                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                      No. 07-17-00286-CR


                        RUPERT RAYMOND WORK, APPELLANT

                                               V.

                            THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 21st District Court
                                   Burleson County, Texas
                Trial Court No. 14,992; Honorable Carson Campbell, Presiding

                                       November 7, 2019

                              MEMORANDUM OPINION
                     Before QUINN, C.J., and PIRTLE and PARKER, JJ.


       Appellant, Rupert Raymond Work, appeals from his conviction by jury of the lesser-

included misdemeanor offense of assault causing bodily injury1 and the court-imposed




       1
       TEX. PENAL CODE ANN. § 22.01(a)(1) (West 2019). An offense under this section is a Class A
misdemeanor. Id. at § 22.01(b).
sentence of imprisonment for one year. Appellant challenges his conviction through two

issues. We will affirm.2


        BACKGROUND

        Appellant was charged with the third-degree felony offense of assault against a

family member, Robin, by impeding the normal breathing or circulation of the blood by

applying pressure to the throat or neck with his hand or hands.3 The evidence at trial

showed Appellant and Robin dated off and on for several years. The two had a child

together and lived together while the child was young. At the time of the assault, the

couple was not living together. That night, Appellant and Robin went to a bar. They then

went to a second bar where they ran into two of Robin’s cousins, Eddie and Susie. They

arranged for the two couples to go back to Robin’s house and then drive to a third bar

together.


        Appellant and Robin went to Robin’s house first. While there, Appellant decided

he did not want to go to the bar with Eddie and Susie. Appellant and Robin argued. Robin

told the jury Appellant kicked and pushed her onto the concrete steps of her house. She

attempted to use her phone, but she and Appellant struggled over it. Robin testified

Appellant “grabbed me by the throat, threw me into the side of the trailer house.” She

said Appellant had “his knee on my neck and I can feel the pressure and I realize that if I



        2 Originally appealed to the Tenth Court of Appeals, this appeal was transferred to this court by the
Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West
2013). Should a conflict exist between precedent of the Tenth Court of Appeals and this court on any
relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R.
APP. P. 41.3.
        3   TEX. PENAL CODE ANN. § 22.01(b)(2)(B) (West 2019).


                                                     2
don’t let go of this phone, I’m going to die.” As soon as she let go of the phone, Appellant

picked it up, threw it to the ground and smashed it. He then left.


       Robin went to the hospital where she spoke with medical personnel and a police

officer. The police officer also interviewed her the following day. Robin related details in

the second interview that she did not include in the first. Photographs of Robin’s injuries

were admitted into evidence.


       ISSUE ONE—EXCLUSION OF OPINION TESTIMONY

       Appellant’s first issue contends the trial court erred when it excluded opinion

testimony from a witness the defense proffered as an expert in police investigations. As

grounds for his complaint, Appellant argues that because there were no other witnesses

to the acts alleged by Robin, her credibility was a core issue at trial. According to

Appellant, the inconsistencies in her claims and the conflicts between her testimony and

written records impaired her credibility. Therefore, according to Appellant’s theory of the

case, the thoroughness of the investigation was a relevant issue at trial. The State called

the investigating officer at trial. That officer testified to the process he used in the

investigation. Cross-examination revealed that the officer did not interview anyone other

than Robin, did not look at medical records, and did not go to Robin’s home. As such,

Appellant asserts, he should have been able to present the testimony of a private

investigator about the necessary steps in a proper investigation. The State argues the

witness was not qualified to provide an expert opinion because his qualifications did not

fit the subject matter on which he was to testify and the subject matter, i.e., the conduct

of this particular police investigation, was an improper area for expert testimony.



                                             3
         An appellate court reviews the decision to admit or exclude expert testimony for

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

Therefore, we will defer to the trial court’s decision as long as there is evidence in the

record to support the trial court’s ruling. Osbourn v. State, 92 S.W.3d 531, 537-38 (Tex.

Crim. App. 2002) (citations omitted). The court’s decision will be upheld if the decision

was correct on any theory of law applicable to the case. Id. (citations omitted).


         The Texas Rules of Evidence set forth three distinct conditions regarding

admissibility of expert testimony. Vela v. State, 209 S.W.3d 128, 130-31 (Tex. Crim. App.

2006).     First, Rule 104(a) requires that “[p]reliminary questions concerning the

qualification of a person to be a witness . . . be determined by the court . . . .” Id. (citing

TEX. R. EVID. 104(a)). Second, Rule 702 states: “If scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education may testify thereto in the form of an opinion or otherwise.” Id. (citing

TEX. R. EVID. 702). And third, Rules 401 and 402 render testimony admissible only if it

“tend[s] to make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the evidence.” Id.

(citing TEX. R. EVID. 401, 402). These rules require a trial judge to make three separate

inquiries, which must all be met before admitting expert testimony: “(1) the witness

qualifies as an expert by reason of his knowledge, skill, experience, training, or education;

(2) the subject matter of the testimony is an appropriate one for expert testimony; and (3)

admitting the expert testimony will actually assist the fact-finder in deciding the case.




                                              4
These conditions are commonly referred to as (1) qualification, (2) reliability, and (3)

relevance.” Vela, 209 S.W.3d at 131. We will address the third condition.


       Here, Appellant sought admission of a private investigator’s testimony. During

counsel’s questioning of the witness, he asked:


       Defense:      When you are going to investigate a possible crime [--] and
                     you are talking to either witnesses or an alleged victim, what
                     steps do you take to ensure that is a proper investigation?

       Prosecutor: I object, Your Honor. He’s asking him a question as an expert.
                   He stated that he’s not an expert, and I would also object to
                   the field of study as not being specialized or scientific.

       The prosecutor then argued:

                     just to respond to that, his qualifications as an investigator
                     himself I’m not attacking; but for him to render an opinion on
                     someone else’s investigation, I would attack that as both not
                     being a proper field to call an expert in basic criminal
                     investigations; it does not require scientific or specialized
                     knowledge that would aid the jury in making their conclusions
                     but also that it can’t be a field that he has expertise in on
                     another person’s investigation of being proper.



       Defense counsel countered this argument by contending he did not ask the witness

to provide an opinion on this particular investigation; rather, he simply asked him to opine

on the steps necessary to ensure a proper investigation in a case of this nature. The trial

court sustained the State’s objection.


       Appellant offered the testimony of the investigator to support his theory that while

an altercation between the couple occurred—he did not strangle Robin. He spent a great

deal of time at trial exposing the inconsistencies in Robin’s story and in attempting to




                                             5
negate evidence of strangulation.        However, Appellant did not show the private

investigator’s testimony was relevant.


       To do so, the expert was required to “make an effort to tie pertinent facts of the

case to the scientific principles which are the subject of his testimony.” Jordan v. State,

928 S.W.2d 550, 555 (Tex. Crim. App. 1996). In Appellant’s offer of proof, the investigator

was asked if he thought the investigation was properly conducted and also whether

strangulation was likely in this case.       The investigator said he did not believe the

investigation was sufficiently thorough and believed the direct questions asked to Robin

about being choked were improper in an investigation such as this. He also opined

strangulation was not likely in this case.


       The investigator did not show how his opinions would be helpful to the jury nor did

he show how his testimony would have assisted the trier of fact in determining a fact in

issue. Expert testimony is admissible only if it “tend[s] to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable

than it would be without the evidence.” Vela, S.W.3d at 131. The jury was the sole judge

of the facts, the credibility of witnesses and the weight to be given to the testimony.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); see also Wise v. State,

364 S.W.3d 900, 903 (Tex. Crim. App. 2012) (“The factfinder exclusively determines the

weight and credibility of the evidence.”). The investigator’s opinion was not relevant to

whether the jury believed Robin. It was solely within the jury’s province to sift through the

versions of the events as described by Robin and decide what to believe. Chambers,

805 S.W.2d at 461; Wise, 364 S.W.3d at 903. Expert testimony was not relevant to that

determination. See Salazar v. State, 127 S.W.3d 355, 360 (Tex. App.—Houston [14th

                                               6
Dist.] 2004, no pet.) (holding testimony was not relevant if it is “explicitly offered solely as

educational material for the jury to use in assessing the complainant’s credibility”).


       The same is true regarding the investigator’s opinion that Robin was not strangled.

The investigator did not explain how his opinion about strangulation was relevant here.

He had no expertise in strangulation and did not speak with Robin. Nonetheless, his

opinion was offered to rebut Robin’s testimony that Appellant did strangle her. This is,

again, an issue of credibility of witnesses and evaluation of the evidence, something an

expert opinion cannot assist the jury in doing. See Salazar, 127 S.W.3d at 360 (citing

Jordan, 928 S.W.2d at 555 (concluding testimony must be specifically tied to the facts of

the case and not simply an academic discussion on a field of study)).


       Moreover, even if the trial court did err in excluding the investigator’s testimony,

any error was harmless. Under Rule 44.2(b), we must disregard any non-constitutional

error that does not affect an appellant's substantial rights.       TEX. R. APP. P. 44.2(b).

Substantial rights are not affected if, after examining the record as a whole, we have fair

assurance the error did not influence the jury or had but a slight effect. Fuentes v. State,

No. 07-17-00104-CR, 2019 Tex. App. LEXIS 926, at *19 (Tex. App.—Amarillo Feb. 8,

2019, pet. ref’d) (mem. op., not designated for publication) (citing Petetan v. State, No.

AP-77,038, 2017 Tex. Crim. App. LEXIS 286, 2017 WL 915530, at *32 (Tex. Crim. App.

Mar. 8, 2017)). In considering the potential to harm, the “focus is not on whether the

outcome of the trial was proper despite the error, but on whether the error had a

substantial or injurious effect or influence on the jury's verdict. A conviction must be

reversed for non-constitutional error if the reviewing court has grave doubt that the result

of the trial was free from the substantial effect of the error.” Barshaw, 342 S.W.3d at 93-

                                               7
94. “‘Grave doubt’ means that in the judge’s mind, the matter is so evenly balanced that

he feels himself in virtual equipoise as to the harmlessness of the error.” Id. (internal

citations omitted).   Applying that standard here, we find any error in excluding the

proffered testimony did not influence the jury or had only a slight effect. Id. (citation

omitted).


       As noted, Appellant spent a significant amount of time at trial challenging the

strangulation allegation asserted by the State.        Part of the investigator’s proffered

testimony also challenged that allegation as follows:


       Defense:       Okay. And based on what you have seen and heard in
                      reviewing this case, does it appear to you that there is a likely
                      strangulation here?

       Investigator: No.

       Defense:       Are you able to tell what exactly happened here based on
                      reviewing the evidence?

       Investigator: No.

       Defense:       And in your opinion, do you think that the investigation of this
                      case based on your review of the evidence was conducted
                      properly?

       Investigator: I think it was a rush to judgment.


The jury found Appellant guilty of the lesser-included misdemeanor offense of assault

with bodily injury, acquitting him of the greater charge of felony assault against a family

member by impeding the normal breathing or circulation of the blood by applying pressure

to the throat or neck with his hand or hands. The jury’s verdict shows Appellant was not

harmed by the trial court’s exclusion of the investigator’s testimony as that testimony was

intended to refute the strangulation allegation which was ultimately rejected by the jury


                                              8
without that testimony. Because nothing in the investigator’s testimony would have

negated any element of the offense for which Appellant was convicted, therefore,

Appellant suffered no harm. Accordingly, we overrule Appellant’s first issue.


      ISSUE TWO—MISTRIAL

      Through his second issue, Appellant argues the trial court erred in denying his

request for a mistrial. His request occurred after the following exchange during direct

examination of Robin:


      State:        Did you and Mr. Work ever marry?

      Robin:        No, ma’am.

      State:        Did you ever move in together?

      Robin:        During my pregnancy, Rupert did live with me.

      State:        And so he moved into your home?

      Robin:        Yes, ma’am.

      State:        How long did he live with you?

      Robin:        Six months after I had my child.

      State:        That’s when he moved out?

      Robin:        That’s when he moved out.

      State:        Okay. So just to clarify, he moved in while you were pregnant,
                    stayed there until you had [your child], and then [your child]
                    got to about six months --

      Robin:        And there was another altercation prior –

      Defense:      Judge, I’m going to object.

      Robin:        -- and that’s when it was --

      The Court:    I’ll sustain the objection. Listen to the question and just answer
                    the question, please.


                                             9
       Defense:       And, Judge, I’d ask to have any remarks disregarded -- if you
                      can have the jury disregard –

       The Court:     Any remarks made to the last question that weren’t in direct
                      response to that question, please disregard, ladies and
                      gentlemen of the jury.

       Defense:       I’d ask for a mistrial, Judge.

       The Court:     That’s denied.


       We review denial of a motion for mistrial under an abuse of discretion standard.

Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999) (citation omitted). A mistrial is

“a device used to halt trial proceedings when error is so prejudicial that expenditure of

further time and expense would be wasteful and futile.” Id. The determination of whether

a given error necessitates a mistrial must be made by examining the particular facts of

the case. Id. (citation omitted). Furthermore, on appeal, we generally presume the jury

follows the trial court’s instructions, including an instruction to disregard, in the manner

presented. See Casanova v. State, 383 S.W.3d 530, 543 & n.56 (Tex. Crim. App. 2012)

(citing Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005)); Colburn v. State, 966

S.W.2d 511, 520 (Tex. Crim. App. 1998) (both noting general presumption). While the

presumption is refutable, an appellant must be able to point to evidence contained in the

record to prove that the jury failed to follow the trial court's instruction. Thrift, 176 S.W.3d

at 224.


       In most cases, a prompt instruction to disregard will cure a witness’s inadvertent

reference to an extraneous offense. Wilson v. State, 90 S.W.3d 391, 395 (Tex. App.—

Dallas 2002, no pet.) (citing Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000)).

Unless the extraneous offense is so calculated to inflame the minds of a jury or is of such


                                              10
a nature as to suggest the impossibility of withdrawing the impression produced, an

instruction to disregard can cure any improper impression. Id. (citing Kemp v. State, 846

S.W.2d 289, 308 (Tex. Crim. App. 1992)).


       The State argues that Robin’s reference to “another altercation” was not evidence

of an extraneous offense. It was vague and could just as easily have been a reference

to a verbal altercation. Furthermore, Robin did not identify Appellant as a person involved

in that altercation. However, because that inference could be made, the State asserts

that the trial court promptly and properly instructed the jury to disregard her remarks and

this instruction cured any improper impression or effect of Robin’s innocuous reference

to an altercation. Furthermore, the State contends her reference was not so calculated

to inflame the minds of the jury, nor was it of such a nature that it would suggest the

impossibility of withdrawing the impression produced. Wilson, 90 S.W.3d at 395. We

agree with the State and find the trial court did not err by denying Appellant’s request for

a mistrial. Accordingly, we overrule Appellant’s second issue.


       CONCLUSION

       We affirm the judgment of the trial court.




                                                    Patrick A. Pirtle
                                                         Justice


Do not publish.




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