Ervin Edward Kingsbury, III aka Irving Edward Kingsbury, III v. The State of Texas

Fort Worth, Texas - Criminal defense attorney represented Ervin Edward Kingsbury, III aka Irving Edward Kingsbury, III with a Aggravated Assault charge.

testified that Appellant Ervin Edward Kingsbury III, also known as

Irving Edward Kingsbury III, had threatened to kill her while he held a knife in each

of his hands—and that he had jabbed at her with one of the knives—during a

domestic dispute that arose after he had been drinking alcohol. Abigail, who was

pregnant at the time, called 911, as she had on other occasions, and Fort Worth Police

Officer Joseph Davis, one of the officers who responded to the 911 call, testified that

he spoke at the scene with Abigail and Kingsbury's father, with whom Abigail and

Kingsbury lived. After speaking to Abigail and Kingsbury's father and viewing the

knives,2 Officer Davis arrested Kingsbury.

Abigail and Officer Davis testified at trial, and after a Rule 705 hearing, the trial

court overruled Kingsbury's objections to SafeHaven CEO Kathryn Jacob's

testimony about family violence relationship dynamics. See Tex. R. Evid. 705. A jury

found Kingsbury guilty of aggravated assault with a deadly weapon and found that he

had committed it against Abigail, a member of his household or a person with whom

he had a dating relationship (family violence). See Tex. Penal Code Ann. § 22.02(a)(2)

(stating that a person commits aggravated assault if he commits assault and uses or

1We use a pseudonym to protect the complainant's privacy.

2Officer Davis said that the knives were "considerably larger than paring

knives” and that he had "seen homicides committed with knives smaller than that.”3

exhibits a deadly weapon during its commission); Tex. Fam. Code Ann. § 71.0021

(defining dating violence).

Kingsbury's prior judgments of conviction were admitted into evidence during

the punishment phase of trial. Two judgments, entered at the same time, showed

probation revocation from his having committed another offense, but information

about the new offense was redacted. The trial court overruled Kingsbury's complaint

that all information about the new offense should be redacted to avoid the jury's

speculation about the nature of the redacted offense. The jury assessed Kingsbury's

punishment at 55 years' confinement.

3

In three issues, Kingsburg argues that the trial court erred by admitting the two

redacted copies of judgments into evidence, allowing the prosecutor to make an

improper jury argument with regard to Kingsbury's father's statements,

4

and allowing

the prosecutor to present scientifically unreliable and irrelevant expert testimony

through Jacob, who he complains was unqualified. We affirm.

3Aggravated assault is a second-degree felony, see Tex. Penal Code Ann.

§ 22.02(b), but the punishment range may increase based on prior convictions.

Kingsbury's indictment alleged that he was a habitual offender, and the jury found

that the prior felony offense allegations were true. Compare id. § 12.33 (stating that

second-degree felony punishment range is 2 to 20 years and up to a $10,000 fine), with

id. § 12.42(d) (providing for punishment range of 25–99 years or life if, on trial of a

non-state-jail felony, it is shown that the defendant has previously been finally

convicted of two felony offenses and the second previous felony conviction is for an

offense that occurred subsequent to the first felony conviction's having become final).

4Kingsbury's father had dementia and was unavailable to testify.4

II. Expert Testimony

In his second issue,5 Kingsbury contends that the trial court abused its

discretion by allowing the State to present Jacob's expert testimony. Under the abuseof-discretion standard of review, we will uphold the trial court's decision as long as it

was within the "zone of reasonable disagreement.” Beham v. State, 559 S.W.3d 474,

478 (Tex. Crim. App. 2018).

A. Admissibility of Expert Testimony

Rule of Evidence 702 governs the admissibility of expert testimony. Tex. R.

Evid. 702. That rule allows a witness who is "qualified as an expert by knowledge,

skill, experience, training or education” to "testify in the form of an opinion or

otherwise if [her] scientific, technical, or other specialized knowledge will help the

trier of fact to understand the evidence or to determine a fact in issue.” Id. Under

Rule 702, three conditions must be met before expert testimony is admissible: (1) the

expert must be qualified; (2) the evidence must be reliable; and (3) the evidence must

be relevant. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019).

1. Qualification

Qualification is evaluated by a review of the expert's training and experience.

Id. at 672 n.1. The specialized knowledge that qualifies a witness to offer an expert

opinion may be derived from specialized education, practical experience, a study of

5We begin our review of Kingsbury's appeal with his most complex issue.5

technical works, or a combination of these things. Id. at 669. The expert's

background must be tailored to the specific area of expertise in which she desires to

testify, and the proponent of the expert's testimony has the burden to show that the

witness is qualified on the matter in question. Id. If a witness has a sufficient

background in a particular field, then the trial court must then determine whether that

background goes to the very matter on which the witness is to give an opinion. Id.

To determine whether a trial court has abused its discretion in ruling on an

expert's qualifications, we may consider three questions: (1) Is the field of expertise

complex? (2) How conclusive is the expert's opinion? and (3) How central is the area

of expertise to the lawsuit's resolution? Id. at 669–70. An expert does not need to use

scientific methods to be qualified, and there is no requirement that the expert's

specialized knowledge, training, or experience be based on scientific principles. Id. at

670. That is, with regard to qualifications, there is no litmus test, no particular license

or degree that an expert must possess to qualify. Brown v. State, No. 02-19-00238-CR,

2020 WL 6929846, at *3 (Tex. App.—Fort Worth Nov. 25, 2020, no pet.) (mem. op.,

not designated for publication).

2. Reliability

If the expert is qualified, we consider whether her testimony is reliable by

looking at the method she uses to come to her conclusions. Rhomer, 569 S.W.3d at

672 n.1. 6

With regard to reliability, Kingsbury refers us to Kelly v. State, 824 S.W.2d 568,

573 (Tex. Crim. App. 1992). Under Kelly, for evidence derived from a "hard” science

theory to be considered reliable, the underlying scientific theory must be valid; the

technique applying the theory must be valid; and the technique must have been

properly applied on the occasion in question. Id. Facts that could affect the trial

court's determination of reliability include the extent to which the underlying scientific

theory and technique are accepted as valid by the relevant scientific community; the

qualifications of the expert testifying; the existence of literature supporting or

rejecting the underlying scientific theory and technique; the potential rate of error of

the technique; the availability of other experts to test and evaluate the technique; the

clarity with which the underlying scientific theory and technique can be explained to

the court; and the experience and skill of the person who applied the technique on the

occasion in question. Id.

In 1998, the Court of Criminal Appeals acknowledged that, depending on

context, the specific "hard” science factors in Kelly would not necessarily apply in

reviewing the admissibility of "soft” science testimony or would apply with less rigor.

Nenno v. State, 970 S.W.2d 549, 560–61 (Tex. Crim. App. 1998), overruled on other grounds

by State v. Terrazas, 4 S.W.3d 720, 727 (Tex. Crim. App. 1999). "Soft” science

describes the social sciences or fields that are based primarily upon experience and

training as opposed to the scientific method. Id. at 561; see also Wright v. State, 618

S.W.3d 887, 891 & n.1 (Tex. App.—Fort Worth Feb. 4, 2021, no pet.) (noting that7

soft sciences consist of areas involving technical or other specialized knowledge and

listing as examples psychology, sociology, and criminology); Gutierrez v. State, No. 02-

17-00415-CR, 2019 WL 1388748, at *4 (Tex. App.—Fort Worth Mar. 28, 2019, no

pet.) (mem. op., not designated for publication) (stating that an expert may compare

general or classical behavioral characteristics of a certain type of victim with a specific

victim's behavior pattern). To establish the reliability of an expert witness with regard

to a "soft” science, the proponent must show that the expert's field of expertise is a

legitimate one; that the subject matter of the expert's testimony is within the scope of

such field; and that the expert's testimony properly relies upon or utilizes the

principles involved in the field. Rhomer, 569 S.W.3d at 671.

3. Relevance

Finally, to establish relevance—a looser notion than reliability—the expert's

testimony must assist the trier of fact and be sufficiently tied to the case's facts.

Tillman v. State, 354 S.W.3d 425, 438 (Tex. Crim. App. 2011) (explaining that expert

testimony regarding principles and theories must "fit” to the facts of the case). Even

when the general subject matter is within the average juror's comprehension, a trial

court need not exclude expert testimony so long as the witness has some specialized

knowledge on the topic that will "assist” the jury. Id. at 441 (citing Coble v. State, 330

S.W.3d 253, 288 (Tex. Crim. App. 2010)). In other words, the question under Rule

702 is not whether the jurors know something about the subject but whether the

expert can expand their understanding in a relevant way. Id. Rule 702 only requires 8

that expert testimony meet the simple requirement of being "helpful” to the jury on

an issue in dispute, by either validating or calling into question the jurors' own

inclinations, including prompting the jurors to reconsider their preconceived notions.

Jordan v. State, 928 S.W.2d 550, 556 (Tex. Crim. App. 1996). And the relevance, or

"fit,” of the expert's testimony about principles and theories can be addressed by the

expert's discussion of hypotheticals mirroring the case's facts. Tillman, 354 S.W.3d at

441.

B. Domestic Violence

Under certain circumstances, Texas courts have found expert testimony about

the dynamics of domestic violence to be admissible under Rule 702. Brewer v. State,

370 S.W.3d 471, 474 (Tex. App.—Amarillo 2012, no pet.); see Nwaiwu v. State, No. 02-

17-00053-CR, 2018 WL 3763899, at *4 (Tex. App.—Fort Worth Aug. 9, 2018, pet.

ref'd) (mem. op., not designated for publication) (noting that expert testimony about

the effect of domestic violence on victims and the abuser-victim relationship

dynamics has generally been held admissible for various reasons).

For example, when a domestic violence victim later recants that the assault

occurred, a trial court does not abuse its discretion by allowing the State's domestic

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

of victims of such violence. See Nwaiwu, 2018 WL 3763899, at *1, *4. In Nwaiwu,

unrelated bystanders saw the appellant physically assault his girlfriend in public. Id. at

*1. At trial, the girlfriend both denied that the assault had occurred and said that it 9

had been a mutual struggle. Id. The State called a licensed marriage and family

therapist who worked with domestic violence victims to explain concepts such as the

cycle of violence, the power-and-control wheel, minimization, denial, and assessment

of lethality. Id. at *2.

On appeal, the appellant argued that the trial court had abused its discretion

because the expert's testimony was irrelevant when there was no evidence that the

couple had a history of domestic violence, the expert had no personal knowledge of

the parties' relationship, and the girlfriend had testified that no assault had occurred.

Id. at *3. The State replied that the testimony was reliable based on the expert's

qualifications and relevant because although the girlfriend had told police who

responded at the scene that the appellant had assaulted her, she had testified that he

had not. Id.

We observed that because the average juror would not typically be familiar with

the effect of domestic violence on victims and the dynamics of the abuser-victim

relationship, 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 to live with a family member after an alleged assault. Id. at *3. We noted

that multiple courts had held there was no abuse of discretion when an expert was

allowed to testify about the cycle of violence in trials in which the victim testified on

the defendant's behalf or recanted an earlier claim of abuse and that such testimony 10

was relevant to explain why a victim would change her story about an abusive incident

and why she might testify on the alleged abuser's behalf. Id. at *3–4.

We also noted generally that no abuse of discretion occurs when an expert

witness is allowed to testify about domestic violence in general and the typical

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

defendant and victim. Id. at *3; see Scugoza v. State, 949 S.W.2d 360, 363 (Tex. App.—

San Antonio 1997, no pet.); see also Fielder v. State, 756 S.W.2d 309, 321 (Tex. Crim.

App. 1988) ("To the extent that the expert could explain the endurance of the

hypothetical woman in a way that the jury could infer it is consistent with a claim of

fear of the abuser, that testimony was of 'appreciable aid' to the trier of fact.”). We

thereby concluded that the trial court had not abused its discretion by allowing the

expert to testify about domestic violence in general and the typical behaviors of

victims of domestic violence because the testimony was relevant and on a topic with

which the average lay person could not be expected to be familiar. Nwaiwu, 2018 WL

3763899, at *4.

We further concluded in Nwaiwu that to the extent the appellant had challenged

the expert's qualifications, the trial court did not abuse its discretion by overruling the

appellant's objection to her qualifications because the record reflected her training and

experience: she had a master's degree in marriage and family therapy, had worked

with approximately 1,500 domestic violence victims over eleven years, had coauthored a family therapy book, had taught university classes on the dynamics of 11

family violence relationships, and had previously testified as a domestic violence

expert. Id. Although Nwaiwu is an unpublished memorandum opinion with no

precedential value, see Tex. R. App. P. 47.2(b), 47.7(a), we expressly adopt the

reasoning therein.

We have also noted that the cycle of violence and power-and-control wheel are

generally accepted principles that domestic violence experts use to explain the abuservictim relationship. Fernandez v. State, No. 02-18-00483-CR, 2020 WL 1057323, at *4

(Tex. App.—Fort Worth Mar. 5, 2020, pet. filed) (mem. op., not designated for

publication); see also Tex. Code Crim. Proc. Ann. art. 38.371(b) (stating that in the

prosecution of a family-violence offense, and subject to the Texas Rules of Evidence,

"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”). Although Fernandez is, like

Nwaiwu, an unpublished memorandum opinion with no precedential value, see Tex. R.

App. P. 47.2(b), 47.7(a), we expressly adopt its reasoning.

C. Trial

1. Testimony before the Rule 705 hearing

a. Abigail's testimony

Abigail testified that she was in court only because she had been ordered to

appear and stated that she no longer considered herself to be in a relationship with 12

Kingsbury. She described their romantic relationship as having begun in February

2015, when she moved into the house that Kingsbury shared with his elderly father.

Abigail said that at the beginning, their relationship "was wonderful” and "everything

[she] wanted,” despite their 30-year age difference. Kingsbury had been selfemployed, and she helped him with his work but did not have her own job. Abigail

then recounted a few episodes that contradicted the idyll she described.

On January 19, 2016, when Abigail was pregnant with her first child with

Kingsbury, she had been at a friend's house when Kingsbury came by "[t]o chill with

[her]” but they ended up arguing when he became intoxicated, and they engaged in a

physical fight over his wallet. Abigail said that she had taken Kingsbury's wallet

"because he wanted to go to the store to get more drinks,”

6

and that he hit her twice

in the face with his fist when she would not relinquish it to him. Abigail said that

when he hit her, she "hit him back with [her] phone in [her] hand, and he started

bleeding.” Abigail said, "When he hit me, I just, pow, hit him -- hit him back.”

7

Kingsbury left on his own before the police arrived. Abigail said that Kingsbury went

to jail on this occasion.

6Abigail described Kingsbury as becoming verbally aggressive and "smartmouthing” when he drank alcohol, but she denied that he often drank during their

relationship.

7Abigail acknowledged her criminal history during her testimony, including a

2012 misdemeanor assault-bodily injury (family violence) conviction, a 2013

misdemeanor theft conviction, and a felony DWI conviction. 13

Kingsbury's May 23, 2016 judgment of conviction for assault causing bodily

injury to a family member (Abigail), a Class A misdemeanor alleged to have occurred

on January 19, 2016, was admitted into evidence during another witness's testimony.

It showed that Kingsbury had pleaded guilty pursuant to a plea bargain in exchange

for 200 days' confinement. The indictment alleged that Kingsbury had hit Abigail and

that prior to committing that assault, Kingsbury had been previously convicted of an

assault-family violence offense on April 11, 2013.

Sometime after August 2016, when the couple's first child was born, Abigail's

mother called the police after Kingsbury pocket-dialed her by accident and she heard

the couple arguing and physically fighting. Abigail did not recall what the argument

had been about but recalled that she had sustained a busted lip "with the meat

hanging,” by which she meant skin was hanging off. Abigail had defended herself by

hitting him back, and again Kingsbury left before the police arrived. Abigail denied

that Kingsbury had started becoming more violent by March 2017, when the instant

offense occurred, testifying that she had only called the police between one and three

times and that a neighbor had called at least once.

Abigail admitted that Kingsbury occasionally showed jealousy about her "going

places” and "[h]anging out with [her] friends.” She recalled one occasion when they

had argued about her leaving, but she said that she did not think that the police were

called on that occasion. Abigail said that he had tried to stop her from leaving once,

but although he had made threats, he had tried nothing physical. She stated, "It ain't 14

much to tell about it. I just got in the truck and I left. That's all I remember of that.

I don't remember nothing else.”

On March 31, 2017, Abigail, Kingsbury, and Kingsbury's father were at home,

and Rosalyn, one of Kingsbury's sisters, had come by to talk to Kingsbury about his

moving out. Abigail said that the topic had upset Kingsbury and that "[h]e wasn't

having it.” She also said that Kingsbury had been drinking alcohol that day.8

Abigail said that Kingsbury had followed Rosalyn outside to her car and that he

was "mostly screaming, yelling” at Rosalyn and then at his father after Rosalyn left.

Abigail said that she had been in the bathroom at the time, fixing her hair. After she

emerged to check on Kingsbury and was on her way back to the bathroom, he yelled

at her, demanding in a loud voice that she shut the window blinds. She refused and

explained to the jury that "[h]e was just upset and wanted to fuss at somebody

because he couldn't fuss at his sister.” Abigail claimed that Kingsbury did not usually

make demands of her.

Abigail testified that as she continued on her way back to the bathroom,

Kingsbury persisted, asking, "So you're not going to shut my blinds?” He then

followed her to the bathroom, where she resumed working on her hair, and he

8Officer Davis described Kingsbury's red, bloodshot eyes and loud, slurred

speech, inability to maintain his balance, and strong odor of alcohol on March 31.

Kingsbury passed out at the scene, and when the police checked on him, they "found

that he was just uncooperative and would have preferred not to answer questions,”

and that although they could wake him, he "would then just go back to sleep.” 15

continued to demand, "So you're not going to do it?” After he walked away, she

heard him rummaging in the kitchen, and when he came back to the bathroom, he

was holding two knives—one in each hand. At that point, he yelled, "Oh, so you're

not going to shut my blinds?” and jabbed at her with a knife. He told her, "B-tch, I'll

kill you.” Abigail said that she believed this threat and became afraid. She managed

to shut the bathroom door.

Abigail said that she had been pregnant with their second child at the time and

that Kingsbury had known that she was pregnant. As soon as he walked away from

the bathroom door, she went into the living room, grabbed the phone, and called 911.

The six-minute 911 call was played for the jury, which heard Abigail report that

Kingsbury had tried to stab her. Abigail did not recall how long it took the police to

arrive or around what time of day the incident occurred. In the parties' kitchen, the

police found several knives and took a photo, which was admitted as State's Exhibit 3.

Abigail identified two of the knives as the ones Kingsbury had used to threaten her.

The defense subsequently recalled Abigail to ask her whether there had been a

pending lawsuit filed by the Texas Department of Family and Protective Services

regarding custody of the child she shared with Kingsbury when she had accused

Kingsbury of assault on March 31, 2017. Abigail agreed that there had been.

b. Officer Davis's testimony

Officer Davis, who became a commissioned police officer in 2016, testified

that he was undergoing the third phase of his field training in March 2017. He16

described Abigail's 911 call as having been a priority one call that involved lights and

sirens because of immediate threat to life or safety. When he and his field training

officer arrived on the scene, two officers had already arrived and detained and

handcuffed Kingsbury, secured the residence, and made sure that no one was injured.

9

Officer Davis's description of what Abigail told the police about the incident at

the scene was similar to her testimony at trial:

Basically, she said that there was a verbal disagreement over something

as mundane as the blinds being open, the defendant telling her that she

needed to go and close the blinds in a way that she took offense to. She

thought that it was disrespectful. So she was in the bathroom. I think

she said she was fixing her hair, and after this interaction began to get

more and more heated, the volume got turned up on the situation, the

defendant grabbed two kitchen knives from the kitchen and told her he

was going to kill her. At which point, she shut the door and called for

police.

Officer Davis described Abigail's demeanor that night as shaky, evidenced by a

quivering voice and visibly trembling hands. According to Officer Davis, she

appeared to be "relieved that the police were there to intervene on the situation.” He

also described the packet used by the police in family-violence investigations, stating,

"The family violence packet is a series of roughly a dozen or so pages. It includes our

findings on scene, whether we saw visible injury. We are able to describe the

demeanor of the suspect if they are still on scene, the demeanor of the victim.” The

9Officer Davis said that in domestic violence situations, which have the

potential for physical violence when "emotions tend to be running so high,”

department protocol was for several officers to be assigned to the call.17

packet also contains an emergency-protective-order application and a series of 23

questions on the first page "that are meant to identify and analyze the level and extent

of violence existing in [a] particular domestic situation” to determine possible

escalation into further or more serious violence.

Officer Davis testified that based on Abigail's responses to the danger

assessment questions, he "felt that there was an imminent need to separate the parties

by arrest.” With regard to a protective order, he stated that "[a]nytime an offense is

considered to be a felony, which would be in this circumstance because of the

exhibition and use of a deadly weapon, [the police] determine that a mandatory

protection order is put into place.” According to Officer Davis, Abigail had been

familiar with the protective order protocol because she had previously filled one out,

and "her conduct was consistent with someone who has been familiar with domestic

violence.”

The police found Kingsbury's father watching television in the back of the

house, and, according to Officer Davis, Kingsbury's father corroborated Abigail's

version of events. But on cross-examination, Officer Davis acknowledged the

possibility that Abigail could have lied and that he had assumed that she was the

victim because the police had "had a female caller on the line that said that she was

trapped in the bathroom.”18

2. Rule 705 Hearing

After Abigail and Officer Davis testified, the State offered Jacob outside the

jury's presence as an expert in the dynamics of family violence, and the trial court held

a Rule 705 hearing.

During the Rule 705 hearing, Jacob testified that she had a bachelor's degree

and a master's degree in social work and was a licensed master social worker.

According to Jacob, she had testified as an expert witness more than 20 times. As

SafeHaven's CEO, she had served on its board of directors and had overseen the

organization's operations, finances, fundraising, and programs, and she had also held

and attended trainings on and made presentations about intimate partner violence.

Jacob had attended the Advanced Strangulation Institute on several occasions and had

attended Family Justice Center conferences and offender program conferences and

trainings. She was a member of the Texas Council on Family Violence, a statewide

advocacy and lobbying group, and had been asked by the National Football League to

be a critical incident advisor. Jacob stated that SafeHaven serves thousands of

domestic violence victims per year.

Jacob testified that she had attended the Duluth training four times and

described the Duluth Model, "an evidence-based model out of Duluth, Minnesota[,]

that's been around since the 1980s” and used in SafeHaven's 27-week "evidencebased curriculum that teaches [domestic violence] offenders to take violence off the

table” and recognizes that violence "is rooted in power and control.” The Duluth 19

Model uses "the Power and Control Wheel,” which "helps identify how power and

control manifest in very specific ways in a relationship” when working with domestic

abuse victims.

10 Jacob said that the State's exhibit containing the power-and-control

wheel would aid the jury in understanding her testimony.

Jacob offered her testimony "to help the jury understand the dynamics of

domestic violence and the Power and Control Wheel and possibly a danger

assessment,” which she testified is a "tool that SafeHaven, along with many other

domestic violence organizations throughout the country, use to measure . . . the

possibility of a victim['s] becoming a victim of a homicide at the hands of [his or her]

intimate partner.” Jacob said that she used the danger assessment, which was created

by Dr. Jacquelyn Campbell at Johns Hopkins University School of Nursing in

Baltimore in the late 1980s, daily as part of the victim intake-and-assessment process.

Jacob stated, "The danger assessment is an evidence-based tool. It's gone through

many years of control and variable groups and throughout the scientific process. It is

widely used in our field,” as well as included in the Tarrant County family violence

packet used by law enforcement entities.

The prosecutor asked Jacob, "If I were to tell you that a victim answered in the

affirmative to No. 3 . . ., No. 4, No. 5, No. 6, No. 7, No. 8, No. 14, No. 15, No. 18,

10Another wheel used by the Duluth Model is the "Equality Wheel,” which

mirrors the power-and-control wheel and shows offenders and victims what a

relationship based in equality might look like. 20

how would you score that on a danger assessment?” Jacob replied, "I believe that

scores a 22, which would put the score in the extreme danger” level when compared

to a relationship of equality, where the score would be zero. She added, "Any score

that's over 18 really encourages the victim to . . . take action and seek help

immediately.” Jacob explained that the victim should answer the questions because

the victim "is an expert in her relationship” and that the danger assessment and the

risk factors that it includes are helpful in understanding the severity of the intimatepartner violence situation.

Jacob described the cycle of violence as a three-stage cycle with a honeymoon

or courtship phase, a tension-building phase, and an incident phase, after which the

cycle begins again. Jacob stated, "Most victims can identify with those three stages of

the cycle. It -- I have to say that is not an evidence-based tool. It is more anecdotal.”

She added that it was anecdotal because during focus groups, victims would describe

the cycle, and it did not result in measurements.

During defense counsel's cross-examination, Jacob acknowledged that she had

never met Abigail or Kingsbury and was not familiar with any of Abigail's accusations.

She stated, "We, at SafeHaven, don't believe that it's our role to investigate domestic

violence crimes. It's our role to provide service. We believe there are other partners

in the system who serve the role as investigator, so that's not something that we do.”

She also clarified that she was not getting paid for her testimony. 21

During the hearing, defense counsel asked the trial court,

[C]ould we perhaps remove some of this from discussion until

punishment, and that would be the danger assessment, the cycle of

violence, the anecdotal evidence, the possibility that a victim will become

a homicide victim if harassment -- of the -- of the -- of the abuser, and

just concentrate on the other things she talked about? Because those

things seem to me to not be relevant for assisting our trier of fact of

whether or not a person is guilty as charged.

When the trial court asked for his specific legal objections, defense counsel replied

that he was relying on Rule 705 with regard to the admissibility of the opinion because

Jacob had admitted that some of it was based on anecdotal evidence and "not the

underlying facts or data that are sufficient basis for the opinion as to whether or not

Mr. Kingsbury committed this crime as opposed to just sort of generic supposed

abusers.” At that point, the trial court reminded defense counsel that because Jacob's

testimony pertained to the "soft sciences here,” the admissibility of her testimony fell

"under a different standard.”

At the conclusion of the hearing, defense counsel reurged the trial court that

Jacob's testimony might help a jury in assessing punishment but not in making a guiltinnocence decision, and he objected based on Rules 702 and 705. Specifically, he

complained,

I don't think she's an expert at all. I think she's a self-created expert in a

business that exists to make money off of being a probation provider of

services that created -- this organization has created its own criteria, it's22

created its own study plan, it's created its own training.[11]

It's chosen

from which model they wish to -- to be trained under.

After a brief recess, in response to the prosecutor's argument that relevance

went to the nature of the relationship between the defendant and victim and how the

victim perceived the incident, the trial judge stated, "Well, I don't know that it shows

how she perceived anything, but if it goes to the nature of their relationship, then I'm

going to let it in.” See Tex. Code Crim. Proc. Ann. art. 38.371(b). The trial court

overruled Kingsbury's objection to Jacob's qualifications and his objection that her

proposed testimony would not assist the trier of fact to understand the evidence or to

determine the fact at issue as to the guilt-innocence phase of trial.

3. Jacob's testimony before the jury

In addition to the facts set out above, Jacob testified to the jury that SafeHaven

was a 24/7 business with a 22-member board12 and a budget of $9 million, and that it

had a "robust prevention program that works in dozens of Tarrant County schools

preventing issues of domestic violence later in life.” She added that becoming a

licensed master social worker required passing a state exam and completing 30 credit

11During the Rule 705 hearing, Jacob stated that SafeHaven facilitates one of

the only accredited programs for offenders in Tarrant County. Jacob said that about

95% of SafeHaven's offender-clients were referred to the program by a court as part

of probation conditions. She agreed that part of the program "is that the offender

pays for the service.”

12During cross-examination, Jacob acknowledged that there were two Tarrant

County district attorneys on the SafeHaven board of directors and that she did not

think that there were any criminal defense attorneys.23

hours of continuing education every two years. And she elaborated on her invitation

to sit as one of the National Football League's critical incident advisors—a group of

four individuals called together to provide outside advice to the NFL when a domestic

violence incident occurs. Jacob said that she had conducted partner-abuse

intervention trainings, she agreed with the prosecutor's characterization that she had

"quite a base of knowledge of domestic violence dynamics,” and she stated that her

expertise was in intimate partner violence.

Jacob explained the three-step cycle of violence and said that the amount of

time to go through the phases could vary from an hour to a year and that the cycle

could occur multiple times in one day. That is, the parties could be back in the

honeymoon phase by the time the police arrived in response to the tension-building

and assault phases. Jacob added, "'Victims call the police when they believe that is

their last option” for safety.

Jacob explained that the power-and-control wheel is used to describe "some of

those characteristics of what an abusive relationship might look like” by SafeHaven

and similar domestic and international organizations. Kingsbury then reurged his

earlier objections to the admission into evidence of State's Exhibit 6, the Duluth

power-and-control wheel. The trial court again overruled those objections. The

exhibit showed the spokes of the wheel—covering emotional, physical, and financial

abuse—which were "Using Intimidation” (including displaying weapons); "Using

Emotional Abuse”; "Using Isolation” (including limiting the victim's outside 24

involvement); "Minimizing, Denying, and Blaming”; "Using Children”; "Using Male

Privilege” (including treating the victim like a servant); "Using Economic Abuse”; and

"Using Coercion and Threats” (which included making or carrying out threats to do

something to hurt the victim).

When asked how pregnancy might play into the power-and-control scenario,

Jacob stated that sometimes giving birth prompted the victim to leave the abusive

relationship to prevent the child from being abused but that other times domestic

violence abusers might use pregnancy to tie the parties together indefinitely as parents

to the same child.

Jacob described Dr. Campbell's danger assessment—most recently revalidated

in 2018—as 20 yes-or-no questions used to develop a score to evaluate four danger

levels. A blank copy of the assessment was admitted into evidence without objection.

Some of the questions were weighted, with an affirmative answer receiving additional

points. The questions with more weight were:

• Does he own a gun? (4 additional points)

• Have you left him after living together during the past year? (3 additional points)

• Is he unemployed? (3 additional points)

• Has he ever used a weapon against you or threatened you with a lethal weapon? (2

additional points)

• Does he threaten to kill you? (2 additional points)25

• Has he avoided being arrested for domestic violence? (2 additional points)

• Do you have a child that is not his? (1 additional point)

• Has he ever forced you to have sex when you did not wish to do so? (1 additional

point)

Jacob said that a score of below 8 was a "variable danger level” and the victim

would be instructed to trust his or her instincts and watch for signs of danger. A

score between 8 and 13 was "increased danger,” under which the victim would be

advised to understand the risk, have a safety plan, and maintain vigilance. A score of

between 14 and 17 was "severe danger” but carried the same instructions as

"increased danger.” A score of 18 or over was "extreme danger,” in which case the

victim would be advised to seek action, criminal justice, other help, shelter, and other

interventions. According to Jacob, the assessment was supposed to be included as

part of the family violence packet when law enforcement investigated a domestic

violence incident.

Jacob said that it was more common than not for a victim to fail to realize the

severity of her situation and said that some victims become so inured to their situation

that they reach a level of apathy. She related that many victims would say, "He told

me he would change.” She had also heard victims express the belief that they were

the cause or trigger of the violence and explained that "[i]t sometimes takes a very

long time for a victim to admit that [she is] a victim.” Jacob acknowledged that while26

alcohol, substance abuse, mental health issues, financial problems, and unemployment

could be catalysts or triggers for violent behavior, the cause of domestic violence is

"power and control, this one person's need and desire to have power and control over

another person.”

At the conclusion of the prosecutor's direct examination of Jacob, Kingsbury

reurged his objections to her testimony and added that she had "exceeded the scope

of admissible evidence.” The trial court replied, "Same ruling.”

During cross-examination, Jacob agreed that Dr. Campbell, who had developed

the danger assessment, was not a licensed professional counselor or social worker but

rather a registered nurse and doctor of philosophy. When asked whether the danger

assessment had a margin of error for false statements, Jacob replied that she had "not

been involved in the research studies . . . to verify the tool” but that they had "gone

through control and variable groups and ha[d] been published in several academic

journals and journals” in her area of work. She agreed that a victim could lie but

admitted that she did not know if the assessment took that possibility into account.

Jacob said that the power-and-control wheel had probably been included each

time she had testified over the prior four and a half years and that since its first

publication in the 1980s, the economic abuse section had been revised. She agreed

that although the power-and-control wheel used the female pronoun to refer to the

victim, an abuse victim could be male. When challenged about that and her reference

to individual victims as "she,” Jacob replied, 27

[I]n 2010, the Center for Disease Control conducted a prevalence study

throughout the United States. That prevalence study showed that the

averages among Americans is 1 in 4 women will be affected by domestic

violence in her lifetime, 1 in 7 men will be affected by domestic violence

in his lifetime. As a response to that, the Texas Council on Family

Violence, with other statewide partners, conducted a prevalence study in

Texas. The numbers were a little bit different on the female side. The

numbers were 1 in 3 women.[13]

D. Application

Kingsbury argues that Jacob was unqualified to deliver her testimony and that

her testimony was scientifically unreliable and irrelevant. The State responds that

Jacob was qualified based on her background and experience, that her testimony was

reliable because she described the origin of the various teaching and assessment tools

and testified that such tools were used throughout the domestic violence field, and

that her testimony was relevant because it was directly tied to the case's facts based on

the victim's account of her relationship.

1. Qualification

With regard to Jacob's qualifications, Kingsbury argues, "It is error for a trial

court to permit social workers to offer expert opinions on psychological issues,” and

refers us to Perez v. State, 25 S.W.3d 830, 832, 836, 838 (Tex. App.—Houston [1st

Dist.] 2000, no pet.). In that case, the appellant was charged with aggravated sexual

assault of a child, and in the State's rebuttal during the guilt-innocence phase of trial,

13Jacob agreed that those numbers were not reflected in the exhibit, that she

was not present when the offense occurred in this case, that she had never met the

parties, and that she did not know if there was a victim in the case.28

the State called as an expert the director of a nonprofit organization that worked with

governmental agencies to evaluate child abuse cases. Id. at 831–32. She was allowed

to testify about the five stages of "child abuse accommodation syndrome” and to

interpret the theories of the pediatric psychiatrist who had identified the syndrome.

Id.

On appeal, the appellant argued that there had been no scientific basis for the

witness's testimony and that the State had failed to demonstrate her qualifications to

testify. Id. The witness in question had degrees in criminal justice and sociology and

was a master social worker, and she had testified that her conclusions were based in

part on, and corroborated by, her study of the writings of a pediatric psychiatrist who

had published in various professional journals. Id. at 832. She also acknowledged that

the pediatric psychiatrist in question had agreed that it was not science but rather his

opinion regarding similar characteristics shared by children who had been sexually

abused. Id. at 833. And she stated that her testimony, which she had given as a

rebuttal expert for the State ten or twelve times before, "may or may not help” the

jury. Id. at 836. The court concluded that the trial court had abused its discretion by

allowing her to testify as an expert after she had admitted her lack of scientific

expertise to render an opinion on the pediatric psychiatrist's theory. Id. at 837–38

(noting that although the witness was shown to be an experienced child sexual abuse

investigator, "the record contains no evidence demonstrating her ability to interpret

and apply psychiatric findings”). The court noted that it "express[ed] no opinion 29

regarding [her] qualifications to testify as an expert regarding her own observations

and opinions, without reference to the opinions, observations, and theories of Dr.

Summit.” Id. at 838 n.2.

Kingsbury argues that Jacob is like the expert in Perez in that the honeymoontension-incident cycle and danger assessment "serve[] no purpose other than to

inflame the jury with pseudo-science.” He acknowledges that similar testimony might

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 but

argues that none of those facts were present in Kingsbury's case.

We disagree. Here, we do not have "a non-medical witness testifying about

findings made about a pediatric psychiatrist” or about any other medical expert's

observations or that non-medical witness's interpretations thereof. Instead, we have

the testimony of a licensed master social worker who had directly studied intimate

partner violence, both the theory and practice.

Jacob had experience in using the tools of that field to educate others about it

and to try to prevent tragedies, both on the macro-level by leading an organization

dedicated to that pursuit and on the micro-level by acting as, among other things, a

consultant to the NFL on critical incidences of domestic violence. She explained the

danger assessment, which was introduced to the jury in Officer Davis's testimony, and

which was used daily as part of the victim intake-and-assessment process at

SafeHaven, and she used the power-and-control wheel and cycle of violence to 30

explain the dynamics of a relationship characterized by domestic violence, including

when a victim might decide to involve the police.

The power-and-control wheel exhibit and Jacob's testimony illustrated aspects

of emotional, physical, and financial abuse that could include using intimidation,

isolation, and threats; treating the victim like a servant; and manipulating the victim

through his or her children. Both the power-and-control wheel and danger

assessment have been recognized in case law as helpful to the jury in explaining a

domestic violence relationship, and Jacob tied these tools into her own observations

and opinions about intimate-partner violence.

Further, Jacob's testimony was admissible to explain Abigail's tolerance of her

abusive relationship with Kingsbury when, during her testimony, Abigail appeared to

try to minimize the history of domestic violence in her relationship with Kingsbury.

That is, Jacob's testimony provided the jury with an explanation why Abigail had lived

with Kingsbury for as long as she did and put into context the way that their

relationship worked. Accordingly, we conclude that the trial court did not abuse its

discretion when it determined that Jacob was qualified, and we overrule this portion

of Kingsbury's second issue.31

2. Reliability

With regard to reliability, Kingsbury refers us to two pre-Nenno cases14 and

complains that it is unclear from the record what principles of psychology or

psychiatry Jacob might have relied upon to develop her opinions when "[she] did not

cite nor rely upon any peer reviewed study or academic journal during her testimony”

and "[t]here was absolutely no mention of any methodology nor independent

assessments of accuracy” beyond Jacob's testimony that the assessment had been

"validated.” He complains that Jacob's testimony "was simply presented to boost the

credibility of the complainant and to backdoor testimony regarding [his] 'future

dangerousness' like the expert in Coble.”

In Coble, the court concluded that expert testimony concerning future

dangerousness was insufficiently reliable under Rule 702 because the expert had

created his own personal methodology, he did not know of any psychiatric or

psychology books or articles that used his factors, and he did not know of any studies

regarding the accuracy of long-term predictions into future violence. 330 S.W.3d at

270–72. The court noted that the appellant did not dispute that forensic psychiatry

14Kingsbury refers us to Fowler v. State, 958 S.W.2d 853, 860, 866 (Tex. App.—

Waco 1997) (op. on reh'g), aff'd on other grounds, 991 S.W.2d 258, 259, 261 (Tex. Crim.

App. 1999), and Forte v. State, 935 S.W.2d 172, 175–78 (Tex. App.—Fort Worth 1996,

pet. ref'd). In Fowler, decided the year before Nenno, the Waco court held that Kelly

applied to the soft sciences. 958 S.W.2d at 863–64 ("We believe that if at least some

of the Kelly factors cannot be satisfied, then the testimony should be excluded.”). We

likewise decided Forte prior to Nenno by applying Kelly to an expert witness's testimony

regarding the reliability of eyewitness testimony. 935 S.W.2d at 175–78 & n.5.32

was a science practiced solely by those with a medical degree or contest that the

expert's testimony was within the scope of that field; rather, the appellant challenged

the third prong of the Nenno inquiry, with regard to whether the expert's testimony

properly relied upon accepted forensic psychiatry principles. Id. at 273–74. The court

concluded that based on the record, it could not tell what forensic psychiatry

principles the expert might have relied upon because he cited no books, articles,

journals, or other forensic psychiatrists who practiced in the area, so there was no

objective source material to substantiate his methodology as appropriate. Id. at 277–

78.

Contrary to Kingsbury's argument, Jacob's testimony was not offered as "hard”

science expert testimony. See Morris v. State, 361 S.W.3d 649, 654 (Tex. Crim. App.

2011) (explaining that per Rule 702, expert testimony does not have to be based upon

science at all). Instead, the trial court applied the Nenno standard and could have

reasonably determined that Jacob's field of expertise—intimate partner violence—was

a legitimate one, see Fielder, 756 S.W.2d at 321; that, as set out above, the subject

matter of Jacob's testimony was within the scope of that field; and that—as also set

out above—Jacob's testimony properly relied upon or used the principles involved in

that field. See Nenno, 970 S.W.2d at 561; see also Morris, 361 S.W.3d at 654.

Accordingly, because the trial court could have found Jacob's testimony reliable under

the standard applicable to the "soft” sciences, we overrule this portion of his second

issue.33

3. Relevance

With regard to relevance, Kingsbury refers us to four more pre-Nenno cases—

Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996), Pierce v. State, 777 S.W.2d

399, 414–16 (Tex. Crim. App. 1989) (en banc), Rousseau v. State, 855 S.W.2d 666, 686

(Tex. Crim. App. 1993) (en banc), and Williams v. State, 895 S.W.2d 363, 365–66 (Tex.

Crim. App. 1994)—the first three of which pertain to eyewitness identification, which

was not an issue in the case. Cf. Blasdell v. State, 470 S.W.3d 59, 63 (Tex. Crim. App.

2015) ("Psychology is a soft science, and eyewitness identification is an established

subject within the scope of psychology.”). Williams is also inapposite in that the

excluded clinical psychologist had offered the "psychological profile of the type of

person who would make harassing telephone calls of a sexual nature” and then his

evaluation of the defendant. 895 S.W.2d at 364–65, 366 ("It is not sufficient that the

expert merely testify in a conclusory manner . . . that the defendant is not the type of

person who would make obscene, threatening telephone calls.”).

Kingsbury argues that in Jacob's testimony before the jury, she generally

testified to three issues: (1) that abusers in romantic relationships can be controlling;

(2) that people in abusive relationships may be in danger; and (3) that people who call

the police can be disappointed in the outcome. He asserts that none of these

concepts are outside the common sense of an untrained layman and that the State

"was unable to make an effort to tie pertinent facts of the case to the scientific

principles within the testimony,” first and foremost because "there were no scientific 34

principles identified within Jacob's testimony” but also because she was not given

hypotheticals relevant to the case and had never met with either of the parties.

The State responds that Jacob's testimony was offered to help explain the

abusive relationship between the parties under Code of Criminal Procedure Article

38.371 when the evidence showed that Kingsbury had been violent with Abigail

before, that she had continued to live with him even after he had abused her and had

been previously convicted of assaulting her, and that she would not have attended the

trial but for the court's requiring her to be there. The State further responds that

Jacob's testimony related to Kingsbury's behaviors of making threats to Abigail's

physical safety and isolating her.

In light of both Abigail's and Officer Davis's testimonies about the events of

that evening in March 2017, we think that the trial court could have reasonably

determined that Jacob's testimony would be "helpful.” Accordingly, we conclude that

the trial court did not abuse its discretion by allowing the State to present Jacob's

expert testimony, and we overrule the remainder of Kingsbury's second issue.

III. Jury Argument

In his first issue, Kingsbury argues that the trial court erred by permitting the

State to corroborate Abigail's testimony by interjecting facts from outside of the

record during guilt-innocence phase closing arguments. Kingsbury directs us to the

following portion of the prosecutor's rebuttal:35

. . . Officer Davis said on that stand more than one time, multiple

times, that the defendant's father's statements to him corroborated what

[Abigail] told him. They hadn't spoken. They were separated, and their

stories were the same. Their recollection was the same. And he told you

how unusual it is to have an independent witness.

[Defense counsel]: Excuse me, I'm going to object as to

improper characterization of the testimony and also trying to insert

testimony not received from a witness who did not testify, Mr.

Kingsbury, Jr., into the case, Your Honor.

THE COURT: Jury remember the testimony. Go ahead. [Emphasis added.]

Erroneous jury argument must be preserved by an objection pursued to an

adverse ruling. Hernandez v. State, 538 S.W.3d 619, 623 (Tex. Crim. App. 2018); see also

Tex. R. App. P. 33.1(a)(1). "A reminder that the 'jury will recall the evidence' is not

an adverse ruling.” Leopard v. State, 634 S.W.2d 799, 802 (Tex. App.—Fort Worth

1982, no pet.); see Johnson v. State, 604 S.W.2d 128, 132 (Tex. Crim. App. [Panel Op.]

1980) (holding that when the trial court merely stated, "The Court has charged the

jury on the law with reference to that facet,” the appellant had failed to secure a ruling

on her objection and thus failed to preserve her jury-argument complaint); DeRusse v.

State, 579 S.W.2d 224, 235 (Tex. Crim. App. [Panel Op.] 1979) ("The statement by the

trial court that the jury would remember the evidence is not sufficient

to preserve error; nothing is presented for review.”).

Because Kingsbury did not secure an adverse ruling on his objection, he has

failed to preserve this complaint for our review. See Hernandez, 538 S.W.3d at 622–23.

Compare Bess v. State, AP-76377, 2013 WL 827479, at *30 (Tex. Crim. App. Mar. 6,36

2013) (not designated for publication) (quoting the record in which after the trial

court stated, "The jury will recall the evidence the way they see it,” in response to

defense counsel's objection, defense counsel asked, "Was that overruled?” and

secured an express adverse ruling from the trial court), and Hunt v. State, No. 02-19-

00264-CR, 2020 WL 3987995, at *6 (Tex. App.—Fort Worth June 4, 2020, no pet.)

(mem. op., not designated for publication) (quoting the record in which after defense

counsel objected and the trial court replied "jury will recall the evidence,” defense

counsel secured an express adverse ruling by specifically asking for a ruling on the

objection), with Tesi v. State, No. 02-12-00096-CR, 2014 WL 70084, at *3, *5 (Tex.

App.—Fort Worth Jan. 9, 2014, pet. ref'd) (mem. op., not designated for publication)

(quoting record in which trial court stated, "Well, the jury will recall the evidence that

they've heard” in response to defense counsel's objection and holding that the

complaint was not preserved because he received no ruling on his objection).

Accordingly, we overrule Kingsbury's first issue.

IV. Redaction

In his third issue, Kingsbury argues that the trial court erred by permitting

redacted copies of judgments in State's Exhibits 14 and 16 during the punishment

phase. The State responds that the trial court did not abuse its discretion by redacting

the offense when the redaction hid a greater offense (aggravated robbery) than that

for which he was actually convicted on the same day as the revocation (robbery with

threats) when that robbery-with-threats judgment of conviction was also admitted 37

into evidence. The State further responds that even if the trial court abused its

discretion by admitting the redacted judgments, Kingsbury's substantial rights were

not affected because of his long criminal history that included previously assaulting

Abigail and also threatening to set another woman on fire.

Outside the jury's presence, defense counsel objected that the redaction in

State's Exhibits 14 and 16 would lead the jury to speculate as to what offense

Kingsbury had committed to have his probation revoked. The jury returned and the

State recalled Corporal Carnero, who identified Kingsbury and his CID number and

date of birth and identified the judgments of conviction in State's Exhibits 11, 12, 14,

16, 18, 19, 21, 23, and 25 as containing at least one of Kingsbury's identifiers.

Defense counsel stood on his prior objections without identifying them before the

jury, apparently to prevent drawing attention to the redaction, and the trial court

replied, "[s]ame rulings” and admitted the exhibits.

State's Exhibit 14 contains Kingsbury's November 7, 1980 conviction for

unauthorized use of a motor vehicle, to which Kingsbury pleaded guilty and was

sentenced to 5 years' confinement; the sentence was suspended in favor of 5 years of

probation. State's Exhibit 14 also contains the September 7, 1982 judgment revoking

Kingsbury's probation for his having "committed another offense against the laws of

this State” and for having failed to pay a fine, and it reflects that he was sentenced to

5 years' confinement. The offense upon which revocation was based—aggravated

robbery—was redacted. 38

State's Exhibit 16 contains Kingsbury's November 7, 1980 conviction for

burglary of a habitation, to which Kingsbury pleaded guilty and was sentenced to 10

years' confinement; the sentence was suspended in favor of 10 years of probation.

State's Exhibit 16 also contained the September 7, 1982 judgment revoking

Kingsbury's probation for his having "committed another offense” and for having

failed to pay his court costs and probation fee, and it reflects that he was sentenced to

10 years' confinement. The offense upon which revocation was based—aggravated

robbery—was redacted.

State's Exhibit 18 contains Kingsbury's September 7, 1982 judgment of

conviction for robbery with threats to which he pleaded guilty and received 12 years'

confinement. State's Exhibit 11, which contains Kingsbury's January 15, 1988

conviction for unauthorized use of a motor vehicle (for which he was sentenced to 40

years' confinement) also references Kingsbury's September 7, 1982 robbery

conviction because he pleaded true to the enhancement paragraphs for that

conviction (as well as to a May 22, 1981 burglary-of-a-habitation conviction).

We think the jury could "do the math” based on the September 7, 1982 date

included in Exhibits 11, 14, 16, and 18. That is, there was sufficient information in

the record for the jury to avoid speculating about what offense Kingsbury might have

committed in having his probation revoked because he was actually convicted of

robbery with threats on the same day as the revocation. Indeed, the redactions

benefitted Kingsbury by preventing the jury from learning that his revocation had 39

actually been based on an allegation of aggravated robbery instead of the lesserincluded robbery with threats.

However, to the extent that the trial court abused its discretion by allowing the

redaction, we agree with the State that any such error was harmless under Rule

44.2(b). See Tex. R. App. P. 44.2(b) (requiring the court to disregard any

nonconstitutional error that does not affect an appellant's substantial rights); Haley v.

State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005) (stating that an error only affects a

substantial right when it has a "substantial and injurious effect or influence in

determining the jury's verdict”).

The remaining exhibits—State's Exhibits 12, 19, 21, 23, and 25, to which

Kingsbury raised no objections—contained Kingsbury's May 22, 1981 conviction for

burglary of a habitation with intent to commit theft, for which he was sentenced to 5

years' confinement; Kingsbury's June 6, 2012 conviction for evading arrest or

detention, a class A misdemeanor for which he was sentenced to 10 days'

confinement; Kingsbury's April 11, 2013 conviction for assault-bodily injury of a

family member, for which he was sentenced to 100 days' confinement; Kingsbury's

April 11, 2013 conviction for resisting arrest, for which he was sentenced to 100 days'

confinement; and docket information on Kingsbury's convictions for terroristic threat

and deadly conduct, for which he was sentenced to 180 days' confinement and a

year's confinement, respectively. The terroristic threat and deadly conduct indictment

alleged that Kingsbury had used a flame or flammable liquid to place Doris Kingsbury 40

in fear of imminent serious bodily injury and that he had recklessly engaged in deadly

conduct by attempting to spray Doris with flammable liquid and by attempting

ignition in close proximity thereto.

The State reserved its closing argument on punishment, allowing defense

counsel to argue first. Defense counsel argued that the jury had to consider whether

to sentence the 65-year-old defendant to die in prison. The prosecutor responded

that the convictions in State's Exhibits 11, 12, and 18—to which Kingsbury raised no

objections—supported the habitual offender paragraphs in the indictment, increasing

Kingsbury's punishment range to 25 years to life. She argued that Kingsbury was a

career criminal who had "made it his job to create victims” and had left a trail of

violence, including that he had tried "to light Doris Kingsbury on fire,”

15 in addition

15One of our sister courts reviewed that case on appeal, and its factual

recitation states,

On October 17, 1998, Kingsbury arrived home around 11:00 p.m. and

asked his wife, Doris, where she had placed his guns. He explained to

her that he needed the guns to shoot some people who had stolen his

spark plug wires. Doris stated that she did not know about any guns,

and Kingsbury became angry. He poured gasoline into a bug sprayer,

got a propane bottle, and told Doris that he was going to "burn [her] ass

up.” He pumped the sprayer with the nozzle close to Doris' face and

tried to ignite it with a cigarette lighter, but it did not work. Doris ran

outside and then returned inside, called her sister, then called 9–1–1.

Kingsbury poured gasoline around the house, telling Doris that he was

going to "burn this M.F. house up with [her] in it,” and tried to light

some newspapers on the porch, but could not get them to ignite. When

the police arrived, they ordered Kingsbury to put down the cigarette

lighter and the bug sprayer, but he refused. The officers had to 41

to jabbing a knife at Abigail when she was pregnant. She warned the jurors that

Kingsbury had thrived on power and control in every relationship. She told the jury

that Kingsbury had had the opportunity to learn from his prior convictions but that

he was not going to learn.

The redactions in the two exhibits that Kingsbury complains about on

appeal—State's Exhibits 14 and 16—prevented the jury from seeing a greater offense

rather than the one for which Kingsbury had actually been convicted, which was

admitted into evidence. Based on our review of the record as a whole, see Motilla v.

State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002), and in light of the remaining

evidence and both parties' avoiding emphasizing the redaction, we conclude that

Kingsbury's substantial rights were not affected, and we overrule his remaining issue.

See id.

Having overruled all of Kingsbury’s issues, we affirm the trial court’s judgment.