Ronald Foster v. The State of Texas

Foster began a romantic relationship with Kim (a pseudonym) during the

spring of 2016. They lived together for about four months. In June, Kim became

pregnant, but she miscarried in September. By then, Foster and Kim were no longer

together, but “still had feelings” for each other.

In late September, Foster called Kim. He told her that she could pick up her

belongings from him at a hotel located on Oltorf Street, a major thoroughfare in

Austin. Kim met Foster there. She stayed overnight at the hotel with him on

Thursday and Friday. During that time, they used methamphetamine and marijuana,

watched television, and engaged in sexual activity. By Saturday afternoon, Kim was

ready to leave. She texted her new boyfriend to let him know that she was on her

way to his nearby apartment.

When Foster learned that Kim was leaving, he became angry. He tried to stop

her. He yelled at Kim and pushed her through the bathroom door. The hollow-core

door broke from the force, and the wood scratched Kim’s arm. Foster knocked her

GOV’T CODE § 73.001; Order Regarding Transfer of Cases From Courts of Appeals, Misc. Docket No. 17-9066 (Tex. June 20, 2017).

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to the bathroom floor, causing Kim to hit her head on the toilet. Kim tried to get off

the floor and sat on the toilet. Foster pinned her left hand down and put his right

forearm around her neck to apply pressure to strangle her. After five seconds, there

was a knock on the hotel room door. Foster released Kim and went to answer it.

Kim scrambled to her feet. Before Kim got to the door, Foster smashed her

cellphone. Kim picked up her electronic tablet and, when Foster opened the door,

she left the room. She hurriedly walked through the parking lot of the hotel property

next door. She noticed Foster running after her. Kim went into the lobby and

explained her predicament to the desk clerk, but the desk clerk ordered her to leave

because she was not a guest.

Foster caught up with Kim by an outdoor stairway near the hotel’s pool area.

He yelled at her, pushed her, and hit her on the left side of her head, and then he used

his fingers to grab her by the throat. Kim wrested herself away from Foster and

started down the Oltorf feeder road. Foster followed her, yelling and screaming.

When he caught up to Kim, Foster grabbed her electronic tablet and smashed it on

the ground.

Two people witnessed the altercation and called 911. One described seeing a

man yelling at a woman while the woman tried to get away from him. The man was

holding an electronic tablet in his left hand. The man dealt four serious blows to the

woman, one so hard that she almost fell over.

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A delivery driver from a nearby pizza shop also witnessed the altercation. He

heard someone yelling and screaming. When he turned the corner, he saw Foster

punching Kim’s head and face and Kim flailing toward Foster in an attempt to block

the blows. The driver saw that Kim was trying to get away from Foster. He tried to

help by stopping near her and unlocking his passenger-side door. Kim approached

and grabbed the door handle, but Foster pushed her away before she could open the

door. Foster screamed at the driver to leave.

While Foster and the driver exchanged words, Kim managed to get some

distance away. Foster noticed where Kim had gone, and he headed toward her. At

about the same time, Kim’s boyfriend arrived on foot. When Foster saw him with

Kim, Foster ran away. The boyfriend and Kim went into a nearby fast-food

restaurant.

The delivery driver saw Foster running down the sidewalk. He returned to

the pizza shop to get help from his co-worker. The two men tracked Foster to a

parking lot, where they cornered him until the police arrived. Police officers took

Foster into custody.

Meanwhile, Officer I. Erickson found Kim walking with her boyfriend. Kim

told Erickson that she had pain on the left side of her head and that Foster had

strangled her. Erickson observed redness and bruising on the left side of Kim’s neck,

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petechiae on the right side of her neck, and marks on her knees. In keeping with

police policy, Erickson called emergency services.

During the paramedic’s examination, she noticed bruising and petechiae on

both sides of Kim’s neck and a contusion on the left side of head. On one side of

Kim’s neck, she had a scar with petechiae around it. Kim explained that the scar

was from an incision in connection with her cancer treatment.

The paramedic also observed the scratches on Kim’s left arm and left leg, as

well as a fresh bruise and some other bruises on her legs. Kim told the paramedic

that one of the bruises on her leg was from Foster having bitten her a couple of days

earlier. The older bruises, she explained, resulted from an incident about two weeks

earlier when Foster pushed her out of a city bus.

Kim refused to go to the hospital. The paramedic explained that her refusal

was a typical victim response in family violence cases.

At trial, the State elicited testimony from Kim, the witnesses, the police

officers, and the paramedic. During the paramedic’s cross-examination, defense

counsel questioned her about Kim’s cancer treatment and drug abuse and its

likelihood of increasing her susceptibility to bruising. The paramedic confirmed that

both drug abuse and cancer treatment would weaken Kim’s immune system and

make her bruise more easily. She further testified that methamphetamine use can

cause skin lesions and would also make the user more likely to bruise.

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The trial court initially limited the State’s direct examination of Kim to

evidence of injuries that were apparent to the paramedic on the day of the incident.

Before cross-examining Kim, however, Foster’s counsel took her on voir dire to find

out whether she recognized a photograph taken in June 2015 that showed her with a

belt buckled and hung loosely around her neck, smiling. Foster’s counsel explained

that he sought to introduce the photo as an “alternate explanation for any injuries

sustained to [Kim’s] neck.” Defense counsel also sought to cross-examine Kim

with an image of a January 2017 post on Kim’s Facebook page that suggested she

enjoyed rough sex. Counsel explained that, “[i]f there are sexual practices that . . .

might lead to injuries [allegedly] caused by my client as a consequence of an assault,

I believe we are allowed to explore any alternate theories as to how she may have

sustained those injuries.” The trial court ruled that defense counsel could use this

evidence for impeachment, but that it would open the door for testimony concerning

other assaults that occurred during Kim and Foster’s relationship.

Kim denied that Foster had ever put his hands around her neck while they

were having sex. Foster’s counsel then questioned Kim about the photo, which she

identified as one Foster had taken of her right after she learned that she was pregnant.

Kim acknowledged the Facebook post but did not admit to having written it herself.

In the State’s redirect, Kim testified to other incidents of physical abuse that

occurred during her relationship with Foster. She explained that when the abuse

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started, it was just a slap now and then, but over time, it escalated—slaps turned into

pushing and choking. Kim stated that Foster had strangled her on three prior

occasions. She also recounted an incident in which Foster chased her down the road,

caught her, then hit her in front of a store, and another in which two men jumped out

of their truck to pull her away from Foster while he was attacking her.

The jury also heard expert testimony from Jeannie Tomanetz, a counselor with

the Austin Police Department. Tomanetz testified about the dynamics of domestic

violence.

DISCUSSION

Foster challenges the admission of Kim’s testimony about Foster’s other

acts of domestic violence and the expert’s testimony regarding general

characteristics of domestic violence.

I. Standard of review

Foster’s appeal requires us to review two evidentiary rulings. We review a

trial court’s ruling on the admissibility of evidence for an abuse of discretion.

Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); De La Paz v. State,

279 S.W.3d 336, 343 (Tex. Crim. App. 2009). Thus, we will not reverse the trial

court’s ruling unless it falls outside the zone of reasonable disagreement. Dabney v.

State, 492 S.W.3d 309, 318 (Tex. Crim. App. 2016); Walters v. State, 247 S.W.3d

204, 217 (Tex. Crim. App. 2007). A trial court’s decision to admit or exclude

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evidence will be upheld if it is correct on any theory of law applicable to the case,

even if the trial court made it for a wrong reason. State v. Story, 445 S.W.3d 729,

732 (Tex. Crim. App. 2014).

II. The trial court acted within its discretion in admitting testimony about prior incidents of domestic violence.

Foster first challenges the trial court’s admission of Kim’s testimony

recounting prior incidents of domestic violence during her relationship with Foster,

contending that the testimony constitutes prohibited character evidence and was

unfairly prejudicial. Relying on article 38.371 of the Texas Code of Criminal

Procedure, the trial court admitted the extraneous-offense testimony after concluding

that Foster had opened the door to this evidence. In pertinent part, article 38.371

provides that the nature of the relationship between Foster and Kim is admissible

evidence so long as it is not character 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 described by Subsection (a), 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.

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TEX. CODE CRIM. PROC. art. 38.371(b), (c). Foster complains that the trial court’s

ruling violates Texas Rules of Evidence 404(b) and 403, as incorporated by

subsection (c).

Texas Rule of Evidence 404(b) excludes evidence offered for the purpose of

proving conformity with bad character traits. De La Paz, 279 S.W.3d at 342–43.

But there are exceptions to the rule. Although evidence of other crimes, wrongs, or

acts may show character conformity, extraneous-offense evidence that has relevance

may be admissible for other purposes, “such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.

Defense counsel also may “open the door” to proof of other crimes by putting

motive, intent, or mistake at issue in an opening statement or during the cross

examination of the State’s witnesses. Powell v. State, 63 S.W.3d 435, 438–40 (Tex.

Crim. App. 2001); Cantu v. State, 395 S.W.3d 202, 213 (Tex. App.—Houston [1st

Dist.] 2012, pet. ref’d); Blackwell v. State, 193 S.W.3d 1, 11–15 (Tex. App.—

Houston [1st Dist.] 2006, pet. ref’d).

The challenged evidence in this case falls within the exception to Rule 404(b).

The trial court ruled that counsel’s cross-examination concerning photographs taken

three months before the charged assault and the Facebook post opened the door to

extraneous-offense evidence concerning “the nature of the relationship between the

actor and the alleged victim.” See TEX. CODE CRIM. PROC. art. 38.371(b). Defense

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counsel’s further cross-examination questioned whether Kim had consented to

Foster’s assaultive behavior, and his later cross-examination of the paramedic

questioned whether Kim was susceptible to bruising, suggesting that her injuries

were superficial. The State was entitled to rebut this theory with evidence that Foster

physically abused Kim throughout the relationship. The extraneous-offense

evidence tended to show Foster’s intent and lack of mistake in injuring Kim. The

trial court’s ruling therefore did not violate Rule 404(b).2

Foster’s complaint that the ruling violates Texas Rule of Evidence 403 is

similarly without merit. Rule 403 provides that otherwise relevant evidence may be

inadmissible if its probative value is substantially outweighed by the danger of unfair

prejudice. The rule “favors the admission of relevant evidence and carries a

presumption that relevant evidence will be more probative than prejudicial.”

Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). A rule 403 analysis

must balance (1) the inherent probative force of the proffered item of evidence, along

with (2) the proponent’s need for that evidence, against (3) any tendency of the

evidence to suggest a decision on an improper basis, (4) any tendency of the evidence

2 Foster also complains that Kim’s testimony constitutes improper rehabilitation evidence, but he failed to preserve this complaint in the trial court and, because the testimony is admissible under another legal theory, the complaint is unavailing. See State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014).



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to confuse or distract the jury from the main issues, (5) any tendency of the evidence

to be given undue weight by a jury, and (6) the likelihood that presentation of the

evidence will consume an inordinate amount of time or merely repeat evidence

already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App.

2006).

In determining the probative value of past criminal behavior, courts consider

“the closeness in time between the extraneous offense and the charged offense,” as

well as “the similarities between the extraneous offense and the charged offense.”

Kiser v. State, 893 S.W.2d 277, 281 (Tex. App.—Houston [1st Dist.] 1995, pet.

ref’d). In this case, the proof that Foster had physically abused Kim on other

occasions rebutted Foster’s evidence tending to show that Kim either consented to

Foster’s conduct or had exaggerated her injuries. Thus, the probative value was

high. The evidence was not likely to confuse or distract the jury. And, because the

trial court’s charge contained a limiting instruction on extraneous-offense evidence,

the jury was not likely to give the evidence undue weight. We hold that the trial

court acted within its discretion in admitting Kim’s testimony concerning other

instances of physical abuse by Foster during their relationship.



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III. The trial court acted within its discretion in allowing the State’s expert to testify about the dynamics of family violence.

Foster next complains that the trial court admitted Tomanetz’s expert

testimony on family violence dynamics in violation of Rules 404(b) and 403,

because the testimony imputed uncharged misconduct to him and any probative

value was substantially outweighed by the danger of unfair prejudice.

Under Texas Rule of Evidence 702, a witness “qualified as an expert by

knowledge, skill, experience, training, or education may testify in the form of an

opinion or otherwise” if the proffered testimony “will help the trier of fact to

understand the evidence or to determine a fact in issue.” TEX. R. EVID. 702. In

deciding whether to admit expert testimony, the trial court must be satisfied that

(1) the witness qualifies as an expert by reason of knowledge, skill, experience,

training, or education; (2) the subject matter is appropriate for expert testimony; and

(3) admitting the expert testimony will actually assist the factfinder in deciding the

case. Alvarado v. State, 912 S.W.2d 199, 215–16 (Tex. Crim. App. 1995); Dixon v.

State, 244 S.W.3d 472, 478 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d).

Recognizing that jurors generally may not be familiar with the typical

behavior of family violence victims, Texas courts have routinely concluded that

expert testimony concerning the dynamics of a relationship involving domestic

violence is admissible under Rule 702. See Dixon, 244 S.W.3d at 478–80; Mendoza

v. State, No. 08-13-00293-CR, 2015 WL 5999596, at *4–5 (Tex. App.—El Paso Oct.

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14, 2015, pet. ref’d) (mem. op., not designated for publication); Lessner v. State, 02

15-00400-CR, 2016 WL 4473263, at *2–3 (Tex. App.—Fort Worth Aug. 25, 2016,

no pet.) (per curiam) (mem. op., not designated for publication); Capello v. State,

No. 03–05–00553–CR, 2006 WL 2453021, at *4 Tex. App.—Austin Aug. 25, 2006,

pet. ref’d) (mem. op., not designated for publication). Courts have permitted the use

of expert testimony on the cycle of family violence and its dynamics of power and

control to help juries understand a victim’s delay, reluctance, and inconsistencies in

reporting abuse as well as other behavior consistent with that of family violence

victims. See Mendoza, 2015 WL 5999596, at *4 (discussing Scugoza v. State, 949

S.W.2d 360 (Tex. App.—San Antonio 1997, no pet.)); see also Lessner v. State,

2016 WL 4473263, at *3–6 (upholding trial court’s admission, over defendant’s

Rule 702 and Rule 403 objections, of expert testimony about the dynamics of family

violence and typical behavior of victims in relation to their abusers to explain

victim’s testimony recanting prior statement in affidavit of nonprosecution and other

behavior); Brewer v. State, 370 S.W.3d 471, 474 (Tex. App.—Amarillo 2012, no

pet.) (upholding admission of general expert testimony on domestic violence cycle

to assist jury in understanding victim’s delay in calling the police); Capello, 2006

WL 2453021, at *4–5 (upholding admission of expert testimony on cycle of

domestic abuse because it assisted jury in understanding why victim initially lied to

the police).

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In his Rule 403 challenge, Foster contends that the expert testimony was not

helpful because Kim did not refuse to talk about the assault and did not recant. The

expert testimony, however, was relevant to explain other evidence concerning Kim’s

behavior, including continuing in a relationship with Foster for several months even

though he was abusive, running away when she first saw the police officer, engaging

in friendly correspondence with Foster while he was in jail awaiting trial, and

agreeing to sign an affidavit of nonprosecution for him, something that she

ultimately did not do. A juror unfamiliar with family violence dynamics would lack

information concerning how to understand these apparent inconsistencies.

Tomanetz’s explanation of family violence dynamics, including the “power of

control wheel” and the “cycle of violence” provided a helpful framework for

understanding this behavior. See Mendoza, 2015 WL 5999596, at *4–5. Foster

complains that the testimony about an abuser’s conduct could be unfairly imputed

to him, but Tomanetz never mentioned Foster in connection with the behavior she

was describing. She testified that she had not formed an opinion about what

happened in this case and spoke about domestic violence situations only in

hypotheticals.

Accordingly, we hold that the trial court acted within its discretion in

admitting this evidence over a Rule 403 objection. Foster failed to preserve his Rule

404(b) complaint for review by failing to first raise it in the trial court. See

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Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014) (issue raised on

appeal must comport with objection made at trial). Thus, we reject Foster’s

challenges to the admission of the expert’s testimony regarding the general attributes

of relationships involving domestic violence.

We affirm the judgment of the trial court.