2 and 3 are without merit and should be

overruled.



                           RESPONSE TO POINT 4

      THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
      OVERRULING APPELLANT’S OBJECTIONS TO EVIDENCE
      OF EXTRANEOUS OFFENSES.

      Appellant claims that the court abused its discretion in overruling his

objections concerning extraneous offenses. The State responds that the court did

not abuse its discretion in admitting this evidence because Appellant’s objections

regarding improper character evidence and relevance were properly overruled.

                                 Relevant Facts

      While the prosecutor was questioning Sheppard about whether Appellant

had accidentally made the phone call in question, the prosecutor asked about other

instances where Appellant had contacted her, as follows:

      Q. Do you believe that this was an accidental phone call?

      A. No.

      Q. Why don’t you believe that?

                                        23
A. Because he always called, like, he’ll just call just to harass me, just
to make me upset. That’s how he is. If I don’t respond to him through
e-mail, he will call.

Q. Now, he’s communicated with you, obviously, several times
before; is that right?

A. Correct.

[DEFENSE COUNSEL]: Objection, Your Honor.                   Character --
improper character evidence.

THE COURT: Overrule that objection.

Q. [By [prosecutor]] He’s communicated with you several times
before?

A. Yes.

Q. But you didn’t immediately go to the authorities every time he did
that, did you?

A. No, because it would be fake e-mail addresses. It would be very
hard for me to prove that it was him.

Q. So how did you know it was him?

A. Because the things he says in his e-mail make me believe that it’s
him and I know it’s him. Nobody else talks like that except him.

Q. Talks like what?

A. Like, call me crazy and –

[DEFENSE COUNSEL]: Objection, Your Honor. Relevance.

THE COURT: I’ll sustain the objection.

A. [Continuing] Like, he –

                                   24
THE COURT: Hold on, ma'am. Wait for the next question.

Q. [By [Prosecutor]] Within these e-mails, were there any personal
details inside of them that led you to believe, okay, I know who I’m
dealing with in this e-mail?

A. Yes.

[DEFENSE COUNSEL]: Objection, Your Honor. This is still
relevance.

THE COURT: As to that question, I’ll overrule.

Q. [By Prosecutor]] What personal information was contained in those
e-mails that you personally know that was expressed through those e-
mails?

A. Like, crazy. Nobody says that except him. And he’ll, like, hey,
crazy, call me, please. He’s begging me to call him and I wouldn’t call
him. He say, please, please reply to me, and I won’t reply.

Q. Why won’t you reply?

A. Because I don’t -- I didn’t want to talk to him.

Q. Why not?

A. Because he -- All he -- Because if I respond to him and things
don’t go his way, he gonna start harassing me making threats and I
just didn’t wanna deal with it.

Q. Besides e-mails and besides this phone call that we’re talking about
today –

[DEFENSE COUNSEL]: Objection, Your Honor. Calls -- calling for
-- Excuse me. The question is irrelevant. We’re -- Counsel is getting
into information -- past information. We’re here about one phone call
today, not about previous incidences.
       We ask that you sustain the objection on relevance.

                                   25
      [PROSECUTOR]: Your Honor, I haven’t even finished my question.

      THE COURT: Okay. If you’ll -- I need to hear the rest of the question
      before I can rule on your objection.
            Go ahead, sir.

      Q. [By [Prosecutor]] Besides phone calls – I’m sorry -- the phone call
      that we’re talking about today, besides the e-mails that you’ve already
      stated, from the time the protective order was issued up until today,
      has the defendant contacted you?

      A. Yes, he did.

      Q. How so?

      A. Through an inmate that -- I guess they both –

      [DEFENSE COUNSEL]: Objection, Your Honor. Again, if we could
      approach. This goes to our motion in limine we had in our prehearing.

(RR2: 129-32). The jury was sent out of the courtroom and the parties discussed

the issues. The prosecutor noted that Appellant used other people to communicate

threats to harm Sheppard and her son. (RR2: 134). The defense objected that this

was “hearsay and kind of irrelevant” and “this is inappropriate 404(b) thing, using

other acts to show that he may have committed this act.” (RR2: 134). The

prosecutor responded that the case was not “just about a phone call” but was a

violation of a protective order which was based on abuse and family violence.

(RR2: 134). The prosecutor stated that he was not referring to anything before the

protective order was issued, but was only talking about communication between

the time of the issuance of the protective order and this trial. (RR2: 135).

                                          26
      The court noted that Sheppard’s feelings of fear were not a legal part of what

the State had to prove, so its relevancy was diminished. (RR2: 138). But the court

also noted that the defense in opening statement had said the charges were

fabricated, which made the evidence the prosecutor was trying to put in more

relevant.   (RR3: 138).   The court stated that, considering what evidence had

already been admitted, the prosecutor could ask “very generalized questions about

other acts that Mr. Mavero has committed that support the fact that you’re trying to

establish that the phone call that he made on the alleged day was intentionally --

intentional or -- done intentionally or knowingly, that it wasn’t essentially a

mistake.” (RR2: 141-42). The court ruled that the prosecutor could ask how

Sheppard felt about the contact, but could not have her discuss what was said or

done in “very specific context.” (RR2: 142-43).

      Defense counsel noted that the State had given her notice under Tex. R.

Evid. 404(b), but it only included his prior offenses and not anything about phone

calls or emails. (RR2: 143). The prosecutor stated that he had just learned about

this evidence that morning before the trial started and that there was no physical

evidence, such as the emails themselves, but merely the testimony from Sheppard

about the emails. (RR2: 144-46). Defense counsel stated that if she had known

there was going to be evidence under Tex. R. Evid. 404(b), she would have asked

for a continuance so her investigator could look into it. (RR2: 147-48).

                                        27
      When court resumed the next morning, the court noted that in an off-the-

record discussion that morning, defense counsel had given the court notice of its

intent to request a continuance to investigate the emails. (RR3: 7). The prosecutor

announced that the State would “abandon any possible evidence that we introduce

that may be 404(b) related.” (RR3: 8). Defense counsel stated that abandoning the

use of 404(b) evidence at that point “would not cure any wrongdoing” because

some evidence had already come in before the jury. (RR3: 8). And if the defense

cross-examined Sheppard on the issue, defense counsel felt she would reopen the

door to the evidence. (RR3: 8).

      Defense counsel and the prosecutor noted that “the emails that led up to the

protective order” had been provided to the defense that morning. (RR3: 8-9,13).

[These emails were not the ones that Sheppard had testified about that occurred

after the protective order was obtained because the post-protective order emails

were deleted after she received them. (RR2: 144-46).] The defense investigator

outlined some authentication issues he had with the pre-protective order emails.

(RR3: 10-12).

      The prosecutor suggested that the correct remedy would be for the court to

instruct the jury to disregard the evidence. (RR3: 13). Defense counsel noted that

several of her objections were overruled regarding the phone calls and emails.

(RR3: 14). Defense counsel asked for a limiting instruction in the jury charge and

                                        28
a verbal instruction to the jury to disregard the evidence. (RR3: 15). The court

denied the defense’s request for the continuance that had been discussed earlier

that morning. (RR3: 7,14). The court denied the request for an instruction to

disregard, but granted the request for a limiting instruction. (RR3: 15).

      When trial resumed, the prosecutor questioned Sheppard about how she felt

when she received the phone call from Appellant. (RR3: 18). Sheppard then

testified about talking to the VA police about the phone call. (RR3: 19). The

prosecutor never asked about any emails or other threatening phone calls she may

have received from Appellant. (RR3: 18-23,32-34).

            Most of the alleged error was not preserved for review.

      TEX. R. APP. P. 33.1(a) provides that, in order to present a complaint for

appellate review, the record must show that “the complaint was made to the trial

court by a timely request, objection or motion” that “stated the grounds for the

ruling that the complaining party sought from the trial court with sufficient

specificity to make the trial court aware of the complaint,” and that the court ruled

on the request, objection, or motion. An issue is not preserved for review when the

ground alleged on appeal does not comport with the trial objection. Yazdchi v.

State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014); Harris v. State, 784 S.W.2d 5,

17 (Tex. Crim. App. 1989). The reason for the contemporaneous objection rule is

to inform the trial court of the basis of the objection and give the court or the

                                         29
opposing party an opportunity to correct the error or remove the basis of the

objection. Purtell v. State, 761 S.W.2d 360, 365 (Tex. Crim. App. 1988). The

reviewing court may not reverse the trial court’s decision on a legal theory not

presented to the trial court by the complaining party. Hailey v. State, 87 S.W.3d

118, 121-122 (Tex. Crim. App. 2002).

      Appellant’s argument throughout his point of error is based on the mistaken

premise that he timely objected at trial under Tex. R. Evid. 404(b). (Appellant’s

brief at 41,43-44,51-52). In fact, Appellant made only one objection to one answer

on the grounds of improper character evidence while Sheppard was testifying

(RR2: 130) and, as discussed below, that objection was properly overruled.

Appellant did not make an objection that mentioned Rule 404(b) until after the

evidence had been admitted (RR2: 129-32) and the jury had been removed from

the courtroom (RR2: 133), when defense counsel stated, “I feel like this is

inappropriate 404(b) thing, using other acts to show that he may have committed

this act.” (RR2: 134). The other three objections that Appellant made while

Sheppard was testifying about Appellant’s phone calls and emails were all based

only on relevance. One relevance objection was sustained (RR2: 130), one was

overruled (RR2: 131), and the court did not rule on the third relevance objection

because the prosecutor had not finished his question when Appellant objected

(RR2: 131-32). Because only one objection to one answer was made on the

                                       30
grounds of improper character evidence, and Appellant’s other trial objections do

not comport with his complaint on appeal, any error has been waived as to all but

one question.

                  Appellant’s 404(b) objection was not timely.

      The State further submits that any error under Rule 404(b) was waived by

Appellant’s failure to make the objection to all but one question at the time the

testimony was offered into evidence.       To preserve a complaint for appellate

review, the complaining party must make a timely, specific objection. Tex. R.

Evid. 103(a)(1); Tex. R. App. P. 33.1(a)(1)(A); Neal v. State, 256 S.W.3d 264, 279

(Tex. Crim. App. 2008). To be adequately specific, the complaint must let the trial

judge know what he wants and why he is entitled to it. Neal, 256 S.W.3d at 279.

      As discussed in the previous section, while the evidence was being presented

and admitted into evidence, Appellant objected three times on the grounds of

relevance, and once on the ground of “improper character evidence” regarding one

question. Therefore, only the objections he actually presented to the evidence may

be considered.

                       The Evidence was Properly Admitted.

      A trial court should be allowed the discretion to exclude or admit evidence

before the jury, and an appellate court should not set aside the trial court’s ruling

absent a showing on the record that the trial court abused its discretion by acting in


                                         31
an arbitrary and unreasonable manner. Montgomery v. State, 810 S.W.2d 372,

379-380 (Tex. Crim. App. 1990). There should be reluctance on the part of an

appellate court to reverse trial court decisions that admit or exclude evidence. Id.

at 378. The fact that a trial judge may decide a matter within his discretion in a

different manner than an appellate judge does not demonstrate that an abuse of

discretion has occurred. Id. at 380. The reviewing court should not reverse a trial

judge whose ruling was within the “zone of reasonable disagreement.” Green v.

State, 934 S.W.2d 92, 101-102 (Tex. Crim. App. 1996); Montgomery, 810 S.W.2d

at 391.

      Tex. R. Evid. 401 provides that “relevant evidence” means evidence having

any tendency to make the existence of any fact that is of consequence to the

determination of the case more probable or less probable. The evidence “need not

by itself prove or disprove a particular fact to be relevant; it is sufficient if the

evidence provides a small nudge toward proving or disproving some fact of

consequence.” Montgomery, 810 S.W.2d at 376. Tex. R. Evid. 402 provides that

all relevant evidence is admissible, except as otherwise provided by statute,

constitution, or the rules of evidence. Tex. R. Evid. 403 then provides that relevant

evidence “may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, or needless presentation of cumulative evidence.”

                                         32
It is the burden of the opponent of the evidence to not only demonstrate the

negative attributes of the evidence but also to show a that these negative attributes

“substantially outweigh” any probative value. Montgomery, 810 S.W.2d at 377

(emphasis in original). Evidence is prejudicial only when it tends to have some

adverse effect upon a defendant beyond tending to prove the fact or issue that

justified its admission into evidence.” Id. at 378. An appellate court must presume

that relevant evidence is more probative than prejudicial. Santellan v. State, 939

S.W.2d 155, 169 (Tex. Crim. App. 1997).

      The only timely and specific objection Appellant made that referred to Rule

404(b) was made when the prosecutor asked Sheppard if Appellant had

communicated with her several times before. Appellant objected that this was

improper character evidence and the court overruled the objection. (RR2: 129-30).

The State submits that the court properly overruled the objection because the

prosecutor was trying to establish why Sheppard believed that the phone call

Appellant made to her office was not an accidental call. See Rule 404(b) (evidence

of extraneous offense may be admissible to prove “absence of mistake or

accident.”). The fact that Appellant had communicated with Sheppard before was

extremely relevant and probative to the issue of whether this call in question was

accidental. Moreover, because the question merely established that Appellant had

communicated with Sheppard before, the evidence was not unfairly prejudicial,

                                         33
confusing or misleading to the jury, or cumulative of other evidence. Therefore,

the trial court properly overruled the objection.

      Although Appellant complains about the evidence regarding other phone

calls and emails, Appellant did not object to most of the evidence that was

admitted about the emails and other phone calls. Appellant made no objection

when Sheppard testified to the following:

           Appellant called her just to harass and upset her. (RR2: 129).
           If Sheppard did not respond to Appellant’s emails, he would
            call her. (RR2: 129).
           Sheppard did not go to the authorities every time he contacted
            her because he used fake email addresses and it would be hard
            for her to prove it was him contacting her. (RR2: 130).
           Sheppard knew it was Appellant contacting her because of the
            things he said and the way he talked. (RR3: 130).
           Sheppard did not want to talk to Appellant because if she
            responded and “things don’t go his way,” then he would start
            harassing her and making threats. (RR2: 130-31).
           In addition to the emails and the phone call that was the subject
            of this trial, Appellant had contacted Sheppard since the
            protective order was issued. (RR2: 132).

Because Appellant made no objection to the evidence above being admitted, he

cannot now complain about it on appeal. With only two exceptions, Texas law

requires a party to continue to object each time inadmissible evidence is offered;

the two exceptions require counsel to either: (1) obtain a running objection; or (2)

request a hearing outside the presence of the jury. Ethington v. State, 819 S.W.2d

854, 858 (Tex. Crim. App. 1991). When the two exceptions are not in place, in


                                          34
order to preserve error, the objecting party must continue to object each time the

objectionable evidence is offered. Id.

      When the prosecutor asked how else Appellant had contacted her, Sheppard

responded, “Through an inmate that - - I guess they both - -.” (RR2: 132). At that

pointed, Appellant objected and approached the bench, and then the jury was

removed from the courtroom. (RR2: 132-33).       The court overruled Appellant’s

objection to evidence of the personal information contained in the email that made

Sheppard know Appellant was contacting her, such as him calling her “crazy” and

saying, “hey, crazy, call me, please” and begging her to reply. (RR2: 131). These

two issues are the only issues about which Appellant has preserved error.

Admission of the evidence that Appellant called her “crazy” and begged her to call

him is certainly not harmful, especially in light of the other evidence to which

Appellant did not object, which included evidence that Appellant had contacted her

in violation of the protective order and that if Appellant did not get his way, he

would harass and threaten her.

      The only other evidence that came in was Sheppard’s partial answer to a

question, in which she mentioned that Appellant had contacted her “Through an

inmate . . . .” (RR2: 132). Since Sheppard did not finish her sentence, however,

no harmful evidence was introduced. Therefore, no error occurred.




                                         35
                              Any error was harmless.

      Alternatively, even if this Court determines that error occurred, any error in

overruling the objections was harmless. Because Appellant is complaining about

the admission of evidence, the proper standard of review is that for

nonconstitutional errors provided in Tex. R. App. P. 44.2(b), which requires that

any “error, defect, irregularity, or variance that does not affect substantial rights

must be disregarded.” Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App.

2000).   A substantial right is affected when the error had a “substantial and

injurious” effect or influence in determining the jury’s verdict or when the error

leaves one in grave doubt about whether it had such an effect. Montez v. State, 975

S.W.2d 370, 373 (Tex. App. – Dallas 1998, no pet.). “A substantial right is not

affected and the error is harmless if, after reviewing the entire record, the appellate

court determines that the error did not influence, or had only a slight influence, on

the trial outcome.” Id. Thus, under Rule 44.2(b), unless the error had a substantial

and injurious effect or influence in determining the verdict, the error will not

constitute reversible error. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.

1997).   When conducting a harm analysis under Rule 44.2(b), overwhelming

evidence of a defendant’s guilt is a factor to be considered. Motilla v. State, 78

S.W.3d 352, 357 (Tex. Crim. App. 2002).




                                          36
      In the instant case, the complained-of testimony regarding Appellant calling

Sheppard “crazy,” begging her to call him, and contacting her through an inmate

was not substantial or injurious. There was plenty of other evidence admitted

without objection that showed Appellant contacted Sheppard repeatedly. Sheppard

testified that Appellant called her just to harass and upset her and he would call her

if she did not respond to his emails. (RR2: 129). Sheppard knew it was Appellant

contacting her because of the things he said and the way he talked. (RR2: 130).

Sheppard did not want to talk to Appellant because if she responded and “things

don’t go his way,” then he would start harassing her and making threats. (RR2:

131). Sheppard also stated that in addition to the emails, as well as the phone call

that was the subject of this trial, Appellant had contacted Sheppard other times

since the protective order was issued. (RR2: 132).

      Because of the evidence that was admitted without objection showing that

Appellant contacted Sheppard after the protective order was issued, that she did not

want to communicate with him, and that he made threats and harassed Sheppard,

the other testimony that was admitted over objection would not have had a

substantial effect on the verdict. Therefore, any error was harmless. This point is

without merit and should be overruled.




                                         37
                             RESPONSE TO POINT 5

      THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
      OVERRULING APPELLANT’S MOTION FOR MISTRIAL
      FOR LACK OF NOTICE OF CERTAIN EXTRANEOUS
      OFFENSES.

                             RESPONSE TO POINT 6

      THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
      OVERRULING APPELLANT’S REQUEST FOR A JURY
      INSTRUCTION TO DISREGARD FOR LACK OF NOTICE OF
      CERTAIN ALLEGED EXTRANEOUS OFFENSES.

      In Points 5 and 6, Appellant claims that the court abused its discretion in

overruling his motion for mistrial and his request for a jury instruction regarding

certain alleged extraneous offenses. The State responds that the court did not

abuse its discretion in denying either Appellant’s motion for mistrial or his request

for an instruction to disregard.

                                   Relevant Facts

      As discussed in the previous Response, Sheppard testified about various

phone calls and emails she received from Appellant after the protective order was

issued. When Appellant objected to Sheppard’s reference to “an inmate” and

referenced a pretrial motion in limine, the court sent the jury out of the courtroom

and the parties discussed the issues. (RR2: 132-33). The prosecutor noted that

Appellant used other people to communicate threats to harm Sheppard and her son.

(RR2: 134). The defense objected that this was “hearsay and kind of irrelevant”

                                         38
and “this is inappropriate 404(b) thing, using other acts to show that he may have

committed this act.” (RR2: 134). The prosecutor responded that the case was not

“just about a phone call” but was a violation of a protective order that was based

on abuse and family violence. (RR2: 134). The prosecutor stated that he was not

referring to anything before the protective order was issued, but was only talking

about communication between the time of the issuance of the protective order and

this trial. (RR2: 135).

      The court noted that Sheppard’s feelings of fear were not a legal part of what

the State had to prove, so its relevancy was diminished. (RR2: 138). But the court

also noted that the defense in opening statement had said the charges were

fabricated, which made the evidence the prosecutor was trying to put in more

relevant.   (RR2: 138).   The court stated that, considering what evidence had

already been admitted, the prosecutor could ask “very generalized questions about

other acts that Mr. Mavero has committed that support the fact that you’re trying to

establish that the phone call that he made on the alleged day was intentionally --

intentional or -- done intentionally or knowingly, that it wasn’t essentially a

mistake.” (RR2: 141-42). The court ruled that the prosecutor could ask how

Sheppard felt about the contact, but could not have her discuss what was said or

done in “very specific context.” (RR2: 142-43).




                                        39
      Defense counsel noted that the State had given her notice under Tex. R.

Evid. 404(b), but it had only included his prior offenses and not anything about

phone calls or emails. (RR2: 143). The prosecutor stated that he had just learned

about the other phone calls and email evidence that morning before the trial

started. (RR2: 144).       The prosecutor also stated that there was no physical

evidence, such as the emails themselves, but merely the testimony from Sheppard

about the emails. (RR2: 144-46). The prosecutor stated the Sheppard deleted the

email messages “out of fear because they were threats” and she hung up the phone

out of fear because she felt threatened. (RR2: 146).

      Defense counsel stated that if she had known there was going to be evidence

under Tex. R. Evid. 404(b), she would have asked for a continuance so her

investigator could look into it. (RR2: 147-48). Defense counsel stated that she did

not file a discovery motion or ask the court to rule on it because the prosecutor told

her to fill out a discovery request form. (RR2: 148-49). When the court asked

defense counsel what would be the remedy that would assist the defense, counsel

asked for a mistrial “so that we could go see” and go through call logs. (RR2:

149). Counsel had also previously discussed asking her investigator to look for the

emails. (RR2: 146). The court denied the request for a mistrial. (RR2: 149).

      When court resumed the next morning, the court noted that defense counsel

had given the court notice of its intent to ask for a continuance “to investigate these

                                          40
e-mails and personal visits that the State brought up.” (RR3: 7). The court in

summarizing the evidence referred to personal visits (RR3: 6-7) made by Appellant

to Sheppard. Defense counsel also stated that Sheppard had testified about visits.

(RR3: 10,14). Appellant’s brief also references these personal visits. (Appellant’s

brief at 60). During the testimony about which Appellant complains, however,

there was no evidence that Appellant made any personal visits to Sheppard.

Sheppard only testified about Appellant contacting her through emails and phone

calls. (RR2: 129-32). Sheppard made one reference to Appellant contacting her

through an inmate, but it was only a partial sentence and did not specify how the

inmate contacted her. (RR2: 132). There was no testimony about Appellant or

anyone of his behalf making personal visits to Sheppard. (RR2: 129-32).

      The prosecutor announced that the State would “abandon any possible

evidence that we introduce[d] that may be 404(b) related.” (RR3: 8). Defense

counsel stated that abandoning the use of 404(b) evidence at that point “would not

cure any wrongdoing” because some evidence had already come in before the jury.

(RR3: 8). And defense counsel stated that if the defense cross-examined Sheppard

on the issue, the defense would reopen the door to the evidence. (RR3: 8).

      Defense counsel and the prosecutor noted that “the emails that led up to the

protective order” had been provided to the defense that morning. (RR3: 8-9,13).

[These emails were not the ones that Sheppard had testified about that occurred

                                        41
after the protective order was obtained because the post-protective order emails

were deleted after she received them. (RR2: 144-46).] The defense investigator

outlined some authentication issues he had with the pre-protective order emails.

(RR3: 10-12).

      The prosecutor suggested that the correct remedy would be for the court to

instruct the jury to disregard the evidence. (RR3: 13). Defense counsel noted that

several of her objections were overruled regarding the phone calls and emails.

(RR3: 14). Defense counsel asked for a limiting instruction in the jury charge and

a verbal instruction to the jury to disregard the evidence. (RR3: 15). The court

denied the defense’s request for a continuance. (RR3: 14). The court denied the

request to give an instruction to disregard to the jury when the jury returned to the

courtroom. (RR3: 15). The court granted the request for a limiting instruction in

the jury charge. (RR3: 15). The jury charge did, in fact, contain a limiting

instruction, which stated the following:

             You are instructed that if there is any testimony before you in
      this case regarding the Defendant’s having committed offenses other
      than the offense alleged against him in the Information in this case,
      you cannot consider said testimony for any purpose unless you find
      and believe beyond a reasonable doubt that the Defendant committed
      such other offenses, in any were committed, and even then you may
      only consider the same in determining the intent of the Defendant, if
      any, in connection with the offense, if any, alleged against him in the
      Information in this case, and for no other purpose.

(CR1: 26).

                                           42
      When trial resumed, the prosecutor questioned Sheppard about how she felt

when she received the phone call from Appellant. (RR3: 18). Sheppard then

testified about talking to the VA police about the phone call. (RR3: 19). The

prosecutor never again asked about any emails or other threatening phone calls she

may have received from Appellant. (RR3: 18-23,32-34).

             Appellant’s motion for mistrial was properly denied.

      A mistrial is an extreme remedy for prejudicial events during the trial

process. Edwards v. State, 106 S.W.3d 833, 836 (Tex. App. – Dallas 2003, pet.

ref’d). The asking of an improper question will seldom call for a mistrial because,

in most cases, any harm can be cured by an instruction to disregard. Ladd v. State,

3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A mistrial should be used to halt trial

proceedings only when error is so prejudicial that expenditure of further time

would be wasteful and futile. Id. Thus, mistrials should be granted only when an

objectionable event is so emotionally inflammatory that curative instructions are

not likely to prevent the jury from being unfairly prejudiced against the defendant.

Edwards, 106 S.W.3d at 836. The jury is presumed to follow the trial court’s

instruction to disregard improperly admitted evidence in the absence of evidence

indicating the members of the jury failed to do so. State v. Boyd, 202 S.W.3d 393,

402 (Tex. App. – Dallas 2006, pet. ref’d). A trial court’s denial of a mistrial is




                                        43
reviewed under an abuse of discretion standard. Hawkins v. State, 135 S.W.3d 72,

76 (Tex. Crim. App. 2004); Ladd, 3 S.W.3d at 567.

      To determine whether a given error necessitates a mistrial, the reviewing

court must examine the particular facts of the case. Ladd, 3 S.W.3d at 567. A

mistrial is required only when the impropriety is clearly calculated to inflame the

minds of the jury and is of such a character as to suggest the impossibility of

withdrawing the impression produced on the minds of the jury. Hinojosa v. State,

4 S.W.3d 240, 253 (Tex. Crim. App. 1999). In Hawkins, the Court of Criminal

Appeals stated the following:

      . . . the question of whether a mistrial should have been granted
      involves most, if not all, of the same considerations that attend a harm
      analysis. A mistrial is the trial court’s remedy for improper conduct
      that is “so prejudicial that expenditure of further time and expense
      would be wasteful and futile.” [citation omitted]. In effect, the trial
      court conducts an appellate function: determining whether improper
      conduct is so harmful that the case must be redone. Of course, the
      harm analysis is conducted in light of the trial court’s curative
      instruction. Only in extreme circumstances, where the prejudice is
      incurable, will a mistrial be required.

Hawkins, 135 S.W.3d at 77.

      In the instant case, Appellant asked for a mistrial “so that we could go see”

because defense counsel wanted her investigator to go through call logs and see if

he could find the emails in question. (RR2: 146,149).         As discussed above,

however, the purpose of a mistrial is to remedy extreme circumstances involving



                                        44
incurable prejudice, not to allow one party to go look for evidence. Therefore, the

mistrial was properly denied.

       Moreover, the evidence that was admitted over Appellant’s objections

consisted only of testimony that Appellant called Sheppard “crazy,” begged her to

call him, and contacted her through an inmate. (RR2: 130-32). Appellant did not

object to evidence that he contacted Sheppard after the protective order was issued,

that she did not want to communicate with him, and that he made threats and

harassed Sheppard. (RR2: 129-32). The evidence to which Appellant objected

was not extremely prejudicial in light of the evidence to which he did not object.

Therefore, the court did not abuse its discretion in denying Appellant’s request for

a mistrial.

              Request for instruction to disregard was properly denied.

       Appellant argues that without a curative instruction, the jury was likely to

consider the uncharged extraneous offense evidence for character conformity in

violation of 404(b). (Appellant’s brief at 66). Even if the jury did consider the

uncharged evidence of Appellant contacting Sheppard by phone and email,

however, most of the responsibility for that consideration lies with Appellant. As

discussed in the State’s Response to Point 4 and incorporated herein, Appellant did

not object at all to a majority of Sheppard’s testimony regarding the emails and

other phone calls. Thus, any error was waived regarding the testimony to which he

                                         45
did not object.    Therefore, the court should not have given any instruction

regarding that testimony other than the limiting instruction that was contained in

the jury charge.

      Appellant did not timely object on 404(b) grounds to anything other than

Sheppard’s reference to an inmate contacting her and whether Appellant had

communicated with her several times before. (RR2: 129-33). Sheppard testified

over an objection that was not ruled upon to the fact that Appellant had contacted

her in addition to the emails and the phone call that was the subject of the charged

offense. (RR2: 131-32). Appellant’s objection was overruled as to how Sheppard

knew that it was Appellant emailing her, which Sheppard answered by saying no

one else talked that way to her. (RR3: 131).

      To this testimony, and only this testimony, the court could have given an

instruction to disregard. The efficacy of an instruction to disregard, however, is

based mainly upon the fact that it is given immediately after improper testimony.

See Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003); Ovalle v.

State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (holding that “a prompt

instruction to disregard with cure error associated with an improper question and

answer.”). In the instant case, Appellant did not even request the instruction to

disregard until the next morning after Sheppard had testified. The record shows

the court recessed at 3:34 p.m. on July 8, 2014, after Sheppard testified about the

                                        46
events in question. (RR2: 1,129-32,150). Court resumed at 10:04 a.m. on July 9,

2014 and Appellant first requested an instruction to disregard that morning. (RR3:

1,6,15). Thus, the jury first heard the testimony in question more than 18 hours

before Appellant requested an instruction to disregard.

      Tex. R. App. P. 33.1(a) provides that, in order to present a complaint for

appellate review, the record must show that “the complaint was made to the trial

court by a timely request, objection or motion” that “stated the grounds for the

ruling that the complaining party sought from the trial court with sufficient

specificity to make the trial court aware of the complaint,” and that the court ruled

on the request, objection, or motion. This rule ensures that trial courts are provided

an opportunity to correct their own mistakes at the most convenient and

appropriate time, which is when the mistakes are alleged to have been made. Hull

v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002).

      By waiting until the morning after Sheppard’s testimony to request an

instruction to disregard, Appellant did not allow the trial court an appropriate time

to correct any mistake in the admission of the testimony.           The court could

reasonably have determined that no instruction to disregard would remove the

evidence from the jury’s mind. Moreover, mentioning the specific evidence in

question more than 18 hours after the jury first heard it would only have




                                         47
emphasized it. Therefore, the trial court properly denied Appellant’s request.

Point 6 is without merit and should be overruled.



                                     PRAYER

       The State prays that this Honorable Court will affirm the judgment of the

trial court.

                                                    Respectfully submitted,



                                                    _________________________
SUSAN HAWK                                          KAREN R. WISE
Criminal District Attorney                          Assistant District Attorney
Dallas County, Texas                                State Bar No. 21810200
                                                    Frank Crowley Courts Building
                                                    133 N. Riverfront Blvd., LB-19
                                                    Dallas, Texas 75207-4399
                                                    (214) 653-3637
                                                    (214) 653-3643 fax

    CERTIFICATE OF SERVICE AND WORD-COUNT COMPLIANCE

      I hereby certify that a true copy of the foregoing brief was served on Jeff P.
Buchwald, attorney for Appellant, by sending an electronic communication to
Buchwald7@msn.com, on October 30, 2015. I further certify that this document
contains 12,491 words, inclusive of all contents.



                                                    _________________________
                                                    KAREN R. WISE




                                        48
