                                                                           ACCEPTED
                                                                      03-14-00700-CR
                                                                             3833789
                                                            THIRD COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                                                                 1/20/2015 4:29:14 PM
                                                                    JEFFREY D. KYLE
                                                                               CLERK
                    No. 03-14-000700-CR

                 IN THE COURT OF APPEALS             FILED IN
                                              3rd COURT OF APPEALS
            FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS
                  TEXAS AT AUSTIN, TEXAS      1/20/2015 4:29:14 PM
                                                 JEFFREY D. KYLE
                                                      Clerk
                          ********

 ALEXANDRIA TAMMY HAMILTON
                           VS.

          THE STATE OF TEXAS
                          ********

         ON APPEAL FROM THE 426th DISTRICT COURT
                 OF BELL COUNTY, TEXAS
                     Cause No. 72513

                          ******

            STATE’S BRIEF
                           ******

                         HENRY GARZA
                         DISTRICT ATTORNEY

                         BOB D. ODOM
                         ASSISTANT DISTRICT ATTORNEY
                         P.O. Box 540
                         Belton, Tx 76513
                         (254) 933-5215
                         FAX (254) 933-5704
                         DistrictAttorney@co.bell.tx.us
                         SBA No. 15200000


Oral Argument Not Requested

                             1
                  TABLE OF CONTENTS

ITEM                                                    PAGE

Index of Authorities ……………………………………………………………………           4

Statement Regarding Oral Argument …………………………………………..      6

Statement of the Case …………………………………………………………………           6

Statement of Facts ……………………………………………………………………...          7

Summary of State’s Argument …………………………………………………….        11

Argument and Authorities ………………………………………………………….         11

 First Issue on Appeal ………………………………………………………………          11
 (Appellant’s Points 1-8)
            TRIAL COURT ABUSE DISCRETION IN ADMITTING
            EXTRANEOUS OFFENSE UNDER RULE 404(b)

       Standard of Review …………………………………………………………..       12

       Application and Analysis …………………………………………………..    12

  Second Issue on Appeal …………………………………………………………          23
  (Appellant’s Points 9-15)
           TRIAL COURT ABUSE DISCRETION IN FINDING
           PROBATIVE VALUE OF NOT OUTWEIGHED BY
           PREJUDICIAL AFFECT UNDER RULE 403.

       Standard of Review …………………………………………………………         23

       Application and Analysis …………………………………………………      24




                             2
Prayer ………………………………………………………………………………….......                28

Certificate of Compliance with Rule 9 ……………………………………......   29

Certificate of Service ………………………………………………………………….            29




                               3
                    INDEX OF AUTHORITIES

CASES                                                            PAGE

Bisby v. State, 907 S.W.2d 949 (Tx. App. Ft. Worth ……………………….     16
      2nd Dist. 1995 rev. ref.), Cert den. 528 U.S. 849 (1999)

Boswell v. State, No. 03-11-00117-CR, 2012 Tex. App. …………………      14
     LEXIS 7177 (Tx. App. Austin 3rd Dist. 2012 no pet.),
     not designated for publication.

Bush v. State, 628 S.W.2d 441 (Tx. Cr. App. 1982) ……………………….      16

Gamez v. State, 737 S.W.2d 315 (Tx. Cr. App. 1987) …………………….      26

Hegar v. State, 11 S.W.3d 290 …………………………………………………….               14
     (Tx. App. Houston 1st Dist. 1999 no pet.)

Lomaugh v. State, 514 S.W.2d 758 (Tx. Cr. App. 1974) ………………..     16

Montgomery v. State, 810 S.W.2d 372 (Tx. Cr. App. 1990) …………..12, 17

Mozon v. State, 991 S.W.2d 841 (Tx. Cr. App. 1999) ……………………       24

Wheeler v. State, 67 S.W.3d 879 (Tx. Cr. App. 2002) ……………………      24

Williams v. State, 301 S.W.3d 675 (Tx. Cr. App. 2009) …………………12, 13

OTHER

Texas Penal Code

     Section 22.02(b)(1) …………………………………………………………                   20

Texas Family Code

     Section 71.0021(b) …………………………………………………………… 20



                                  4
Texas Rules of Evidence

      Rule 403 …………………………………………………………… 11, 23-24 & 28

      Rule 404(b) ………………………………………………11-14, 16-17 & 22, 23




                            5
STATEMENT REGARDING ORAL ARGUMENT
      The State does not request oral argument.

STATEMENT OF THE CASE

      The Appellant, Alexandria Tammy Hamilton, was indicted for the

offense of Aggravated Assault. The indictment charged that she “…did

then and there intentionally, knowingly, and recklessly cause serious

bodily injury to Antonio Jennings by stabbing the said Antonio Jennings

with a knife, and...did then and there use a deadly weapon, to-wit: a

knife, during the commission of said assault, and the said Antonio

Jennings was a person with whom the defendant has or had a dating

relationship, as described by Section 71.002(b) of the Texas Family

Code.” (CR-5).

      She was tried before a jury in the 426th District Court of Bell

County, Texas, Judge Fancy Jezek presiding, and found guilty by the jury.

(CR-62; RR12-62). Upon her election (CR-17), the same jury assessed

punishment at 60 years in the Texas Department of Criminal Justice.

(CR-63; RR15-39).

      The Appellant gave timely notice of appeal (CR-81) and the trial

court certified her right to do so. (CR-77).



                                     6
STATEMENT OF FACTS

       The Appellant and Antonio Jennings had been dating for some

time and lived together off and on. (RR8-61, 63, 64). Their relationship

became stormy, however, because of her jealousy, principally over his

continued contact with Crystal Whiteside, the mother of his children.

(RR8-70, 71, 75, 79, 81, 83, 84, 93, 94). He and Ms. Whiteside were in

the process of trying to reconcile their differences so that they could act

as co-parents to their children. (RR8-65, 67; RR9-109).

       The Appellant began confronting Jennings about the relationship,

provoking a number of arguments that became intense. (RR8-92, 93,

94).

       On the day of the stabbing, Jennings had gone with Crystal

Whiteside to “Chuck E. Cheese” for their daughter’s birthday. Jennings

planned to attend her birthday party the following evening. (RR8-93,

94; RR9-107, 108).

       That night the Appellant and Jennings were drinking and playing

cards with friends when she became angry about his time with his “baby

momma” and started demanding to know why he was going to his

daughter’s birthday. (RR8-94).



                                     7
      She went into the bedroom where he joined her to attempt to

diffuse the situation.   They sat on the bed and gradually began to

become intimate. (RR8-93, 94, 95).        When he attempted to have

intercourse, however, she again became angry and aggressive and again

complained of Crystal Whiteside. (RR8-95, 96, 97). As he was getting up

from the bed she grabbed a knife and stabbed him a number of times.

She then just walked out of the room without saying a word. (RR8-99).

      He was bleeding profusely and managed to leave the duplex

apartment and to go to his sister, Cheleste Jennings, who lived in

another of the duplex units. (RR8-100, 101, 102). They called 911 and

Cheleste and her boyfriend, Dantral Felton, ministered to him until the

police and paramedics arrived. (RR9-58, 59, 93, 94, 95).

      Jennings was taken to Darnall Army Hospital in Killeen and then

to Baylor Scott and White in Temple. He was stabbed three times in the

torso and also suffered a cut on his arm and lacerations of his finger.

(RR8-101; RR9-79). About 40% of his blood had to be replaced. His

kidney was lacerated and he had a collapsed lung. Surgery was required

to remove clotted blood so that the lung could expand. (RR9-81, 81).

His injuries were life threatening. (RR9-83).




                                    8
      When the police arrived at the scene of the stabbing, the Appellant

claimed that she had stabbed Jennings in self-defense because he was

sexually assaulting her. (RR8-40, 42, 54). She pointed to a number of

items in the apartment that had been overturned. (RR8-22, 54, 55). By

examining the blood splatters and other physical evidence, however, the

investigating officers became suspicious that the scene had been staged.

All of the furniture in disarray had been turned over after the blood had

been deposited. (RR9-153).

      Immediately after the stabbing and prior to the arrival of the

ambulance, the Appellant told Jennings’ sister, Cheleste Jennings, that

she was “done with him” and tired of him breaking her stuff. She did not

mention any sexual assault. (RR9-57, 58, 61, 62).

      The Appellant was taken to the hospital where a sexual assault

examination was performed by a SANE nurse. (RR10-73). She told the

nurse that Jennings had sexually assaulted her and that she grabbed the

knife and stabbed him only after he hit her in the course of the assault.

(RR10-80, 81, 82, 85).

      Later that day, the Appellant went to the Killeen Police

Department of her own accord. She told the officer that she was being

followed by associates of Jennings; however, the police were unable to


                                    9
locate the vehicle she described. (RR10-41, 42). She also claimed that

she had been sexually assaulted by Antonio Jennings; however, she

refused to give a statement concerning that alleged offense and quickly

left the police station. (RR10-43, 44, 46, 47, 48). Later, she agreed on

three occasions to speak with Detective Brank about her sexual assault

allegations, but failed to keep any of the appointments. (RR10-20, 21).

      At trial the Appellant consistently maintained that she had

stabbed Mr. Jennings in self-defense.         Her counsel extensively

questioned the perspective jurors on the issue (RR4-99-104) and cross

examined the responding police officers about her claim that she had

been defending herself from sexual assault. (RR8-40, 42, 57; RR10-26).

She also offered testimony from the SANE nurse who examined her

containing her account of the events and allegations of sexual assault by

Jennings. (RR10-70-100).

      Her actions after the offense, however, rebutted her claims and

indicated her continued jealousy and animosity directed against Crystal

Whiteside and her relationship with Jennings. (RR9-10-13, 63-67, 110-

115, 137-139).     There was also evidence that, in explaining her

subsequent actions, she admitted to Antonio Jennings’ brother, Jerry

Jennings, that she had stabbed Antonio and that she did it because she


                                   10
felt betrayed by his being around the mother of his baby, Crystal

Whitesides. (RR9-137).

SUMMARY OF STATE’S ARGUMENT

      The trial court did not abuse its discretion in admitting the

extraneous offense complained of because it was relevant under Rule

404(b) both to prove motive and to rebut the Appellant’s defensive

theory of self-defense.

      The trial court did not abuse its discretion in holding that the

danger of unfair prejudice did not outweigh the probative value of the

evidence under Rule 403 because the issue of self-defense and motive

was the only contested issue in the trial and the evidence was

compelling and vitally needed in order to resolve those issues. Given

the primacy of the issue the State did not expend excessive time in the

presentation of that evidence nor can it be said that there was a danger

of an irrational and indelible effect upon the jury as the issue was relied

upon exclusively by Appellant.

ARGUMENT AND AUTHORITIES

First Issue on Appeal (Appellant’s Points of Error One

through Eight)


                                    11
      Did the trial court abuse its discretion in the admission of

extraneous offenses and misconduct under Rule 404(b) of the Texas

Rules of Evidence?

Standard of Review

      A trial court’s ruling on the admissibility of extraneous offenses is

reviewed under an abuse of discretion standard. Williams v. State, 301

S.W.3d 675, 687 (Tx. Cr. App. 2009). Thus, the trial court’s decision will

not be disturbed on appeal as long it was within the zone of reasonable

disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tx.Cr.App.

1990).

Application and Analysis

Appellant’s Brief

      The Appellant includes eight points of alleged error in a single

issue presented to the court, arguing them all together. Therefore, it is

necessary for the State to respond in kind.

      She includes the following in those points:

Point One: Mention of her prior conviction in Virginia.

Point Two: Her subsequent burglary of the apartment of the victim’s

sister.




                                    12
Point Three: Her subsequent vandalization of the car belonging to

Crystal Whiteside.

Point Four: Her subsequent vandalization of the car belonging to the

victim’s brother, Jerry Jennings.

Point Five: Her subsequent attempted burglary of Crystal Whiteside’s

car.

Point Six: Her threat to hire someone to get Crystal Whiteside before

the commission of the offense.

Point Seven: Her threat to beat Crystal Whiteside before the stabbing.

Point Eight: Her stalking of Crystal Whiteside.

Rule 404(b)

       Evidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show conformity therewith.

Such evidence, however, may be admissible for other purposes such as

proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, the absence of mistake or accident.

       The rebuttal of a defensive theory is one of the purposes for which

evidence of extraneous offenses may be admitted under Rule 404(b).

Williams at 687.




                                    13
      Admissibility of extraneous offenses under Rule 404(b) is not

confined merely to those occurring prior to the offense charged. Hegar

v. State, 11 S.W.3d 290, 297 (Tx. App. Houston 1st Dist. 1999 no pet.); see

also Boswell v. State, No. 03-11-00117, 2012 Tex. App. LEXIS 7177 (Tx.

App. Austin 3rd Dist. 2012, no pet.), not designated for publication,

following Hegar.

This Case

      In this case the Appellant filed her Request for Notice of Intent to

Offer Evidence of Extraneous Conduct (CR-20) as well as a Motion in

Limine Regarding Extraneous Offenses (CR-18). The State responded by

filing its notices of such extraneous acts (CR-43, 47). See Rule 404(b).

      Prior to the presentation of evidence to the jury the trial court

took up the Appellant’s motion in limine. At the conclusion of the

hearing the trial court held that prior assaultive behavior by the

Appellant against the victim, Antonio Jennings would be admitted. The

Appellant does not contest that ruling on appeal as none of her

complaints go to that testimony. With respect to the other matters the

court withheld its ruling. (RR7-57).

      The threshold question is whether or not the evidence had

relevancy beyond character conformity under Rule 404(b). In each


                                       14
instance it was relevant both to rebut the defensive theory of self-

defense and to show motive.

      In this case it was uncontested that the Appellant stabbed Antonio

Jennings multiple times with a knife. The only issue in the case was

whether or not she did so in self-defense. Mr. Jennings testified that the

Appellant had long been upset because he continued to see and co-

parent his children with their mother, Crystal Whiteside. He stated that

on the night of the stabbing she was angry because he had spent part of

the day with his daughter and her mother celebrating the child’s

birthday. Jennings said that, after an attempt to reconcile that led to a

moment of intimacy, she again expressed anger about Crystal and

grabbed the knife and repeatedly stabbed him.

      The Appellant, on the other hand, claimed to the responding

officers that she had stabbed Jennings in self-defense because he was

sexually assaulting her. He also went to the police department to make

that claim, but refused to give a statement concerning the alleged

assault. During trial she consistently urged that she had acted in self-

defense in the voir dire of the jury panel, cross examination of the

State’s witnesses, and in the evidence she offered, including the

testimony of the SANE nurse giving her detailed account of the events.


                                   15
      By pursuing the defensive theory of self-defense, she also placed

motive in issue. Proof of motive for the crime tends to negate claims

that the accused acted only in self-defense. Lomaugh v. State, 514 S.W.

2d 758 (Tx. Cr. App. 1974).

      The Appellant attempts to dismiss the question of motive out of

hand by observing that motive was not one of the elements of the

offense charged, however, evidence of motive is always admissible

because it is relevant as a circumstance tending to prove the

commission of the offense. Bush v. State, 628 S.W.2d 441, 444 (Tx. Cr.

App. 1982); Bisby v. State, 907 S.W.2d 949, 958 (Tx. App. Ft. Worth 2nd

Dist. 1995 rev. ref.), cert. den. 528 U.S. 849 (1999).

      The defensive theory of self-defense was raised and relied upon

by the Appellant and, therefore, the State was entitled to rebut it. Proof

of motive was one way to do so. Antonio Jennings testified that the

Appellant stabbed him as a result of a festering jealousy of his continued

contact with the mother of his children. The Appellant contended that

she did so only in order to defend herself from a sexual assault.

      The only question under Rule 404(b) was whether or not the trial

court abused its discretion in finding relevancy with respect to the

evidence admitted beyond mere character conformity.           Evidence is


                                     16
admissible under the rule where it logically serves to make more or less

probable an elemental fact; serves to make more or less probable an

evidentiary fact the inferentially leads to an elemental fact; or where it

serves to make more or less probable defensive evidence that

undermines an elemental fact. Such evidence has relevance beyond

mere character conformity. Montgomery at 387.

      In each instance complained of by the Appellant the trial court did

not abuse its discretion in finding the evidence relevant under Rule

404(b).

Crystal Whiteside

       The Appellant complains of the admission of five instances of

extraneous conduct directed at Crystal Whiteside. (Appellant’s Points of

Error 3, 5, 6, 7, and 8). First, she cites testimony that indicated that she

vandalized Crystal Whitehead’s car shortly after the commission of the

offense charged. Antonio Jennings testified that after he was released

from the hospital he stayed off and on with Crystal Whiteside and

during that time sugar was put in Whiteside’s gas tank and her tires

slashed. (RR9-10). Ms. Whiteside testified that the Appellant began

harassing her and related the incident of vandalism of her vehicle. (RR9-

106, 110). She also stated that she heard the Appellant admit that she


                                    17
was the one who vandalized the car. (RR9-115).            The Appellant

admitted to her friend, Angela Gomez, that she had put the sugar in

Crystal’s car and slashed her tires and had burglarized her home.

(RR10-65, 66, 67).

      Next, she complains about testimony which she characterizes as

evidence of her attempted burglary of Whitesides’ car. This involves

testimony concerning an incident after the stabbing in which she and

Whiteside were arguing and the victim’s brother, Jerry Jennings,

separated them. Crystal Whitesides got into her car and locked the door

and the Appellant attempted to open the driver’s door and get into

Whitesides’ car. (RR9-13, 115, 116). She also alleges that the trial court

erred in admitting evidence that she “stalked” Crystal Whiteside after

the offense. Whiteside testified that the Appellant repeatedly drove by

her residence (RR9-111). Angela Gomez was with the Appellant when

she went out of her way to drive by Whiteside’s house. (RR10-66).

      Then turning to the time prior to the stabbing of Antonio Jennings,

the Appellant complains of testimony that she had threatened Crystal

Whiteside. Antonio Jennings sister, Cheleste Jennings, testified that

prior to her brother’s stabbing the Appellant had told her that she did

not like Crystal Whiteside and that if she was back home she could pay


                                   18
someone a bag of weed to do something bad to her. (RR9-66). Cheleste

also testified that the Appellant told her about a time when she said that

she and Antonio were in a car and saw Crystal Whiteside and the only

thing that prevented her from getting out to “beat her ass” was that

Antonio stopped her and she had a cast on her ankle. (RR9-66).

      Did this evidence logically serve to make more or less probable

the defensive theory that she stabbed Antonio Jennings in self-defense

from sexual assault?     Clearly it did.     It also served to show the

Appellant’s true motive for the stabbing which the defensive theory had

placed squarely in dispute.    The victim testified that the Appellant

stabbed him out of long term jealousy and animosity toward Crystal

Whiteside and that it all came to a head because of time he spent with

her that day for their daughter’s birthday. The Appellant’s defensive

theory was that she did not act from the jealousy motive but only to

defend herself from sexual assault.        Clearly a pattern of animosity

toward Ms. Whiteside both before and after the stabbing made the

motive of jealousy more probable and the defensive theory of self-

defense unrelated to Jennings' relationship with Whiteside less

probable.




                                    19
Cheleste Jennings and Jerry Jennings

      After the stabbing the Appellant broke into the house of Antonio

Jennings' sister, Cheleste Jennings, and vandalized her car. (RR9-9, 63,

65). The Appellant admitted that she had done so to Angela Gomez.

(RR10-66).

      Also after the commission of the offense, the Appellant vandalized

the car belonging to Antonio Jennings’ brother, Jerry Jennings. She

admitted that she had slashed his tires and offered to reimburse him for

his loss. (RR9-137, 138).

      Neither Cheleste nor Jerry Jennings had experienced any problem

with the Appellant prior to the stabbing. (RR9-65, 134 ). Her anger once

again reasonably tended to make her defensive theory less probable.

Prior Conviction in Virginia

      The indictment alleged that at the time of the assault the

Appellant and Antonio Jennings were in a dating relationship as that

term is defined in Section 71.0021(b) of the Texas Family Code. See

Section 22.02(b)(1), Texas Penal Code. That section of the Family Code

defines “dating relationship” as a relationship between individuals who

have or have had a continuing relationship of a romantic or intimate

nature. In determining whether such a relationship exists the code


                                   20
provides that the length of the relationship, the nature of the

relationship, and the frequency and type of interaction between the

persons involved.    It also states that a casual acquaintanceship or

ordinary fraternization in a business or social context does not

constitute a dating relationship.

      It was thus incumbent, in order to prove an element of the offense

charged in the indictment, that the Appellant and Mr. Jennings were in

such a dating relationship. The evidence showed that they had become

intimate within three or four weeks after they met (RR8-61, 64) and

moved in together shortly thereafter. The Appellant’s young son and

niece also resided with them. (RR8-64, 65). In exploring the nature of

their relationship as more than a casual acquaintanceship or ordinary

fraternization, the State asked the following:

            “Q.   And at some point did you end up caring for the
                  defendant’s children?

             A.   Yes, ma’am.

             Q.   Okay, how did that come to be?

             A.   She went to see a—her probation officer.” (RR8-67)

At that point the Appellant objected and the trial court took up the

matter outside the presence of the jury. The Appellant advised the court



                                    21
that she believed this was leading to proof of extraneous conduct

involving assaultive behavior and her prior conviction. (RR8-67).

      The State responded by assuring the court that it had no intention

of offering proof of the prior conviction or the underlying facts of that

conviction, but the fact that the victim cared for the Appellant’s children

for an extended time during her absence as part of the context of the

offense and relevant in order to prove the necessary elements of that

offense. (RR8-67, 68).

      The trial court overruled the Appellant’s objection. (RR8-68).

Then, in the presence of the jury the State asked Mr. Jennings if he had

been the sole caretaker of the Appellant’s children for a period of at

least two months and that he continued to reside in the residence with

those children during her absence. (RR8-68, 69). There was no further

mention of why the Appellant was absent. This testimony was relevant

and probative on the issue of the type and nature of the relationship

between the Appellant and the victim and that the relationship was

neither casual nor ordinary. To the extent that the brief mention before

the jury that the Appellant had gone to visit her probation officer

constitutes an extraneous matter under Rule 404(b) it was clearly and




                                    22
reasonably relevant to an essential element of the offense charged and

reasonably tended to make that element more probable.

Conclusion

      The ruling of the trial court admitting the evidence complained of

is certainly within the scope of reasonable disagreement and was not an

abuse of discretion. The Appellant relied upon the defensive theory of

self-defense and placed her motive for the offense directly in question.

All of the evidence the admission of which is complained of reasonably

and logically made her defensive theory less probable and her

motivation as stated by the victim more probable.            It was thus

admissible under Rule 404(b).

Second Issue on Appeal (Appellant’s Points of Error Nine

through Fifteen)

      Did the trial court abuse its discretion in admitting the same

evidence over the Appellant’s objection that its probative value was

substantially outweighed by the danger of unfair prejudice as

prohibited by Rule 403 of the Texas Rules of Evidence?

Standard of Review

      The standard of review is the same as in the first issue on appeal.



                                    23
Application and Analysis

      Rule 403 provides that, although 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. The rule assumes the admissibility of all relevant evidence

and such evidence may be excluded only when the probative value is

substantially outweighed by the unfair prejudice. Mozon v. State, 991

S.W.2d 841, 847 (Tx. Cr. App. 1999).

      In examining the trial court’s ruling under Rule 403, four factors

must be considered: (1) how compellingly the evidence makes a fact of

consequence more or less probable; (2) the potential for the evidence to

impress the jury the jury in and irrational but indelible way; (3) the time

during the trial that the State requires to develop the evidence; and (4)

the State’s need for the evidence. Wheeler v. State, 67 S.W.3d 879, 888

(Tx. Cr.App. 2002).

Compelling?

      Does the evidence compellingly serve to make a fact of

consequence more or less probable? The Appellant contends that it was

not relevant to any issue in the case. This is simply incorrect. She


                                    24
placed her motive squarely in issue by relying throughout the trial upon

the defensive theory of self-defense. Thus whether or not she stabbed

Antonio Jennings in self-defense during the course of a sexual assault or

whether she intentionally and knowingly did so out of jealous anger

became the crucial issue in the case. In fact, she never contested the

stabbing at all but only her motive for it. The evidence that she was

jealous and harbored animosity as a result of Mr. Jennings continued

contact with Crystal Whiteside, the mother of his children, a revealed by

her actions before and after the stabbing were certainly compelling as to

that issue.

Irrational, Indelible Impression?

      The Appellant says that a “seemingly unending parade” of

extraneous acts must have created an irrational impression upon the

thought processes of the jury. The trial court not only charged the jury

fully upon the law of self-defense as relied upon by the Appellant, it also

instructed the jury that it was not to consider any extraneous offenses

unless it first found beyond a reasonable doubt that the Appellant

committed those offenses, and even then only in determining motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, accident, or to rebut a defensive theory, and for no other


                                    25
purpose. (CR-55).    The Appellant had no objections to the charge.

(RR12-4).

      It must be presumed that the jury followed the trial court’s

instructions. Gamez v. State, 737 S.W.2d 315, 324 (Tx.Cr.App. 1987).

There is nothing in the record to indicate otherwise.

      The evidence was admitted by the trial court because it was

directly and compellingly germane to the motive and to the defensive

issue. The jury was instructed as to that purpose. It certainly did not

impress the jury in any irrational way.

Time Necessary

      The Appellant contends that the time spent on the extraneous

conduct evidence was such that it could have “distracted the jury from

consideration of the indicted offense”. Her defensive theory, however,

arguably made that evidence part and parcel of that offense. She did not

claim that she did not stab Mr. Jennings, but only that she did so for a

different reason than he claimed, in self-defense. It was necessary for

the State to meet those allegations in order to prove the charged

offense. While several witnesses testified concerning these matters,

their testimony relevant and highly probative of the issues at hand.

Contrary to the Appellant’s assertions it cannot be said that the time


                                   26
spent on those matters was in any respect disproportionate to that

involving the facts of the charged offense.

State’s Need

      The Appellant concedes that the trial court found that the State

needed the evidence in question. She claims, however, that this is not

the case because “the evidence was clear that Hampton stabbed

Jennings”. (Appellant’s Brief at 33). She is correct in that assertion, but

her argument is disingenuous. Without doubt the evidence that the

Appellant stabbed Antonio Jennings was not only clear but uncontested.

But it certainly does not follow that the State did not need the other

evidence. To the contrary that admission, coupled with the Appellant’s

claim of self-defense, made that testimony vitally necessary. The only

persons present at the time of the offense were the Appellant and the

victim. The victim said that the Appellant stabbed him in a fit of jealous

rage and long standing resentment of his relationship with Crystal

Whiteside.     The Appellant claimed that the victim was sexually

assaulting her and she was only defending herself when she stabbed

him. That became the only real issue in the case. The need of the State

to show the Appellant’s history of jealousy and resentment arising from




                                    27
Mr. Jennings continued contact with Whiteside and her actions

afterward in keeping with that jealous anger was indeed grave.

      The decision of the trial court to admit the evidence in question

over the Appellant’s Rule 403 objection was well within the scope of

reasonable disagreement and was not an abuse of discretion.



                                PRAYER

      The State of Texas respectfully prays that the judgment of

conviction herein be, in all things, be affirmed.

                                            Respectfully Submitted,

                                            HENRY GARZA
                                            District Attorney

                                            /s/     Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney
                                            P.O. Box 540
                                            Belton, Tx 76513
                                            (254) 933-5215
                                            FAX (254) 933-5704
                                            DistrictAttorney@co.bell.tx.us
                                            SBA No. 15200000




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     CERTIFICATE OF COMPLIANCE WITH RULE 9

     This is to certify that the State’s Brief is in compliance with Rule 9

of the Texas Rules of Appellate Procedure and that portion which must be

included under Rule 9.4(i)(1) contains 4,223 words.




                                           /s/   Bob D. Odom
                                           BOB D. ODOM
                                           Assistant District Attorney



                  CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of this brief has been

served upon, Richard E. Wetzel , Counsel for Appellant, electronically

addressed to him at wetzel_law@1411west.com on this 20th day of

January, 2015.




                                           /s/   Bob D. Odom
                                           BOB D. ODOM
                                           Assistant District Attorney




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