Ervin Edward Kingsbury, III AKA Irving Edward Kingsbury, III v. the State of Texas ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00239-CR
___________________________
ERVIN EDWARD KINGSBURY, III AKA IRVING EDWARD KINGSBURY, III,
Appellant
V.
THE STATE OF TEXAS
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court No. 1578626R
Before Sudderth, C.J.; Womack and Wallach, JJ.
Opinion by Chief Justice Sudderth
OPINION
I. Introduction
Abigail1 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
1
We use a pseudonym to protect the complainant’s privacy.
2
Officer Davis said that the knives were “considerably larger than paring
knives” and that he had “seen homicides committed with knives smaller than that.”
2
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.
3
Aggravated 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).
4
Kingsbury’s father had dementia and was unavailable to testify.
3
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 abuse-
of-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
5
We begin our review of Kingsbury’s appeal with his most complex issue.
4
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 at672 n.1.
5
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 that
6
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
7
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
8
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
9
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 co-
authored a family therapy book, had taught university classes on the dynamics of
10
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 abuser-
victim 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
11
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 self-
employed, 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.
6
Abigail described Kingsbury as becoming verbally aggressive and “smart-
mouthing” when he drank alcohol, but she denied that he often drank during their
relationship.
Abigail acknowledged her criminal history during her testimony, including a
7
2012 misdemeanor assault-bodily injury (family violence) conviction, a 2013
misdemeanor theft conviction, and a felony DWI conviction.
12
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
13
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
8
Officer 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.”
14
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. He
15
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
Officer Davis said that in domestic violence situations, which have the
9
potential for physical violence when “emotions tend to be running so high,”
department protocol was for several officers to be assigned to the call.
16
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.”
17
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 “evidence-
based curriculum that teaches [domestic violence] offenders to take violence off the
table” and recognizes that violence “is rooted in power and control.” The Duluth
18
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,
10
Another 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.
19
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 intimate-
partner 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.
20
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 guilt-
innocence 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’s
21
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
During the Rule 705 hearing, Jacob stated that SafeHaven facilitates one of
11
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.”
During cross-examination, Jacob acknowledged that there were two Tarrant
12
County district attorneys on the SafeHaven board of directors and that she did not
think that there were any criminal defense attorneys.
22
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
23
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)
24
• 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 while
25
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,
26
[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,
13
Jacob 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.
27
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
28
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 honeymoon-
tension-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
29
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.
30
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 at270–72. The court noted that the appellant did not dispute that forensic psychiatry
14
Kingsbury 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.
31
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.
32
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
33
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:
34
. . . 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,
35
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
36
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.
37
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
38
actually been based on an allegation of aggravated robbery instead of the lesser-
included 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
39
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
15
One 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
40
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.V. Conclusion
Having overruled all of Kingsbury’s issues, we affirm the trial court’s judgment.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
forcefully stop Kingsbury. At the officers’ direction, Doris threw the
“hissing” propane bottle into the street.
Kingsbury v. State, 14 S.W.3d 405, 406–07 (Tex. App.—Waco 2000, no pet.). However,
during the punishment phase in the instant case, the State did not go into the details
beyond what was mentioned in the terroristic threat and deadly conduct indictment.
41
Publish
Delivered: June 10, 2021
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