                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-17-00053-CR


MACMICHAEL KELECHI NWAIWU                                          APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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      FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY
                   TRIAL COURT NO. 1401341

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                        MEMORANDUM OPINION1

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                               I. INTRODUCTION

      Appellant MacMichael Kelechi Nwaiwu appeals his conviction for assault

causing bodily injury to a family member for which the trial court placed him on

two years’ community supervision. In two points, Nwaiwu argues that the trial

court abused its discretion by denying one of his challenges for cause and by


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      See Tex. R. App. P. 47.4.
allowing the State’s domestic-violence expert to testify about domestic violence

in general and typical behaviors of victims of such violence.        Because we

conclude that the trial court did not abuse its discretion by denying Nwaiwu’s

challenge for cause and because we conclude that the trial court properly

determined that the State’s witness qualified as an expert and that her testimony

would aid the jury, we will affirm the trial court’s judgment.

                                  II. BACKGROUND

      Aaron and Valerie Kreag were driving to Southlake Town Center to see a

movie when they saw a car stopped along Highway 1709. They also observed

something flying out of that car’s window. The couple decided to stop because

they thought that someone in the car might need medical attention. When the

Kreags pulled up parallel to the car, both Aaron and Valerie could see Nwaiwu on

top of a slumped-over woman, striking her face, head, and neck with both of his

hands. The woman was later identified as Nwaiwu’s girlfriend (Girlfriend).

      According to Aaron, Girlfriend was screaming, “Help me, help me,” while

also attempting to avoid Nwaiwu’s strikes. Aaron immediately parked his vehicle,

walked over to the driver’s side of Nwaiwu’s car, and drew his gun—ordering

Nwaiwu to stop hitting Girlfriend and to get out of the car.      Another passing

witness saw Aaron holding the gun toward Nwaiwu and, believing that a road-

rage incident was occurring, called 911.

      Multiple officers were dispatched.        Southlake Police Officer Nathaniel

Anderson arrived on the scene and ordered both men to lie on the ground.


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Because Aaron was armed, Anderson said that he initially focused on him but

that Aaron showed no signs of aggression and was immediately disarmed.

According to Anderson, he saw scratches on Girlfriend’s face. He said she also

demonstrated how Nwaiwu had hit her with an open hand but denied being hit

with his fists.

       Southlake Police Corporal Jeff Paul said that when he arrived, he spoke

with Girlfriend. According to Paul, Girlfriend was emotionally upset and crying.

Paul said that Girlfriend had a cut on the inside of her lip. Southlake Police

Detective Weston Wood testified that Girlfriend was very distraught and

repeatedly said, “He beat me.” Southlake Police Officer Kevin Diehl also arrived

on the scene, handcuffed Nwaiwu, and searched him for weapons.               Diehl

described Nwaiwu as being angry and agitated. Diehl also said that he could see

Girlfriend crouched toward the passenger side door clearly in distress, breathing

heavily and sniffling. Diehl believed that she was injured or hurt.

       At trial, Girlfriend denied that Nwaiwu had physically assaulted her. She

explained that Nwaiwu had grabbed her soda and that when she went to grab it

back, it spilled on both of them. Girlfriend said that they both took clothing from

the back of the car, wiped themselves, and then flung the clothing out of the

window. She also said that their struggle was mutual and that anything she had

said to the contrary was coerced by the police or was due to her lack of

experience in being questioned by police.




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      During its case in chief, the State called Beth Hollingsworth, a licensed

marriage and family therapist who works with domestic violence victims at One

Safe Place and in private practice.    Over Nwaiwu’s objection, Hollingsworth

explained that there are three phases in a cycle of violence. First, there is a

“tension building” phase where the abuser ensures that he has power and control

over the victim and the victim feels that she is “walking on eggshells.” Second,

there is the “abusive incident” where the abuser, through force, makes the victim

understand that the abuser has power over her.          And third, there is the

“honeymoon” phase where the abuser apologizes and either promises to seek

help or promises that the abuse will never happen again.

      Hollingsworth further explained the power-and-control wheel, wherein an

abuser uses coercion, threats, intimidation, and even financial abuse to assert

control over the victim. She also discussed the concepts of minimization and

denial and why sometimes a victim will feel safer by minimizing or denying the

abuse. Finally, Hollingsworth discussed “lethality” assessments—that is, when

the abuse is most dangerous for a victim.

      A jury found Nwaiwu guilty of assault causing bodily injury to a family

member.    After hearing punishment-phase evidence, the trial court assessed

punishment at 180 days in jail, suspended the imposition of the sentence, and

placed Nwaiwu on community supervision for two years. This appeal followed.




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                                   III. DISCUSSION

      A.     The Trial Court’s Denial of Nwaiwu’s Challenge for Cause

      In his first point, Nwaiwu argues that the trial court abused its discretion by

denying his challenge for cause to Veniremember 8, ostensibly because she had

demonstrated bias or prejudice against him and the law of the case. The State

counters that Veniremember 8 repeatedly stated that she would afford Nwaiwu

the presumption of innocence and require the State to prove his guilt beyond a

reasonable doubt and that thus the trial court did not abuse its discretion. We

agree with the State.

      During voir dire, as the prosecutor was asking the venire panel whether

there was anyone who presumed that Nwaiwu was guilty simply based on his

being the defendant in this case, a few veniremembers suggested that they

would automatically believe that Nwaiwu had done something wrong. When the

prosecutor asked Veniremember 8 how she felt, Veniremember 8 said, “I do. I

feel like either -- I don’t look at him and think he’s -- anything happened, but

either somebody had it out for him or something happened.” But after further

questioning, Veniremember 8 said that she thought she could start with a “clean

slate” and “would give [Nwaiwu] a fair trial.”

      Later, while being questioned by the prosecutor in individual voir dire

examination, Veniremember 8 said that she understood that the State had to

prove its case beyond a reasonable doubt, that she would afford Nwaiwu the

presumption of innocence, and that she would not hold the fact that he was the


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defendant against him.              In response to defense counsel’s question,

Veniremember 8 explained her initial response in voir dire: “Well, I said there’s

some reason he’s here.         I don’t know if it’s what he did or somebody had

something against him like in anger or something like that. I don’t know.” When

defense counsel questioned her further, Veniremember 8 said again that she

thought she could give Nwaiwu a fair trial and also said, “I don’t think [Nwaiwu is]

guilty until he’s proven guilty.”

      We review a trial court’s ruling on a challenge for cause for an abuse of

discretion.   Ladd v. State, 3 S.W.3d 547, 559 (Tex. Crim. App. 1999), cert.

denied, 529 U.S. 1070 (2000). When reviewing a trial court’s decision to grant or

to deny a challenge for cause, we look at the entire record. Feldman v. State, 71

S.W.3d 738, 744 (Tex. Crim. App. 2002). We give great deference to the trial

court’s decision because the trial judge is present to observe the demeanor of

the veniremember and to listen to her tone of voice. Id. Particular deference is

given when the potential juror’s answers are vacillating, unclear, or contradictory.

Id.; King v. State, 29 S.W.3d 556, 568 (Tex. Crim. App. 2000).

      Here, even assuming that Veniremember 8’s initial response was unclear,

she nonetheless repeatedly said that she would afford Nwaiwu a fair trial, that

she would presume he was innocent until proven guilty, and that she would hold

the State to its burden of proof (beyond a reasonable doubt). Based on the

entire record, we hold that the trial court did not abuse its discretion by denying

Nwaiwu’s challenge for cause to Veniremember 8. See Strahan v. State, 306


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S.W.3d 342, 346–47 (Tex. App.—Fort Worth 2010, pet ref’d) (holding that trial

court did not abuse discretion by denying defendant’s challenge for cause when

veniremember said she felt “uncomfortable” with the subject matter of the case,

would try to hold the State to its burden, and had not unequivocally stated one

way or the other that she could not be fair). We overrule Nwaiwu’s first point.

      B.     Expert-Witness Testimony

      In his second point, Nwaiwu argues that the trial court abused its discretion

by allowing Hollingsworth to testify as a domestic-violence expert. Specifically,

Nwaiwu argues that Hollingsworth’s testimony was not relevant because there is

no evidence in the record that the couple had a history of domestic violence,

Hollingsworth had no personal knowledge about Nwaiwu and Girlfriend’s

relationship, and Girlfriend testified for the defense that no assault had occurred.

It is not clear from Nwaiwu’s brief whether he is challenging Hollingsworth’s

qualifications to testify as an expert. The State counters that Hollingsworth’s

testimony was reliable given Hollingsworth’s qualifications and that it was

relevant because Girlfriend had told officers that Nwaiwu had assaulted her but

at trial she testified for the defense that no assault had occurred. We agree with

the State.

      We review the trial court’s determination as to the admissibility of expert

testimony for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391

(Tex. Crim. App. 1991) (op. on reh’g).       Expert testimony is admissible when

scientific, technical, or other specialized knowledge will assist the factfinder in


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understanding the evidence or in determining a fact issue. Tex. R. Evid. 702;

Cohn v. State, 804 S.W.2d 572, 575 (Tex. App.—Houston [14th Dist.] 1991),

aff’d, 849 S.W.2d 817 (1993). Evidence admissible under Rule 702 may include

testimony which compares general or classical behavioral characteristics of a

certain type of victim with the specific victim’s behavior patterns. See Duckett v.

State, 797 S.W.2d 906, 917 (Tex. Crim. App. 1990) (holding testimony of expert

on whether the reaction of complaining child was similar to the reaction of most

victims of child abuse was helpful to the jury in determining if an assault

occurred); Fielder v. State, 756 S.W.2d 309, 321 (Tex. Crim. App. 1988) (holding

that expert testimony aided factfinder where expert explained inconsistency in

appellant’s behavior consistent with that of typical battered women).

      Because the average juror will not typically be familiar with the effect of

domestic violence on victims and the dynamics of the relationship between

abuser and victim, expert testimony has generally been held to be admissible to

explain recantations, delays in reporting, lies to the police, and why a

complainant would continue living with a family member after an alleged assault.

See Salinas v. State, 426 S.W.3d 318, 323 (Tex. App.—Houston [14th Dist.]

2014) (op. on reh’g), rev’d on unrelated grounds, 464 S.W.3d 363 (Tex. Crim.

App. 2015); Dixon v. State, 244 S.W.3d 472, 480 (Tex. App.—Houston [14th

Dist.] 2007, pet. ref’d); Scugoza v. State, 949 S.W.2d 360, 363 (Tex. App.—San

Antonio 1997, no pet.).




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      Specifically as it relates to this case, multiple courts have held that a trial

court does not abuse its discretion by allowing an expert witness to testify

regarding the cycle of violence in a domestic setting when the victim testifies for

the defendant or recants an earlier claim of abuse.          See Mendoza v. State,

No. 08-13-00293-CR, 2015 WL 5999596, at *2, *4–5 (Tex. App.—El Paso

Oct. 14, 2015, pet. ref’d) (not designated for publication) (holding testimony

regarding cycle of family violence relevant when assault was witnessed by third

party but victim refused to cooperate with police and testified for defense);

Capello v. State, No. 03-05-00553-CR, 2006 WL 2453021, at *4 (Tex. App.—

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

(determining that expert testimony on cycle of abuse was relevant because it

assisted jury in understanding why victim of domestic violence might lie to

police). Furthermore, a trial court does not abuse its discretion by allowing an

expert witness to testify about domestic violence in general and the typical

behaviors of victims of abuse even though the witness has no personal

knowledge of the defendant and victim.          See Scugoza, 949 S.W.2d at 363

(holding that trial court did not abuse its discretion by allowing witness to testify to

general domestic violence behaviors despite having no personal knowledge of

defendant and victim).

      Here, Hollingsworth testified regarding domestic violence in general and

typical behaviors of victims of domestic violence. Hollingsworth did not purport to

have any direct or personal knowledge of Nwaiwu and Girlfriend’s relationship,


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nor did she express a direct opinion regarding Girlfriend’s credibility.

Hollingsworth’s testimony described the cycle of violence in domestic-violence

situations, “a topic with which the average lay person could not be expected to be

familiar.” Id. And her testimony was relevant to explain why a victim of abuse

would change her story regarding an abusive incident and why a victim might

testify on behalf of her alleged abuser. Indeed, Girlfriend told police on the scene

that Nwaiwu had assaulted her, but at trial she testified for the defense and said

that no assault had occurred. See id. (holding that trial court did not abuse its

discretion by allowing expert testimony describing domestic violence in general

and typical behaviors of victims when victim’s testimony at trial was inconsistent

with her previous report to police).      Thus, the trial court did not abuse its

discretion by allowing Hollingsworth to testify.

      To the extent that Nwaiwu is arguing that Hollingsworth was not qualified

to testify regarding domestic violence in general terms, we conclude that the trial

court did not abuse its discretion by finding her qualified to testify. The record

reflects that Hollingsworth has a master’s degree in marriage and family therapy.

She has worked with approximately 1500 domestic violence victims over the past

eleven years at One Safe Place or in private practice. She also co-wrote a family

therapy book entitled Marriage and Family Therapy:            A Practice-Oriented

Approach, and she has taught classes on the dynamics of family violence

relationships at both Texas Christian University and Texas Wesleyan University.

Furthermore, she has testified as a domestic-violence expert before. Given her


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training and experience, we conclude that the trial court did not abuse its

discretion by finding that Hollingsworth was qualified to offer her expert

assessment of issues relating to domestic violence, including the cycle of

violence. See Lessner v. State, No. 02-15-00400-CR, 2016 WL 4473263, at *1–

3 (Tex. App.—Fort Worth Aug. 25, 2016, no pet.) (mem. op., not designated for

publication) (holding that licensed master social worker and executive director of

family crisis center was qualified to give expert testimony on the dynamics of

family violence and typical behavior of domestic violence victims in relation to

their abuser); see also Brewer v. State, 370 S.W.3d 471, 473–74 (Tex. App.—

Amarillo 2012, no pet.) (holding that master social worker with specialized

training employed by police to work with domestic violence victims qualified to

give expert testimony regarding the dynamics of domestic violence); Scugoza,

949 S.W.2d at 363 (holding that program services director of county women’s

shelter qualified to give expert testimony describing cycles of spousal abuse).

We overrule Nwaiwu’s second point.

                                IV. CONCLUSION

      Having overruled both of Nwaiwu’s points on appeal, we affirm the trial

court’s judgment.




                                                  /s/ Bill Meier
                                                  BILL MEIER
                                                  JUSTICE


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PANEL: MEIER, KERR, and PITTMAN, JJ.

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

DELIVERED: August 9, 2018




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