             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________
           No. 02-17-00268-CR
      ___________________________


        AUSTIN PAYNE, Appellant

                      V.


          THE STATE OF TEXAS




  On Appeal from the 213th District Court
         Tarrant County, Texas
       Trial Court No. 1446222D


Before Sudderth, C.J.; Gabriel and Birdwell, JJ.
  Memorandum Opinion by Justice Gabriel
                           MEMORANDUM OPINION

      Appellant Austin Payne appeals from his convictions for three counts of

aggravated sexual assault and for one count of aggravated assault with a deadly

weapon. In five points, Payne argues that the trial court abused its discretion by

admitting evidence that he had previously assaulted the complainant and used drugs

and by denying his request for a limiting instruction on the jury’s consideration of the

previous assaults. Because the trial court did not abuse its discretion by admitting

evidence of the prior relationship history between Payne and the complainant and

because Payne failed to preserve his past-drug-use and limiting-instruction arguments,

we affirm the trial court’s judgments.

                       I. PROCEDURAL BACKGROUND

      Payne was indicted with six counts of aggravated sexual assault and one count

of aggravated assault with a deadly weapon against his girlfriend Amanda Brown.1

Each count was alleged to have occurred on February 20, 2016. The indictment

included a repeat-offender notice that Payne had been convicted of assault involving a

family member in 2014. Before trial, the State notified Payne that it intended to

introduce evidence at the guilt or innocence phase of trial that Payne previously

assaulted Brown multiple times in November 2015, in December 2015, in January

2016, and on February 19, 2016—the day before the indicted offense. See Tex. Code


      1
       We use an alias to refer to the complainant. See Tex. R. App. P. 9.8 cmt.; Tex.
App. (Fort Worth) Loc. R. 7.

                                           2
Crim. Proc. Ann. art. 38.371(b); Tex. R. Evid. 404(b)(2). The evidence was admitted

during trial, and the jury found Payne guilty of three counts of aggravated sexual

assault and one count of aggravated assault with a deadly weapon.2 The same jury

then assessed Payne’s sentence at 53 years’ confinement for each count, which the

trial court ordered to run concurrently.

  II. EVIDENCE OF PAST HISTORY WITH BROWN AND DRUG USE

                            A. PAST HISTORY WITH BROWN

         In three of his points, which he jointly argues in his brief, Payne attacks the

admission of the evidence regarding his past relationship history with Brown.

Specifically, he asserts that the evidence was inadmissible character-conformity

evidence and that its probative value was substantially outweighed by the danger of

unfair prejudice. See Tex. R. Evid. 403, 404(a)(1), (b)(1). We review the trial court’s

admission of evidence for an abuse of discretion. See Beham v. State, 559 S.W.3d 474,

478 (Tex. Crim. App. 2018); De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App.

2009).

         The State notified Payne before trial that it intended to offer evidence of

Payne’s past violent relationship with Brown and past drug use. See Tex. Code Crim.

Proc. Ann. art. 38.371; Tex. R. Evid 404(b)(2). Before the beginning of testimony and

outside the jury’s presence, the State informed the trial court that Payne had an

objection to the admission of the relationship-history evidence. When asked for his

         These were the only counts submitted to the jury.
         2



                                            3
objection, Payne stated that it was not relevant and that any ruling should be delayed

based on Payne’s motion in limine. The trial court overruled the relevance objection

and denied the motion in limine on the issue, ruling that “the State [could] develop

relevant issues, including the relationship of the parties.” Payne then lodged an

objection under rule 404(b) that the evidence was inadmissible character-conformity

evidence and was not admissible for another purpose. See Tex. R. Evid. 404(a)(1),

(b)(1)–(2). The trial court overruled this objection. Payne then urged the trial court

to make “at least a finding of fact or conclusion of law that . . . it’s not going into the

actual items listed in 404(b)(2).” The State argued that the past history with Brown

showed “the element of fear of physical force”3 and “certainly goes to motive,

opportunity, intent, preparation, plan, knowledge, and absence of mistake and lack of

accident.” See Tex. Penal Code Ann. § 22.021(c); Tex. R. Evid. 404(b)(2).

       The trial court overruled the objection and allowed “the State to develop what’s

been outlined here for the purposes that’s been stated.” This evidence was admitted

many times during Payne’s trial, and Payne would consistently but fruitlessly reassert

his prior objections.4


       An element of aggravated sexual assault is that the defendant acted without the
       3

other person’s consent—the defendant compelled submission through threats of
violence that the other person believed the defendant had the present ability to
execute. See Tex. Penal Code Ann. §§ 22.011(b)(2), 22.021(c).

       Although the exact language of his objections differed slightly each time,
       4

Payne would refer to his “previous” objection. From the context of the record, it is
apparent that the trial court understood the grounds of Payne’s objections to the
admission of the prior-relationship evidence. See Tex. R. App. P. 33.1(a)(1)(A).
                                            4
          In prosecutions for aggravated assault involving family violence, the State may

offer 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. Ann. art. 38.371(b). However, the admission of

evidence under this article does not allow admission of evidence that is proffered

solely to show character conformity or that otherwise violates the rules of evidence.

Id. art. 38.371(c).

                                        1. Rule 404

          Each prior incident involved Payne’s physical assaults of Brown while they

were in a dating relationship.        Payne asserts that these extraneous acts were

inadmissible under article 38.371 because their admission violated rule 404(a)(1) and

(b)(1).     But the past-relationship evidence was relevant for purposes other than

character conformity. At trial, Payne asserted that Brown consented to the sexual

assaults in an attempt to negate an element of the offense. See De La Paz, 279 S.W.3d

at 343 (“One well-established rationale for admitting evidence of uncharged

misconduct is to rebut a defensive issue that negates one of the elements of the

offense.”). Payne’s defensive theory made Brown’s consent a disputed issue; thus, the

State was entitled to offer evidence showing that Brown believed Payne had the ability

to make good on his threats based on her prior experiences with him, an element of

the offense. See Tex. Penal Code Ann. §§ 22.011(b)(2), 22.021(c); Casey v. State,

                                             5
215 S.W.3d 870, 879–82 (Tex. Crim. App. 2007); Foster v. State, No. 01-17-00537-CR,

2018 WL 1914871, at *4 (Tex. App.—Houston [1st Dist.] Apr. 24, 2018, pet. ref’d)

(mem. op., not designated for publication); Brown v. State, 96 S.W.3d 508, 512 (Tex.

App.—Austin 2002, no pet.). The trial court did not abuse its discretion by overruling

Payne’s rule 404 objections. We overrule point one.

                                    2. Rule 403

      Similarly, the admission of this evidence under article 38.371 did not violate

rule 403, which allows the exclusion of relevant evidence if the danger of unfair

prejudice substantially outweighs its probative value. Tex. R. Evid. 403. Probative

value considers “the closeness in time between the extraneous offense and the

charged offense” and “the similarities between the extraneous offense and the

charged offense.” Kiser v. State, 893 S.W.2d 277, 281 (Tex. App.—Houston [1st Dist.]

1995, pets. ref’d).   The evidence that Payne previously and similarly physically

assaulted Brown during the three months before the charged offense rebutted Payne’s

theory that Brown consented. Although the evidence was necessarily prejudicial, it

was not unfairly so compared to its probative value. We conclude that the trial court

did not abuse its discretion by admitting this evidence over Payne’s rule 403

objections. See Foster, 2018 WL 1914871, at *5. We overrule points two and four.

                                B. PAST DRUG USE

      In his third point, Payne seems to assert on appeal that the responding police

officer’s testimony that Brown told him Payne had a history of drug use violated rule

                                          6
802—the hearsay rule—and was therefore inadmissible under article 38.371(c). Tex.

R. Evid. 802. Officer Anthony Stafford, who responded to the crime scene on

February 20, 2016, testified to Brown’s statements to him about the assaults, including

Brown’s assertion that she did not want to go into the shed where Payne had

assaulted her because he “is known to use meth, and . . . he gets crazy when he uses

meth.”     Brown also told Stafford that Payne had thrown a baggie of

methamphetamine in the shed and had handed her a “meth pipe” to hide after he

assaulted her.

      Payne failed to object to the drug-use evidence on the basis of hearsay. The

only objection directed to this specific testimony was to “leading questions.”

Although Payne had raised a hearsay objection earlier in Stafford’s testimony when

the State asked Stafford what Brown had told him about the charged offenses, this

was ineffectual to preserve a hearsay objection to Stafford’s later testimony regarding

Payne’s drug use. Thus, this argument is not preserved for our review.5 See Tex. R.

      5
         Even if the argument were preserved, the evidence was admissible as an
excited utterance. Brown’s statements to Stafford all pertained to her recounting of
the indicted violent offenses. Stafford testified that Brown was “extremely
emotionally drained[,] . . . scared, nervous, [and] worried” when talking to him. After
Stafford noticed that Brown had dried vomit on her shirt, chin, and neck, Brown
explained that Payne’s making her perform “oral sex [had been] so vicious and rough
that it forced her to vomit from it.” We conclude that it was within the trial court’s
discretion to determine that Brown’s statements to Stafford, including her statements
regarding Payne’s past drug use, were excited utterances and, thus, were admissible
under an exception to the hearsay rule. See Tex. R. Evid. 803(2); Zuliani v. State,
97 S.W.3d 589, 595–96 (Tex. Crim. App. 2003); Juarez v. State, 461 S.W.3d 283, 295
(Tex. App.—Texarkana 2015, no pet.); Davis v. State, 268 S.W.3d 683, 703–04 (Tex.
App.—Fort Worth 2008, pet. ref’d).
                                          7
App. P. 33.1(a)(1); Bell v. State, No. 02-18-00244-CR, 2019 WL 1967538, at *3 (Tex.

App.—Fort Worth May 2, 2019, no pet. h.) (mem. op., not designated for

publication); Washington v. State, 449 S.W.3d 555, 565–66 (Tex. App.—Houston [14th

Dist.] 2014, no pet.). We overrule point three.

                            C. LIMITING INSTRUCTION

      In his final point, Payne asserts that the trial court abused its discretion by

refusing his request for an immediate instruction to the jury, informing them of the

appropriate consideration of the relationship-history evidence. See Tex. R. Evid.

105(a). Before Brown began to testify about her past relationship with Payne and

after his admissibility objection had been overruled, Payne requested an immediate

instruction to the jury “that any of this testimony should be limited . . . not for the

guilt/innocence of the charges but . . . to put into context what is under 3[8].371 and

not for the charge [with which] he’s been accused.” The trial court stated its intention

to give the jury an appropriate limiting instruction in the jury charge.6 Payne did not

object to the court’s solution and stated, “Thank you, Judge.” As such, he failed to

preserve this argument for our review.7 See Tex. R. App. P. 33.1(a); Wells v. State,

241 S.W.3d 172, 179 (Tex. App.—Eastland 2007, pet. ref’d). We overrule point five.



      6
       Payne recognized that such an instruction was included in the jury charge.
      7
        Even if preserved, we agree with the State that Payne’s substantial rights were
not affected by the failure to give a contemporaneous limiting instruction. See Tex. R.
App. P. 44.2(b).

                                           8
                                III. CONCLUSION

      The admission of evidence of Payne’s past violent relationship with Brown was

not an abuse of discretion, and Payne failed to preserve his arguments that the drug-

use evidence was inadmissible hearsay and that the trial court erred by failing to

contemporaneously instruct the jury of the limits to its consideration of the

relationship-history evidence. Having overruled Payne’s appellate points, we affirm

the trial court’s judgments. See Tex. R. App. P. 43.2(a).


                                                       /s/ Lee Gabriel

                                                       Lee Gabriel
                                                       Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: May 23, 2019




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