Opinion issued February 13, 2020




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NOS. 01-19-00151-CR
                                  01-19-00153-CR
                           ———————————
                        JEREMY L. JONES, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 174th District Court
                            Harris County, Texas
                   Trial Court Case No. 1551898 & 1551899


                         MEMORANDUM OPINION

      A jury convicted appellant, Jeremy L. Jones, of aggravated assault of a

person with whom he has or has had a dating relationship1 and aggravated assault,2


1
      Trial court number 1551898, appellate court number 01-19-00151-CR.      The
      complainant in this case is Angela Garcia.
and the trial court assessed punishment at 38 years’ confinement and 20 years’

confinement, respectively. In two issues, appellant contends that the trial court

erred by: (1) admitting evidence in both cases of a telephone call appellant made

from jail over his Texas Rule of Evidence 403 objection and (2) refusing to charge

the jury on the lesser-included offense of aggravated assault in the aggravated-

assault-of-a-family-member case. We affirm.

                                 BACKGROUND

      Appellant and Angela Garcia dated for some time, and, even after they broke

up, they maintained a casual, sexual relationship. However, when Angela began

dating Damarcus Jones, she attempted to sever ties with appellant completely, and

he began threatening her. In April 2017, Angela spoke with police about

appellant’s threats, but she heard nothing further from the police about the matter.

      In the early morning hours of May 14, 2017, appellant broke through the

backdoor of Angela’s apartment and shot her and Damarcus while they lay in bed.

Both Angela and Damarcus suffered serious injuries, and both identified appellant

as the shooter. Appellant was charged with aggravated assault of a person with




2
      Trial court number 1551899, appellate court number 01-19-00153-CR. The
      complainant in this case is Damarcus Jones.
                                          2
whom he has had a dating relationship for shooting Angela3 and aggravated assault

for shooting Damarcus.4

                                 RULE 403 OBJECTION

      In his first issue, appellant contends that the trial court erred by permitting

the State to introduce evidence of a jailhouse telephone call from appellant to a

friend over appellant’s objection under Texas Rule of Evidence 403.

Background

      At trial, Daniel Miller, who was appellant’s friend and Angela’s brother,

testified about a telephone call that he received from appellant while appellant was

in jail.5 Daniel identified the State’s recording of the call, Exhibit 13, as a true and

correct recording of a conversation between appellant and him. On the tape, there

is some discussion between Daniel and appellant about whether “she” will be at an

upcoming court appearance, after which appellant says, “I’m definitely not f–-king

with her no more.” Daniel says, “You’ve learned your lesson,” and appellant

responds, “Yeah, I definitely won’t do that no more.”           Before the tape was

admitted, appellant’s counsel objected that the tape was “more prejudicial than

probative” and should be excluded pursuant to Texas Rule of Evidence 403. The

3
      See TEX. PENAL CODE § 22.02 (a), (b).
4
      See TEX. PENAL CODE § 22.02 (a).
5
      The telephone call was edited such that it did not reveal to the jury that it was
      made from the jail.
                                           3
trial court overruled appellant’s objection, and admitted the tape of the telephone

call.

Standard of Review and Applicable Law

        We review a trial court’s ruling to admit or exclude evidence for an abuse of

discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). A

trial court abuses its discretion when its ruling falls outsize the zone of reasonable

disagreement. Id.

        Under Rule 403, “[t]he court may exclude relevant evidence if its probative

value is substantially outweighed by a danger of . . . unfair prejudice, confusing the

issues, misleading the jury, undue delay, or needlessly presenting cumulative

evidence.” 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.” Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010). “The

term ‘probative value’ refers to the inherent probative force of an item of

evidence—that is, how strongly it serves to make more or less probable the

existence of a fact of consequence to the litigation—coupled with the proponent’s

need for that item of evidence.” Id. (quoting Casey v. State, 215 S.W.3d 870, 879

(Tex. Crim. App. 2007)). “‘Unfair prejudice’ refers to a tendency to suggest a

decision on an improper basis, commonly, though not necessarily, an emotional

one.” Id. “It is only when there exists a clear disparity between the degree of


                                          4
prejudice of the offered evidence and its probative value that Rule 403 is

applicable.” Id. (quoting Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App.

1997)).

      In conducting a Rule 403 analysis, a trial 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)         A trial

court is entitled to broad discretion in ruling on a Rule 403 objection. State v.

Mechler, 153 S.W.3d 435, 438 (Tex. Crim. App. 2005).

Analysis

      Appellant argues that “[t]he problem with the conversation in State’s Exhibit

No. 13 is that it is not clear what the men are talking about” and that “before

evidence of that nature is admitted the actual meaning of the statements has to be

crystal clear.” Appellant further contends that “[t]he phone call in question simply




                                         5
had no probative value because it required the jury to speculate as to the

appellant’s meaning.”

      We disagree with appellant’s premise that, just because the telephone call

might create conflicting inferences (i.e., it is either a confession or appellant is

talking about something else entirely), it lacks probative value.6 It is within the

province of the jury to resolve any ambiguity or doubt as to the meaning of

appellant’s statements.   See Hernandez v. State, 470 S.W.3d 862, 869 (Tex.

App.—Fort Worth 2015, pet. ref’d). Further, “[w]e presume the factfinder resolved

any conflicting inferences in favor of the verdict, and we defer to that resolution.”

Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018).

      Because the jury resolved any conflicting inferences in favor of the verdict,

we assume that they found appellant’s statements to be “tantamount to a

confession,” as appellant asserts in his brief. The issue, thus, is whether the

admission of statements tantamount to a confession are unduly prejudicial in

violation of Rule 403.

      Here, the probative value of appellant’s statements7 is high because it serves

to make a fact of consequence—whether appellant shot Angela—more or less


6
      We also note that appellant does not make a Rule 401 relevancy argument on
      appeal.
7
      His statements include inculpatory comments that he had “learned his lesson,” “I
      won’t do that no more,” and he was “[d]efinitely not f---ing with her no more.”
                                          6
probable. See Mechler, 153 S.W.3d at 440. And, while appellant’s statements are

undoubtedly prejudicial, they are not unfairly prejudicial because they relate

directly to one of the charged offenses and do not have a great potential to impress

the jury in an irrational way. See id. Arguably, however, the State did not have a

great need to introduce the telephone call with appellant’s inculpatory statements

in light of the two eyewitness identifications of appellant by the complainants. See

id. at 441. But, because of the strength of the State’s identification evidence, it is

unlikely that the jury gave undue weight to appellant’s statements in the telephone

call or that it was unequipped to evaluate the probative force of the evidence. See

Gigliobianco, 210 S.W.3d at 641. No undue amount of time was needed to develop

the evidence. The telephone conversation had been edited and the jury heard only a

one minute and 41 second excerpt from it. Id. at 641–42.

      Thus, the trial court, after balancing the Rule 403 factors, could have

reasonably concluded that the probative value of appellant’s statements in the

telephone call was not substantially outweighed by the countervailing factors

specified in the rule. See id.

      We overrule issue one.




                                          7
                        LESSER-INCLUDED OFFENSE

      In his second issue on appeal, appellant contends that “it was reversible error

for the trial court to refuse to instruct the jury on the lesser offense of aggravated

assault.”8

Background

      During her testimony, Angela explained that she and appellant had dated for

a year, but, after they broke up, they continued to have a sexual relationship, which

she agreed could be described as being “sex buddies.” Appellant contends that,

considering this testimony, the jury should not have been charged only on the

offense of aggravated assault involving a dating relationship; it should also have

been charged on the lesser-included offense of aggravated assault.

Standard of Review and Applicable Law

      When reviewing alleged charge error, we first determine whether error exists

and then, if so, ascertain whether the resulting harm is sufficient to warrant a

reversal. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). We follow a

two-step test in determining whether a trial court is required to give a requested

instruction on a lesser-included offense. Bullock v. State, 509 S.W.3d 921, 924

(Tex. Crim. App. 2016). The first step is to determine whether the requested

instruction pertains to an offense that is a lesser-included offense of the charged


8
      This issue relates only to the appeal in which Angela is the complainant.
                                           8
offense, which is a matter of law. Id. Under this step, an offense is a lesser-

included offense if it is within the proof necessary to establish the offense charged.

Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011). The second step is to

ask whether there is evidence in the record that supports giving the instruction to

the jury. Id. Under this step, a defendant is entitled to an instruction on a lesser-

included offense when there is some evidence in the record that would permit a

jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-

included offense. Rice v. State, 333 S.W.3d 140, 145 (Tex. Crim. App. 2011). The

evidence must establish the lesser-included offense as a valid, rational alternative

to the charge offense. Id.

Analysis

      The parties agree that, in this case, aggravated assault is a lesser-included

offense of aggravated assault of a person with whom appellant has or has had a

dating relationship, with the only additional element requiring the State to prove a

dating relationship between appellant and Angela. Thus, we turn to the second

prong of the test for a lesser-included offense, i.e., whether there is some evidence

in the record that would permit a jury to rationally find that, if the appellant is

guilty, he is guilty only of aggravated assault. In other words, is there more than a

scintilla of evidence that appellant and Angela did not have a dating relationship?

We hold that there was not.


                                            9
      A “dating relationship” is statutorily defined as “a relationship between

individuals who have or have had a continuing relationship of a romantic or

intimate nature.” TEX. FAM. CODE § 71.0021(b).           The existence of such a

relationship shall be determined based on consideration of (1) the length of the

relationship, (2) the nature of the relationship, and (3) the frequency and type of

interaction between the persons involved in the relationship. Id. A casual

acquaintanceship or ordinary fraternization in a business or social context does not

constitute a “dating relationship.” Id. § 71.0021(c). Applying these factors, the

court of criminal appeals has held that evidence of a “dating relationship” was

sufficient when the record showed that the defendant and the victim each

“occasionally . . . spent the night with the other at the other’s residence” from

January 2005 through February 8, 2005. Villarreal v. State, 286 S.W.3d 321, 324

(Tex. Crim. App. 2009).

      Appellant contends that there is evidence that he and Angela did not have a

dating relationship, and he points to her testimony, in which she stated, “Well, I

wouldn’t call it a relationship. We would just hang out, have intercourse, and go on

about our days.” Angela agreed with defense counsel’s characterization of her

relationship with appellant as just “sex buddies.” Essentially, appellant argues that

because his relationship with Angela had devolved from dating to a purely sexual




                                         10
relationship with no commitment, he and Angela did not “have or have had” a

dating relationship. We disagree.

      It is undisputed that Angela and appellant dated for some period of time.

Angela’s father, Larry Garcia, testified that “[t]hey were in a relationship for a few

good years.” He also said that “[t]he had been dating for about five or six years,”

before Angela left appellant. Garcia testified that he was aware that his daughter,

Angela, had dated appellant for four to five years.           Garcia stated, “Their

relationship, as far as I seen, they were boyfriend and girlfriend the whole time I

seen them.” Appellant told Garcia that he loved Angela.

      Angela’s current boyfriend and the other complainant in this case, Damarcus

Jones, testified that he was aware of the on-again-off-again relationship between

Angela and appellant. He stated, “I had known that they had a relationship before

me and her started talking, but once me and her started talking, she wasn’t talking

to him.”

      Angela’s brother, Daniel Miller, testified that he was aware of the dating

relationship between his sister and appellant. He testified that they officially

became boyfriend-girlfriend “maybe like a week or two” after he introduced them.

Miller testified, “They’ve been together for like—I want to say five years before

all this stuff happened, or four years, somewhere around there.” He also noted that

Angela and appellant lived together as a couple for approximately six to eight


                                         11
months. Miller testified that even when they did not live together, they saw each

other “constantly; every day for years.”

      Angela, however, testified that she only dated appellant for one year, but

“[they] had broken up, went [their] own way;” and after that “[they] were just like

on and off.” Angela testified, “We’d see each other, we’ll have intercourse, and

just go off and do our own things.” She testified that this strictly sexual

relationship continued for “a couple of years,” during which they would have sex

“every other week or so.”

      As seen from the testimony above, even if we were to disregard the time that

Angela claimed that she and appellant were just “sex buddies,” there is evidence

that Angela and appellant were in a dating relationship for, at most, four to five

years, or at least, one year. While dating, they had a sexual relationship, lived

together for six to eight months, and saw each other “constantly.” This was not a

casual acquaintanceship or ordinary fraternization, and there is no controverting

evidence to suggest that it was. The fact that the dating relationship ended

sometime before the shooting is irrelevant because the statute requires only that

they “have or have had a continuing relationship of a romantic or intimate nature.”

See Hill v. State, No. 01-10-00926-CR, 2012 WL 983338 (Tex. App.—Houston

[1st Dist.] Mar. 22, 2012, no pet.) (mem. op.) (interpreting TEX. FAM. CODE §

71.021(b) and holding that jury permitted to find that “a dating relationship existed


                                           12
if it found that [the defendant] and [the complainant] had a continuing relationship

of a romantic or intimate nature in the past, regardless of whether that relationship

was ongoing at the time of the assault”); see also Sanchez v. State, 499 S.W.3d

438, 443 (Tex. Crim. App. 2016) (“If the legislature had intended for there to be an

explicit limit on the length of time between the dating relationship and the assault,

it would have inserted one into the statute”).

      Because there is no evidence that appellant and Angela never had a dating

relationship, the trial court did not err by refusing to charge the jury on the lesser-

included offense of aggravated assault in the case in which Angela is the

complainant.

      We overrule issue two. In light of our disposition of this issue, we need not

also decide whether an ongoing, but purely sexual relationship is a “continuing

relationship of a romantic or intimate nature,” as required by section 71.021(b) of

the Family Code, and we decline to do so.

                                  CONCLUSION

      We affirm the trial court’s judgment.



                                                 Sherry Radack
                                                 Chief Justice

Panel consists of Chief Justice Radack and Justices Kelly and Goodman.

Do not publish. TEX. R. APP. P. 47.2(b).
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