Affirmed and Memorandum Opinion filed June 26, 2018.




                                         In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00381-CR

                 HORACIO ESPARZA MORALES, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee

          On Appeal from the County Criminal Court at Law No. 13
                           Harris County, Texas
                       Trial Court Cause No. 2088108

                  MEMORANDUM OPINION

      A jury convicted appellant Horacio Esparza Morales of assault of a family
member, and the trial court sentenced him to 180 days’ confinement in Harris
County Jail. On appeal, appellant challenges his conviction on the ground that the
trial court reversibly erred by admitting evidence of a prior assault against the same
family member. Because we conclude that the trial court did not abuse its discretion
in admitting this evidence, we affirm.
                                       Background

      Appellant and his common law wife, Margo,1 argued on April 20, 2016, at
their home in Pasadena, Texas. Unclothed, Margo ran into the yard calling for help.
A passing wrecker driver stopped and confronted appellant as appellant tried to drag
Margo back inside the house. Both the driver’s wife and one of appellant’s
neighbors spoke with 911 operators. Appellant left the scene, and Pasadena Police
Department (“PPD”) Officer David Badgett arrived shortly thereafter.

      Badgett spoke with Margo, who told him that appellant hit her several times
in the face and head. According to Badgett, Margo appeared to be in pain, and her
lip was bleeding. Badgett took several pictures of Margo, which were admitted
during appellant’s trial. Margo told Badgett that she and appellant fought in the
shower and that appellant punched her several times and pulled her outside the
house. Margo described to Badgett how the assault occurred, showing him where it
started in the bathroom and continued through the house to the yard. Badgett saw
and documented with photographs a trail of blood from the master bathroom inside
the house, through the house, along the side of the house, and to an exterior walkway;
these photographs were admitted into evidence during appellant’s trial. Margo told
Badgett appellant had assaulted her three or four times previously, but she never
pressed charges because appellant provided the only income for the family. Margo
told Badgett she did not want to press charges against appellant for this offense,
either. Badgett testified at appellant’s trial regarding these facts.

      PPD Officer Christopher Sweet, who also responded to the 911 call, testified
at trial. Sweet spoke with appellant’s neighbors, a husband and wife. The husband
and wife told Sweet that they heard loud noises, looked outside their bedroom


      1
          We identify the complainant by a pseudonym, “Margo.”

                                              2
window, and saw Margo naked, running outside the house next door and into the
yard, screaming for help. The neighbors both described appellant as chasing Margo
into the yard, and both told Sweet that they saw appellant hitting Margo.

       A paramedic treated Margo at the scene and saw injuries consistent with an
assault. Margo refused transport to the hospital for further evaluation. Margo also
reported to the paramedic that appellant assaulted her. The paramedic testified
regarding these facts at appellant’s trial.

       A few days after April 20, a detective from the PPD family violence unit,
Sylvia Trevino, contacted Margo. During their conversation, Margo provided a
different version of the facts. Margo told Trevino that she had been drinking that
night, and that she and appellant argued. Margo chased appellant after the argument.
Angry, appellant pushed Margo, causing her to fall and hit her face on a bathroom
counter. Trevino also interviewed appellant as part of her investigation. After
completing her investigation, Trevino presented her findings to the Harris County
District Attorney’s Office, which then filed the instant assault charges against
appellant. Trevino testified to these facts at appellant’s trial.

       Margo testified as well, describing the April 20, 2016 incident as follows. She
and appellant drank beer all day. Margo claimed to have consumed more than fifteen
beers throughout the evening.2 She and appellant decided to take a shower together
around 11:00 p.m. During the shower, the two began to argue. Margo called
appellant a “coward,” and appellant angrily told Margo he would leave her. As
appellant exited the bathroom, Margo grabbed appellant but appellant pushed her
hand away. Margo slipped on the wet bathroom floor and her face struck a counter.

       2
         Badgett, who had experience investigating driving while intoxicated offenses, testified
that he smelled no odor of alcohol on Margo and that she did not appear to be intoxicated when he
spoke with her on April 20, 2016. Margo denied drinking when Badgett asked her on April 20,
but she told Badgett that appellant was intoxicated.

                                               3
Appellant entered the couple’s bedroom and began packing a bag. He then went
outside.      Margo, still undressed, chased him into the yard.                    Unpersuaded by
appellant’s attempt to convince her to go back inside, Margo sat down in the yard
and yelled for the police. Acknowledging her trial testimony varied from the facts
she told the officers, Margo said she lied to the officers because she was angry that
appellant was trying to leave her. At the time of trial, Margo and appellant still lived
together with their children.

          Appellant’s neighbors, a married couple who saw at least part of the incident
on April 20, also testified. They both testified that, contrary to statements made to
police the night of the incident, they had not seen appellant striking Margo.3 And
neither could recall talking with the police the evening of the incident.

          The passing driver who stopped to help Margo on April 20 testified at
appellant’s trial. He explained that he saw Margo running out of her home naked,
with appellant hanging onto her neck. The driver testified that he jumped out of his
truck and went to help, while his wife, who remained in the truck, spoke to a 911
operator. He told appellant “to stop because he was trying to drag the heavier-set
woman [Margo] inside.” He saw appellant grabbing Margo by her hair and arm,
trying to force her back into the house. He described Margo as having a “fat lip,”
bleeding from the mouth, and looking “like she had been in a fight.” This witness
saw no injuries on appellant. He also stated that appellant told him that “it was her
fault.”

          After hearing the evidence and argument of counsel, the jury convicted
appellant of Class A misdemeanor assault of a family member. The trial court


          3
           The 911 call made by one of the neighbors was admitted into evidence. During the 911
call, this witness stated that his “neighbor [appellant] is beating up his wife in the street pretty bad.
She’s naked and she’s asking for help.”

                                                   4
sentenced appellant to 180 days’ confinement in Harris County Jail. This appeal
timely followed.

                                      Analysis

      In a single issue, appellant asserts that the trial court reversibly erred by
admitting evidence of an extraneous offense over his Rule 403 and Rule 404(b)
objections.

A.    Standard of Review and Governing Law

      Evidence of a person’s crime, wrong, or other act is not admissible to prove
that person’s character in order to show that the person acted in conformity with that
character when allegedly committing the charged offense. See Tex. R. Evid.
404(b)(1); see also Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001);
Montgomery v. State, 810 S.W.2d 372, 386-88 (Tex. Crim. App. 1990) (op. on
reh’g). Evidence of other offenses, however, may be admissible when the evidence
is relevant to a fact of consequence in the case. See Tex. R. Evid. 404(b)(2);
Montgomery, 810 S.W.2d at 387-88. For instance, evidence of other crimes or
wrongs may be admissible if it tends to establish some elemental fact, such as
identity, intent, or knowledge; tends to establish some evidentiary fact, such as
motive, opportunity, plan, or preparation, leading inferentially to an elemental fact;
or rebuts a defensive theory by showing, e.g., absence of mistake or lack of accident.
Montgomery, 810 S.W.2d at 387-88; see also Tex. R. Evid. 404(b)(2). If the trial
court determines the offered evidence has independent relevance apart from or
beyond character conformity, the trial court may admit the evidence and instruct the
jury the evidence is limited to the specific purpose the proponent advocated. See
Prince v. State, 192 S.W.3d 49, 54 (Tex. App.—Houston [14th Dist.] 2006, pet.
ref’d) (citing Montgomery, 810 S.W.2d at 387-88).           However, even relevant


                                          5
evidence may be excluded under Rule 403 when its probative value is substantially
outweighed by the danger of unfair prejudice. Tex. R. Evid. 403.

       Because trial courts are best suited to decide these substantive admissibility
questions, an appellate court reviews admissibility rulings under an abuse of
discretion standard. Powell, 63 S.W.3d at 438. This standard requires that we affirm
admissibility rulings when they are within the zone of reasonable disagreement. Id.

B.     Admission of the Extraneous Offense Evidence

       During Margo’s testimony, the State asked Margo if arguments happened
between her and appellant frequently, and Margo replied, “No.” When asked if such
an incident had occurred before, she responded, “No.” Shortly after this exchange,
the State sought a hearing outside the jury’s presence.4 The State informed the trial
court that, in response to Margo’s testimony that nothing like this had happened
before, the State wanted to question Margo about a July 24, 2015 incident during
which a PPD officer responded to Margo’s and appellant’s home address following
a 911 call regarding an assault. The State notified the court that it intended to call
the officer who had responded to the July 2015 incident to the stand. Appellant
objected to the evidence as not relevant under Rule 401, more prejudicial than
probative under Rule 403, and inadmissible character evidence under Rule 404. The
State responded that the evidence was admissible under Code of Criminal Procedure
article 38.371, which allows, among other things, testimony or evidence concerning
the nature of the relationship between the actor and the alleged victim in certain
offenses involving family or dating violence. See Tex. Code Crim. Proc. art.
38.371(b).


       4
        The trial court previously held a hearing concerning Code of Criminal Procedure article
38.371 outside the jury’s presence, but did not rule on the admissibility of any evidence at that
time.

                                               6
      At the close of the hearing, the trial court ruled that the State could “develop
anything that you have regarding the prior relationship between the parties.” Margo
continued testifying before the jury. The State asked her if she had ever called 911
on appellant before, and Margo responded, “No, not that I remember.” Margo also
testified that the police had never come to her home before April 20, 2016.

      The State then called PPD Officer John Smith to testify concerning his
response to a 911 call on July 24, 2015, reportedly by Margo. When Smith arrived
at appellant’s and Margo’s home, Margo told Smith that she and appellant had an
argument and appellant refused to leave. When she threatened to call 911, appellant
tried to choke her, but released her after she bit him. Margo then called 911.
Appellant was not present when Smith arrived in response to Margo’s 911 call.
Smith testified that Margo did not want to press charges. On cross-examination,
Smith acknowledged that he did not see any marks, scratches, bruising, or swelling
on Margo when he responded to the 911 call.

C.    Application

      Appellant first complains that the trial court erred in admitting this evidence
over his Rule 404 objection. He asserts that this extraneous offense evidence is not
relevant to any fact of consequence outside of conformity.

      Article 38.371 permits evidence of “all relevant facts and circumstances that
would assist the trier of fact in determining whether the actor committed the
offense. . ., including testimony or evidence regarding the nature of the relationship
between the actor and the alleged victim.” Tex. Code Crim. Proc. art. 38.371(b).
However, article 38.371 does not permit the presentation of character evidence that
otherwise would be inadmissible under the Texas Rules of Evidence. Id. art.
38.371(c).


                                          7
      Appellant presented a defensive theory that the assault never happened.
During opening statements, appellant’s counsel told the jury that Margo would
testify that she falsely accused appellant of assault because she was intoxicated,
insecure, and jealous. When, as here, the defendant presents a defensive theory that
the alleged assault never happened, evidence of the relationship between the accused
and the alleged victim might include facts demonstrating that the alleged victim
recanted prior statements of events or explaining the alleged victim’s unwillingness
to cooperate with law enforcement or prosecution. See Gonzalez v. State, 541
S.W.3d 306, 312 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Appellant’s
defensive theory, first raised before the jury heard any evidence, opened the door for
the State to prove that the assault happened as Margo initially alleged, but that Margo
recanted her allegations. See id. (citing Bass v. State, 270 S.W.3d 557, 563 (Tex.
Crim. App. 2008) (holding extraneous offense was admissible to rebut defense claim
of fabrication made during opening statement)).

      Contrary to appellant’s argument, the evidence in question did not relate
solely to conformity. The trial court could have concluded that evidence of Margo’s
previous 911 call reporting that appellant had assaulted her was relevant and within
the scope of evidence permitted by article 38.371 because it rebuts appellant’s
defensive theory that the offense never occurred. See id. (citing McDuff v. State,
939 S.W.2d 607, 619 (Tex. Crim. App. 1997 (reviewing court will sustain trial
court’s admissibility ruling if correct on any theory of law applicable to the case);
Banks v. State, 494 S.W.3d 883, 892-93 (Tex. App.—Houston [14th Dist.] 2016,
pet. ref’d)). “The nature of the relationship between the actor and alleged victim
may be relevant to, among other things, confirm the alleged victim’s initial—and
later recanted—statements to police, or to explain the alleged victim’s unwillingness
to cooperate with law enforcement or prosecution.” Id. These uses of such evidence


                                          8
do not contravene Rule 404(b)’s prohibition against use of character-conformity or
propensity evidence because the State is not relying on the evidence to convince the
jury of appellant’s guilt. Id. (citing Tex. R. Evid. 404(b)(1)). In sum, we cannot say
that the trial court abused its discretion in admitting this evidence to rebut appellant’s
defensive theory that the assault never occurred and to explain Margo’s recantation
of her previous statements to police. See id.

        Appellant argues alternatively that the probative value of the evidence at issue
is substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403.
Rule 403 “favors the admission of relevant evidence and carries a presumption that
relevant evidence will be more probative than prejudicial.” Shuffield v. State, 189
S.W.3d 782, 787 (Tex. Crim. App. 2006). In undertaking a Rule 403 analysis, a
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.
Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).

        Considering these factors, the July 2015 assault and the current assault were
close in time, and the offenses, both of which involved appellant grabbing Margo by
the neck, were similar. Additionally, proof that appellant previously physically
abused Margo rebutted her trial testimony that appellant did not assault her on April
20, 2016.5 Thus, the probative value of the evidence was high and strengthened the

        5
         This proof included testimony from Officer Smith concerning the July 2015 choking
incident (about which appellant complains on appeal), as well as testimony from Officer Badgett
                                              9
State’s theory that Margo had recanted her allegations of assault. Additionally, the
evidence was unlikely to confuse or distract the jury, nor did its presentation
consume an inordinate amount of time or repeat evidence already admitted. See id.
at 642. And, appellant has not shown that the jury was likely to give the evidence
undue weight.6 See id. Thus, we conclude the probative value of the evidence was
not substantially outweighed by the danger of unfair prejudice. Cf. Foster v. State,
No. 01-17-00537-CR, 2018 WL 1914871, at *4-5 (Tex. App.—Houston [1st Dist.]
Apr. 24, 2018, no pet.) (mem. op., not designated for publication) (no violation of
Rule 403 in admitting evidence of previous assaults of victim in prosecution for
family violence assault); McCleery v. State, No. 03-17-00154-CR, 2017 WL
4766722, at *6-7 (Tex. App.—Austin Oct. 20, 2017, no pet.) (mem. op., not
designated for publication) (same).

         For the foregoing reasons, we hold that the trial court acted within its
discretion in admitting testimony concerning other instances of physical abuse by
appellant during his relationship with Margo. We overrule appellant’s sole appellate
issue.




that Margo had told him appellant had assaulted her several times in the past (about which
appellant does not complain on appeal).
         6
             The trial court’s charge contained a limiting instruction on extraneous-offense evidence:
         The defendant is on trial solely on the charge contained in the information. In
         reference to evidence, if any, that the defendant has previously participated in
         recent transactions or acts, other than that which is charged in the information in
         this case, you are instructed that you cannot consider such other transactions or acts,
         if any, for any purpose unless you find and believe beyond a reasonable doubt that
         the defendant participated in such transactions or committed such acts, if any; and
         even then you may only consider the same for the purpose of determining the nature
         of the relationship between the defendant and the alleged victim, if it does, and for
         no other purpose.

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                                   Conclusion

      Having overruled appellant’s issue, we affirm the trial court’s judgment.




                                      /s/    Kevin Jewell
                                             Justice



Panel consists of Justices Busby, Brown, and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).




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