Freddie Lee Jamerson v. The State of Texas

Houston, Texas - Criminal defense attorney represented Freddie Lee Jamerson with a Assault charge.

On December 15, 2018, Jamerson was staying with Hyson at a motel in Fort

Worth, Texas. That evening, Hyson decided to separate from Jamerson due to a

history of violence in their two-year relationship. She attempted to leave the motel

room. But as she opened the door, Jamerson leaped ahead of her, slammed the door

shut, pressed her against an interior wall, placed his hands on her neck, and began to

1 See TEX. PENAL CODE § 22.01(b)(2)(B); TEX. FAM. CODE §§ 71.003, 71.005.

2 Pursuant to its docket-equalization authority, the Supreme Court of Texas

transferred this appeal to this Court. See Misc. Docket No. 19-9091 (Tex. Oct. 1,

2019); see also TEX. GOV'T CODE § 73.001 (authorizing transfer of cases). We

researched relevant case law and did not locate any conflict between the precedent

of the Court of Appeals for the Second District and that of this Court on any relevant

issue. See TEX. R. APP. P. 41.3.3

strangle her. He then wrestled her to the bed, where he continued to strangle her.

Hyson struggled to breathe and became lightheaded. She believed Jamerson was

going to kill her.

A woman in the adjacent motel room heard the struggle and knocked on the

door to Jamerson and Hyson's motel room, creating an opportunity for Hyson to flee

to her car and cal1 911.3 Emergency personnel were dispatched to the motel, but

Jamerson left the scene before police arrived. Hyson declined an ambulance because

she was able to breathe and felt safe with emergency personnel present.

4

Officer J. Perez, a Fort Worth Police Department patrol officer, interviewed

Hyson at the motel. She told him that Jamerson had strangled her and that this was

not the first violent incident between them. Even though he did not observe any

visible injury on Hyson's neck, Officer Perez photographed Hyson as part of his

investigation. The lack of a visible neck injury did not indicate to him that an assault

had not occurred. He observed other signs of strangulation—Hyson had a "raspy”

voice and gagged and coughed when she spoke.

Jamerson was charged with family violence assault in connection with the

December 15 motel-room assault. At trial, Hyson testified that Jamerson had

3 The record suggests that Jamerson also may have called 911 or, as Hyson testified,

took the phone after she placed the call and spoke with the 911 operator.

4 After the police had gone, Jamerson returned to the motel. Hyson did not call the

police upon his return because she felt it was an "embarrassing cycle.” 4

threatened more than once to kill her if she left the relationship, and she described

multiple other incidents of physical violence at Jamerson's hands.

5 Four of these

were prior incidents of violence, occurring before the December 15 motel-room

assault. She described an incident early in the relationship when Jamerson slapped

her after they purchased some curtains for their home. More "extreme” violence

occurred next. After she returned from visiting family out of town, Jamerson first

threw her against a wall, causing the back of her head to strike and break the drywall,

and then threw her to the ground and "started to choke [her].” Hyson lost her voice

for at least three days and suffered a bloody lip and eye following that incident. On

another occasion, Jamerson struck Hyson in the head. And in November 2018—the

month before the motel-room incident—Jamerson struck Hyson in the face with a

cell phone, causing her face to swell.

6 Hyson said she thought about leaving

Jamerson more than once, but she stayed because he expressed remorse and she

wanted the relationship to work.

In addition to these prior incidents of physical violence, Hyson testified about

a subsequent incident that occurred three days after the December 15 motel-room

5 The State gave notice of its intent to offer evidence of these additional incidents—

and more than 15 other arrests or convictions for various offenses—during its

case-in-chief. TEX. R. EVID. 404(b)(2).

6 Hyson's testimony suggests that she obtained a restraining order against Jamerson

at some point in the relationship. The record does not reveal the effective date(s) of

any prior restraining order. 5

assault. On December 18, Jamerson approached Hyson outside the house where she

stayed after leaving the relationship. She noticed he was "drunk,” upset, and had a

knife. She testified that, during an ensuing struggle, Jamerson threatened to kill her

and tried to injure her with the knife. Again, the police were called. Jamerson used

the knife to slash the tires on Hyson's car before the police arrived.

Officer M. Marquez was one of the patrol officers who responded to the

December 18 incident, which he described as a domestic-violence call involving a

weapon. When Officer Marquez arrived, he saw a man whom he identified in court

as Jamerson drop an item along a retaining wall. Officer Marquez recovered the

item—a black pocketknife. Jamerson admitted to Officer Marquez that he had cut

the tires on Hyson's car, though he claimed the car belonged to him.

Lacy Hensley, a social worker, testified for the State as an expert "in the

dynamics of domestic violence with specialized training in strangulation.”

According to Hensley, only half of people who experience strangulation have visible

injuries. An occurrence of strangulation places domestic-violence victims in an

especially high-risk category. She explained, "Odds for homicide increase 750

percent for [domestic-violence] victims who have previously been strangled

compared to victims who have never been strangled.” The most dangerous time in a

relationship in which domestic violence occurs is when the victim leaves—"the 6

abuser is losing power and control” and, as a result, tends to become more violent in

order to "maintain control in that relationship and prevent the victim from leaving.”

Hensley testified that the "cycle of violence” commonly has three phases.

First is the "tension-building” phase, which she described as a time during which the

"victim [walks] on eggshells” because her partner is easily agitated and she is

uncertain what will "set [her] partner off.” In the second phase, a physically or

verbally abusive event occurs. The final phase is the "honeymoon” phase, when the

perpetrator of the violence may promise to change and the victim may feel hopeful

that things will improve. Hensley explained that it is common for people in this cycle

to stay in the relationship where the violence occurred—sometimes because the

person experiencing the violence fears that ending the relationship will provoke the

perpetrator to commit deadly violence against her. She opined that a person

experiencing domestic violence, on average, attempts to leave the relationship at

least seven times before leaving it for good.

Standard of Review

We review the trial court's ruling on the admission of evidence for an abuse

of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Walker

v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism'd). A

trial court abuses its discretion if it acts arbitrarily, unreasonably, or without

reference to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 7

(Tex. Crim. App. 1990). We will uphold an evidentiary ruling unless it falls outside

the "zone of reasonable disagreement.” Tillman, 354 S.W.3d at 435.

Generally, the erroneous admission of evidence is non-constitutional error,

subject to a harm analysis. Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App.

2010); Robinson v. State, 236 S.W.3d 260, 269 (Tex. App.—Houston [1st Dist.]

2007, pet. ref'd). Non-constitutional error requires reversal only if it affects the

defendant's substantial rights. See TEX. R. APP. P. 44.2(b); Barshaw v. State, 342

S.W.3d 91, 93–94 (Tex. Crim. App. 2011). The defendant's substantial rights are

affected "when the error had a substantial and injurious effect or influence in

determining the jury's verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.

1997). We will not overturn a criminal conviction for non-constitutional error if we

have fair assurance that the error did not influence the jury or had but a slight effect.

Barshaw, 342 S.W.3d at 93.

Extraneous-Offense Evidence

In his sole issue on appeal, Jamerson contends the trial court erred by allowing

the State to elicit testimony recounting the December 18 incident and by admitting

the pocketknife recovered by Officer Marquez into the evidence.

7 Specifically,

7

Jamerson frames this issue as whether the trial court abused its discretion "by

admitting into evidence . . . a knife that was in [his] possession at the time of his

arrest” following the December 18 incident. Reading Jamerson's appellate brief

liberally, however, we understand his complaint to include a broader challenge not 8

Jamerson argues that the challenged testimony and evidence was prohibited

extraneous-offense evidence under Texas Rule of Evidence 404(b).

Relying on article 38.371 of the Code of Criminal Procedure, the trial court

found the testimony regarding the December 18 incident and the pocketknife were

admissible to illustrate the nature of Jamerson and Hyson's relationship. Article

38.371 provides that for certain family violence offenses, including the one for

which Jamerson was convicted, evidence of the relationship between the victim and

the accused is admissible so long as it is not evidence that is otherwise prohibited by

the Texas Rules of Evidence:

(b) In the prosecution of an offense described by Subsection (a), subject

to the Texas Rules of Evidence or other applicable law, each party may

offer testimony or other 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.

(c) This article does not permit the presentation of character evidence

that would otherwise be inadmissible under the Texas Rules of

Evidence or other applicable law.

just to the admissibility of the pocketknife but also to the testimony recounting the

December 18 incident.

To the extent Jamerson's brief can also be read to challenge the admissibility of

Hyson's testimony on the physical violence that occurred before the charged

offense, that complaint has been waived because there was no objection to that

testimony at trial. See TEX. R. APP. P. 33.1(a) (to preserve a complaint for appeal,

appellant must object in trial court and obtain trial court's ruling on the objection).

Jamerson's counsel acknowledged that prior incidents of violence would be

admissible under article 38.371 of the Code of Criminal Procedure. TEX. CODE

CRIM. PROC. art. 38.371.9

TEX. CODE CRIM. PROC. art. 38.371; see Foster v. State, No. 01-17-00537-CR, 2018

WL 1914871, at *3 (Tex. App.—Houston [1st Dist.] Apr. 24, 2018, pet. ref'd) (mem.

op., not designated for publication) (article 38.371(c) does not permit presentation

of character evidence that otherwise would be inadmissible under Texas Rules of

Evidence); Gonzalez v. State, 541 S.W.3d 306, 312 (Tex. App.—Houston [14th

Dist.] 2017, no pet.) (same). The question is thus whether the trial court's rulings

violated Rule 404(b), as incorporated by subsection (c) of article 38.371.

Rule 404(b) generally excludes evidence of other crimes, wrongs, or acts

offered for the purpose of proving that a defendant committed the charged offense

in conformity with his own bad character. TEX. R. EVID. 404(b)(1); Devoe v. State,

354 S.W.3d 457, 469 (Tex. Crim. App. 2011). There are exceptions. See TEX. R.

EVID. 404(b)(2). Although evidence of other crimes, wrongs, or acts may show

character conformity, extraneous-offense evidence that has relevance may be

admissible for other purposes. Id.; Montgomery v. State, 810 S.W.2d 372, 387–88

(Tex. Crim. App. 1990) (op. on reh'g). Permissible purposes listed in Rule 404(b)

include motive, opportunity, intent, preparation, plan, knowledge, identity, absence

of mistake, or lack of accident. TEX. R. EVID. 404(b)(2). But "this list is not

exhaustive.” Garcia v. State, 201 S.W.3d 695, 703 (Tex. Crim. App. 2006).

The State contends the challenged evidence of the December 18 incident was

admissible for two non-character-conformity purposes: (1) to contextualize the 10

nature of Jamerson and Hyson's relationship, and (2) to rebut Jamerson's defensive

theory that Hyson fabricated the motel-room strangulation. As support for its

contentions, the State relies primarily on two decisions from our sister court in Fort

Worth, the court from which this appeal was transferred, and our sister court in

Austin. See Williams v. State, No. 02-18-00382-CR, 2019 WL 2223214, at *2 (Tex.

App.—Fort Worth May 23, 2019, no pet.) (mem. op., not designated for

publication); Tran v. State, No. 03-17-00155-CR, 2018 WL 3118464, at *1 (Tex.

App.—Austin June 26, 2018, pet. ref'd) (mem. op., not designated for publication).

In Williams, the defendant appealed his conviction for causing bodily injury

to his mother, contending the trial court erred by allowing the State to elicit the

mother's testimony about the defendant having previously assaulted her. 2019 WL

2223214, at *1. At trial, the mother expressed embarrassment over the assaults and

stated that she would not have testified against the defendant had the State not

subpoenaed her to do so. Id. at *2. The appellate court determined that it was "well

within the zone of reasonable disagreement for the trial court to have found . . . that

the disputed evidence was admissible for a non-character-conformity purpose.” Id.

at *3. Specifically, the trial court could have reasonably concluded that the evidence

of the defendant's past assaultive behavior toward the mother was necessary for the

jury to understand why she did not want to testify at trial, as well as the nature of her 11

relationship with the defendant and the defendant's motivation for assaulting her

again. Id.

The defendant in Tran, like Jamerson here, was found guilty of assaulting his

wife by strangulation. 2018 WL 3118464, at *1. On appeal, he argued that evidence

of a prior arrest for family violence against his wife was inadmissible

extraneous-offense evidence under Rule 404(b). Id. at *2. The appellate court

disagreed, noting there were multiple permissible purposes for admitting the

evidence of the prior arrest. Id. at *3. The evidence suggested that the assault for

which the defendant was on trial was not an accident or mistake. Id. In addition,

because the wife refused to comply with a subpoena instructing her to appear and

testify, the evidence of the prior assault could suggest to the jury that she failed to

appear because she was in fear or had been manipulated by the defendant, not

because the defendant did not commit the assault. Id. Finally, the evidence was

admissible to rebut the defense's theory that the defendant had assaulted his wife in

self-defense or mutual combat. Id.

Beyond these two cases, we recognize a significant body of case law

recognizing the special dynamics in family violence cases and the need for this type

of evidence. See, e.g., Nash v. State, Nos. 02-17-00236-CR, 02-17-00237-CR, 2018

WL 4495440, at *6 (Tex. App.—Fort Worth Sept. 20, 2018, pet. ref'd) (mem. op.,

not designated for publication) (evidence of defendant's prior violence and 12

relationship with victim was relevant to explain why victim'strial testimony differed

from her statements to police and nurse examiner and was admissible as more than

mere character-conformity evidence); Espinoza v. State, No. 05-17-00547-CR, 2018

WL 6716619, at *6 (Tex. App.—Dallas Dec. 21, 2018, no pet.) (mem. op., not

designated for publication) ("[T]he nature of the victim's relationship with

[defendant] and, additionally, [defendant]'s statements that he repeatedly assaulted

her in the days prior to the offense were relevant to explain her apparent

unwillingness to cooperate with law enforcement and the prosecution.”); Gonzalez,

541 S.W.3d at 312–13 (defendant's prior conviction for assaulting same complainant

was admissible to rebut defensive theory of fabrication and given complainant's

reluctance to testify and recantation); McCleery v. State, No. 03-17-00154-CR, 2017

WL 4766722, at *6 (Tex. App.—Austin Oct. 20, 2017, no pet.) (mem. op., not

designated for publication) (photographic evidence of injuries sustained in a prior

assault was admissible for non-character-conformity purpose of rebutting defensive

theory of fabrication and providing context for complainant's failure to report for

more than one month).

The record in this case is distinguishable from these cases in some respects.

For instance, unlike the complainants in Williams and Tran, Hyson did not refuse to

cooperate with law enforcement or the prosecution. At trial, she was firm in her

desire to testify against Jamerson, and she did not recant her allegations against him.13

But that distinction does not place the trial court's decision to admit the challenged

evidence for a non-character-conformity purpose outside the zone of reasonable

disagreement.

During opening statements, Jamerson's counsel reminded the jury that the

charged offense was impeding Hyson's breath or circulation, and he predicted the

evidence would show "there were no visible injuries, no scratching, no bruising, no

any sort of redness around [Hyson's] neck.” This opening statement may be

reasonably understood as calling into question whether Hyson had fabricated the

allegation of strangulation. The defense emphasized its theory through

cross-examination of multiple witnesses on the lack of visible injury to Hyson.

The State rebutted the defensive theory with testimony from Officer Perez and

Hensley that a lack of visible injury did not, in their view, disprove the occurrence

of strangulation. It is at least within the zone of reasonable disagreement that the

testimony recounting the December 18 assault and the pocketknife recovered by

Officer Marquez were admissible for the same non-character-conformity purpose of

showing that Hyson's allegation of a strangulation three days before was less likely

to be fabricated, particularly given Hensley's testimony that an occurrence of

strangulation (as Hyson alleged took place in the December 15 motel-room assault)

increases the odds of further, potentially more deadly, violence in a relationship (as

Hyson alleged took place in the December 18 assault involving the pocketknife). 14

The challenged evidence thus has some logical relevance aside from character

conformity because it rebuts to some extent the defensive claim of fabrication. See

Bass v. State, 270 S.W.3d 557, 562–63 (Tex. Crim. App. 2008) (case law supports

decision that defensive theory presented in opening argument may open door to

admission of extraneous-offense evidence); see also Gonzalez, 541 S.W.3d at 312

(extraneous-offense evidence admissible to rebut defensive theory that assault never

happened); McCleery, 2017 WL 4766722, at *6 (photographic evidence of prior

assault was admissible to rebut defensive theory of fabrication). In addition, the

context supplied by the evidence of the December 18 assault may have aided the

jury in understanding Jamerson and Hyson's relationship as part of the cycle of

violence explained by Hensley.

We are not persuaded that the challenged evidence was inadmissible because

it concerns an act subsequent to the charged offense. Neither article 38.371 nor Rule

404(b) contains any provision limiting their respective applicability to evidence of

prior acts. TEX. CODE CRIM. PROC. art. 38.371; TEX. R. EVID. 404(b); see, e.g.,

Santellan v. State, 939 S.W.2d 155, 168–69 (Tex. Crim. App. 1997) (holding

extraneous conduct subsequent to charged offense was admissible under Rule 404(b)

for non-character-conformity purpose); Fernandez v. State, 597 S.W.3d 546, 565–

66 (Tex. App.—El Paso 2020, pet. ref'd) (holding child's testimony involving other

assaults by defendant against mother, including assaults occurring after charged 15

offense, was admissible for non-character-conformity purpose under article 38.371);

Corley v. State, 987 S.W.2d 615, 620 (Tex. App.—Austin 1999, no pet.) (noting

there is no per se rule as to when extraneous offense is too remote in time to be

admissible).

As we have explained, it was at least within the zone of reasonable

disagreement that the challenged testimony and evidence was relevant to

contextualize the relationship between Jamerson and Hyson and to aid the jury in

determining whether assault by strangulation had occurred. We therefore hold that

the trial court did not abuse its discretion by admitting the challenged

extraneous-offense testimony and evidence.

But even if the trial court had abused its discretion by admitting the challenged

evidence of the December 18 incident, our review of the record as a whole does not

indicate that the error would be reversible. Error pertaining to the admission of

evidence is non-constitutional in nature; thus, it must be disregarded unless it

affected substantial rights of Jamerson. TEX. R. APP. P. 44.2(b); see Motilla v. State,

78 S.W.3d 352, 355 (Tex. Crim. App. 2002) ("[S]ubstantial rights are not affected

by the erroneous admission of evidence if the appellate court, after examining the

record as a whole, has fair assurance that the error did not influence the jury, or had

but a slight effect.”) (quotation omitted). 16

Jamerson does not contend that the challenged evidence of the December 18

incident influenced the jury's verdict on guilt or innocence—the unchallenged

testimony and evidence from that phase of the trial established the elements of

assault family violence, by impeding breath or circulation. See TEX. PENAL CODE

§ 22.01(b)(2)(B). Rather, Jamerson asserts harm is shown by the trial court's

assessment of punishment. Jamerson's sentence is within the punishment range for

the charged offense, as increased by the enhancement to the habitual offender range

of 25 to 99 years or life. See TEX. PENAL CODE § 12.42(d). Jamerson pleaded true to

the allegations in the habitual offender notice. And at sentencing, the trial court was

permitted to consider a wide scope of evidence, including evidence of other crimes,

wrongs, or bad acts. TEX. CODE CRIM. PROC. art. 37.07, § 3(a)(1) (relevant evidence

at sentencing includes "the prior criminal record of the defendant, his general

reputation, his character, an opinion regarding his character, the circumstances of

the offense for which he is being tried, and, notwithstanding Rules 404 and 405 of

the Texas Rules of Evidence, any other evidence of an extraneous crime or bad act

that is shown beyond a reasonable doubt by evidence to have been committed by the

defendant”); see Payne v. Tennessee, 501 U.S. 808, 820–21 (1991) (sentencing

authority "has always been free to consider a wide range of relevant material”).

Even without regard to the December 18 incident, the evidence of other

crimes, wrongs, or bad acts which the trial court could consider in assessing 17

punishment was significant. The State presented, without objection, evidence of at

least four additional incidents of violence perpetrated by Jamerson against Hyson,

including one prior instance involving strangulation. Considering the record as a

whole, we have a fair assurance that the evidence of the December 18 incident had

but a slight effect on the trial court's assessment of punishment. See King, 953

S.W.2d at 273 (complained-of evidence has little to no effect on appellant's

substantial rights when it is insignificant or pales in comparison to other, properly

admitted evidence).

We overrule Jamerson's sole issue on appeal.

We affirm the judgment of the trial court.