John Allen Lessner v. State ( 2016 )


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  •                            COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-15-00400-CR
    JOHN ALLEN LESSNER                                                 APPELLANT
    V.
    THE STATE OF TEXAS                                                      STATE
    ----------
    FROM THE COUNTY COURT AT LAW OF HOOD COUNTY
    TRIAL COURT NO. 47971
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    MEMORANDUM OPINION1
    ----------
    John Lessner appeals his conviction by a jury for misdemeanor assault.
    See Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2016).2 In his sole point,
    appellant contends the trial court abused its discretion by admitting the expert
    1
    See Tex. R. App. P. 47.4.
    2
    The jury also assessed his punishment at 365 days’ confinement and a
    $4,000 fine.
    testimony of Jerri Vaughn about family violence in general and typical behaviors
    of victims of family violence because the testimony was not relevant and was
    unfairly prejudicial. We affirm.
    Background
    At trial, the complainant testified that on March 22, 2015, during the course
    of an argument3 at the house she had been living in with appellant, appellant
    grabbed her by the hair and wrist, “slammed” her to the floor and used her body
    to wipe up spilled tea, grabbed her by the face and “slung” her against the
    refrigerator, and––while pinning her against the refrigerator with his forearm––bit
    her on the cheek, nose, and chin, leaving visible bite marks. At some point
    during the struggle, the complainant was able to call 911 using a panic button on
    the phone. But when the police arrived, she told an officer that nothing had
    happened and that she did not want to press charges. The complainant testified
    that she was afraid to get appellant in trouble and felt panic at the thought that he
    would get angry.      Nevertheless, after speaking with the complainant and
    appellant, and observing the bruises and swelling on the complainant’s face, the
    police decided to arrest appellant.
    The complainant refused to complete a written statement for the police, but
    she did request an emergency protective order and allowed an officer to take
    3
    Appellant and the complainant were living in his parents’ house; he got
    angry with the complainant for spilling tea “all over” the kitchen floor and
    “disrespecting” his parents’ house.
    2
    photographs of bruising on her arms and face. She also drove herself to the
    hospital where she told hospital staff that appellant had assaulted her.          The
    complainant allowed police to take additional photographs of her injuries the next
    morning and four days later.
    After appellant was charged with assault, the complainant signed two
    affidavits of nonprosecution. At trial, she testified that she had lied in at least one
    of the affidavits because of fear that appellant would “get in trouble.” In addition,
    she sought to vacate the protective order, also “to protect [appellant].”
    On cross-examination, appellant’s counsel questioned the complainant
    about her affidavits of nonprosecution, her wavering willingness to testify, her
    differing versions of events over the course of the case, and the fact that she had
    willingly engaged in sadomasochistic activities with appellant in the past and
    enjoyed “rough sex,” with her as the submissive partner. The complainant also
    testified that as part of that rough sex, appellant often bit her, particularly on the
    thighs, arms, and ears, but he never bit her face.
    After the complainant testified, over appellant’s rule 702 and 403
    objections,4 the trial court admitted the expert testimony of State’s witness Jerri
    Vaughn about the dynamics of family violence and typical behavior of domestic
    violence victims in relation to their abusers.       Tex. R. Evid. 403, 702.     More
    4
    Appellant also objected that Vaughn was not qualified to testify as an
    expert and that her testimony was not reliable. On appeal, appellant’s challenge
    to the admissibility of Vaughn’s testimony is limited to relevance and whether the
    evidence should have been excluded under rule 403.
    3
    specifically, Vaughn, a licensed master social worker and executive director of
    the Family Crisis Center in Johnson County, testified that victims of family
    violence often are reluctant to report their experiences for many reasons,
    including fear of economic consequences.            Vaughn testified that it is “fairly
    common” for victims of domestic violence to sign affidavits of nonprosecution out
    of fear, denial, and hope that the abuser will change. She also said that it is
    common for victims to minimize the abuse they have suffered due to shame,
    embarrassment, and denial. According to Vaughn, abusers often control the
    finances in a relationship, and “[f]amily violence is all about power and control
    [with] . . . the ultimate goal . . . to keep [the victim] in th[e] relationship where they
    have all the power.”
    Admissibility of Vaughn’s Testimony
    A trial court’s determination as to the admissibility of expert testimony is
    governed by an abuse of discretion standard. Montgomery v. State, 
    810 S.W.2d 372
    , 391 (Tex. Crim. App. 1991) (op. on reh’g). An appellate court must affirm a
    trial court’s ruling if it was at least within the “zone of reasonable disagreement.”
    
    Id. We consider
    the ruling in light of what was before the trial court at the time it
    made the ruling. Billodeau v. State, 
    277 S.W.3d 34
    , 39 (Tex. Crim. App. 2009).
    Admissibility of expert testimony is governed by rule 702 of the Texas
    Rules of Evidence, which states,
    A witness who is qualified as an expert by knowledge, skill,
    experience, training, or education may testify in the form of an
    opinion or otherwise if the expert’s scientific, technical, or other
    4
    specialized knowledge will help the trier of fact to understand the
    evidence or to determine a fact in issue.
    Tex. R. Evid. 702; Tillman v. State, 
    354 S.W.3d 425
    , 435 (Tex. Crim. App. 2011).
    The threshold determination is whether the proponent of the expert testimony
    proved by clear and convincing evidence that the testimony is “sufficiently
    reliable and relevant to help the jury” in understanding the evidence or
    determining an issue of fact. 
    Tillman, 354 S.W.3d at 435
    (citing Kelly v. State,
    
    824 S.W.2d 568
    , 572 (Tex. Crim. App. 1992)). Expert testimony is relevant or
    “fit[s]” the case if it assists the trier of fact and is sufficiently tied to the facts of the
    case. 
    Id. at 438;
    Jordan v. State, 
    928 S.W.2d 550
    , 555 (Tex. Crim. App. 1996);
    see Tex. R. Evid. 702.
    “Evidence admissible under rule 702 may include testimony which
    compares general or classical behavioral characteristics of a certain type of
    victim with the specific victim’s behavior patterns.” Scugoza v. State, 
    949 S.W.2d 360
    , 363 (Tex. App.—San Antonio 1997, no pet.) (citing Duckett v. State, 
    797 S.W.2d 906
    , 917 (Tex. Crim. App. 1990) (holding that expert’s testimony
    comparing reaction of complaining child with general behavioral characteristics of
    abused children helped jury in determining whether assault occurred);5 Fielder v.
    State, 
    756 S.W.2d 309
    , 321 (Tex. Crim. App. 1988) (holding same as to female
    5
    The court of criminal appeals has disapproved of Duckett, but only to the
    extent that it could be read “to hold that even expert testimony that is relevant as
    substantive evidence may yet be inadmissible unless it serves some
    rehabilitative function.” Cohn v. State, 
    849 S.W.2d 817
    , 819 (Tex. Crim. App.
    1993).
    5
    victims of domestic violence)); see Brewer v. State, 
    370 S.W.3d 471
    , 474 (Tex.
    App.—Amarillo 2012, no pet.). Because the average juror will not typically be
    familiar with the effect of family violence on victims and the dynamics of the
    relationship between abuser and victim, 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 living with a family member after
    an alleged assault. See Salinas v. State, 
    426 S.W.3d 318
    , 323 (Tex. App.––
    Houston [14th Dist.] 2014) (op. on reh’g), rev’d on unrelated grounds, 
    464 S.W.3d 363
    (Tex. Crim. App. 2015); Dixon v. State, 
    244 S.W.3d 472
    , 480 (Tex.
    App.—Houston [14th Dist.] 2007, pet. ref’d); 
    Scugoza, 949 S.W.2d at 363
    ; see
    also Mendoza v. State, No. 08-13-00293-CR, 
    2015 WL 5999596
    , at *2, *4–5
    (Tex. App.—El Paso Oct. 14, 2015, pet. ref’d) (not designated for publication)
    (holding testimony regarding cycle of family violence relevant when assault was
    witnessed by third party but victim refused to cooperate with police and testified
    for defense); 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) (determining that expert testimony on cycle of abuse was relevant
    because it assisted jury in understanding why victim of domestic violence might
    lie to police).
    Appellant acknowledges that such evidence can be admissible but
    nevertheless argues that the admissibility of such evidence is limited to only
    those cases in which the opponent of the evidence or the evidence itself raises a
    6
    material issue requiring such explanation and that no material issue was raised
    here.    We need not decide the issue as framed by appellant because the
    evidence was relevant to a material issue raised by the evidence in the case.
    Appellant’s counsel told the jury in his opening statement that the complainant
    had told numerous versions of the events of March 22, 2015, that she had put in
    writing her desire to drop the charges, and that she has “zero” credibility.
    According to appellant’s counsel, he and the complainant had merely engaged in
    consensual “rough sex” on March 22, 2015, and she thereafter leveraged the
    threat of charges to extort him and his family for money. Additionally, appellant
    cross-examined the complainant extensively regarding the affidavits of
    nonprosecution, her wavering willingness to testify, her extensive cooperation
    with the defense, and her different versions of events.          Accordingly, the
    complainant’s inconsistent behavior was clearly raised by the evidence, and
    Vaughn’s testimony explaining why a victim of domestic violence would report an
    assault but then refuse to press charges, sign affidavits of nonprosecution, and
    cooperate extensively with the defense was relevant to provide another possible
    explanation of that behavior. See 
    Dixon, 244 S.W.3d at 480
    ; Capello, 
    2006 WL 2453021
    , at *4.
    Appellant contends that even if Vaughn’s testimony was relevant, it was
    nevertheless inadmissible under rule 403. Under rule 403, a court may exclude
    relevant evidence if its probative value is substantially outweighed by a danger of
    unfair prejudice, confusion of the issues, the jury’s being misled, undue delay, or
    7
    the needless presentation of cumulative evidence.               Tex. R. Evid. 403;
    Gigliobianco v. State, 
    210 S.W.3d 637
    , 640–41 (Tex. Crim. App. 2006)
    (“Relevant evidence may be excluded if its probative value is not worth the
    problems that its admission may cause. The issue is whether the search for truth
    will be helped or hindered by the interjection of distracting, confusing, or
    emotionally charged evidence.” (quoting J. McLaughlin et al., Weinstein’s Federal
    Evidence § 403.02[1][a] at 403–6 (2006 rev.)).
    In deciding whether to admit evidence over a rule 403 objection, a trial
    court
    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 decision on an
    improper basis, (4) any tendency of the evidence to confuse or
    distract the jury from the main issues, (5) any tendency of the
    evidence to be given undue weight by a jury that has not been
    equipped to evaluate the probative force of the evidence, and (6) the
    likelihood that presentation of the evidence will consume an
    inordinate amount of time or merely repeat evidence already
    admitted.
    
    Id. at 641–42.
    We review the trial court’s decision for an abuse of discretion. 
    Id. at 642–43.
    Vaughn’s    expert   testimony   was   probative   to    explain   behavioral
    characteristics of victims of family violence, generally, and the complainant’s
    behavioral patterns by comparison. For the reasons stated above and similar to
    those cited in Scugoza, Vaughn’s testimony helped explain why someone who
    had been a victim of family violence would report an assault but later sign an
    8
    affidavit of nonprosecution,6 waver in deciding to testify,7 tell different versions of
    what happened to different people, and cooperate extensively with the 
    defense. 949 S.W.2d at 363
    . Appellant’s argument that Vaughn did not research this
    particular case, its facts, or have any interaction with or knowledge of the
    complainant or appellant detracts little, if any, from the evidence’s probative
    value. See 
    id. at 361,
    363; see also Tex. R. Evid. 703; Mendoza, 
    2015 WL 5999596
    , at *4 (noting that expert is not required to interview witnesses or
    conduct an investigation of the facts for expert’s testimony to be admissible).
    Appellant argues that Vaughn’s testimony was unduly prejudicial because
    it could have led the jury to believe that he had committed extraneous acts of
    violence against the complainant or that he had engaged in the types of
    controlling behavior that Vaughn had described, thus influencing the jury to
    convict him for being an abuser in general. Here, Vaughn’s description of the
    cycle of violence, traumatic bonding, victim behavioral characteristics, and
    subsequent opinion finding similarity with the complainant’s behavioral patterns
    6
    Vaughn testified that this practice is “fairly common” at her shelter and
    typically results from (1) aggressor intimidation by the aggressor himself, his
    family members, or someone else, (2) fear of financial or livelihood instability, (3)
    a hope that the aggressor changes, and (4) denial or minimization of abuse and
    a lack of control.
    7
    Vaughn testified victims may commonly hesitate to testify because they
    still value the relationship or they have experienced “traumatic bonding,” in which
    victims irrationally identify with a perpetrator who is providing economic and
    emotional sustenance. Alternatively, Vaughn stated victims may waver due to
    brain trauma-induced swings in mood or focus.
    9
    naturally assumes the presence of abuse, but it does not suggest a decision on
    an irrational basis beyond that of the underlying assault.    See 
    Duckett, 797 S.W.2d at 913
    (noting child sexual abuse accommodation syndrome evidence
    assumes the presence of abuse but properly explains sexually abused child’s
    reactions to it).    And although Vaughn’s testimony tends to make the
    complainant’s testimony more plausible, it is well-settled that we should not
    exclude otherwise admissible substantive evidence for mere injury to an
    appellant’s case. See Pawlak v. State, 
    420 S.W.3d 807
    , 811 (Tex. Crim. App.
    2013) (noting that rule 403 excludes only unfairly prejudicial evidence because
    “all evidence against a defendant is, by its very nature, designed to be
    prejudicial”).
    Moreover, other evidence suggested that a history of domestic violence did
    exist and that the complainant’s and appellant’s relationship shared some of the
    typical relationship characteristics about which Vaughn testified. From October
    2014 through March 2015, the complainant was not employed. She often went
    with appellant during the day while he worked in his landscaping business. The
    complainant and appellant lived in appellant’s father’s and stepmother’s home
    and did not pay rent. Appellant was allowed to use his parents’ truck, but the
    complainant was not.     Although the complainant testified that she received
    monthly checks from her father’s estate during that time, she had no car and no
    cash saved.
    10
    The complainant testified that she referred to appellant’s father as “Big
    Papa.” According to the complainant, as the police were arresting appellant and
    he walked past her, he told her to “[c]all Big Papa and tell him our[8] truth,” which
    she said meant “[t]o say it was all sex.” She also said, “That’s what I always told
    my family.” When the complainant contacted appellant’s father before going to
    the hospital, he suggested that she contact the arraignment judge. So after
    leaving the hospital, she waited five hours in the parking lot of the Hood County
    Jail until the arraignment judge arrived. She tried to prevent the judge from
    signing an emergency protective order, but the judge would not consider her
    request.   In explaining why she went to see the arraignment judge, the
    complainant explained that she “was just trying to right my wrongs,” which meant
    that she “had to make it right” and that appellant “couldn’t get in trouble.” She
    further stated, “[Appellant] always told me to right my wrongs.”9        [Emphasis
    added.]
    The complainant testified that appellant’s attorney called the day after
    appellant’s arrest and told her that she could sign an affidavit of nonprosecution.
    As the complainant was leaving for the attorney’s office, appellant’s stepmother
    8
    The jury could have reasonably inferred that “our truth” was different from
    “the truth.” See, e.g., Temple v. State, 
    390 S.W.3d 341
    , 360 (Tex. Crim. App.
    2013).
    9
    The complainant admitted whispering, “Don’t let him go,” during a meeting
    at the prosecutor’s office because she “couldn’t right this wrong, . . . and he was
    going to be mad. He was going to be mad because I couldn’t get this one right.”
    11
    drove up, so the stepmother drove the complainant. The complainant testified
    that she lied in the affidavit so that appellant would not “get in trouble” because
    he was “all [she] had”: “He protected me. I had to protect him.” In reference to
    her statement in the affidavit that nothing had happened, she testified, while
    crying, “And I did our truth:   It was rough sex. I did. I did.      I tried.”   The
    complainant also signed the second affidavit of nonprosecution at appellant’s
    attorney’s office.
    Finally, after appellant was arrested and the complainant returned to his
    parents’ house, appellant’s parents told her that she had to move out in four
    days. The complainant had already told them that she was not going to fight
    them because she knew that appellant would “come home,” so she would go
    somewhere else instead. The police took her to a safe house.
    Thus, there was evidence before the trial court that the complainant was
    financially dependent on appellant and his parents––consistent with a typical
    victim’s motive to recant––that appellant appeared to be in a position of power
    and control in the relationship, both economically and sexually, and that the
    complainant was afraid of what would happen after she called the police and
    appellant was arrested. Vaughn’s general testimony––which she made clear
    was not based upon any knowledge of the complainant or the relationship
    between appellant and the complainant––was no more likely to suggest that
    appellant was an abuser in general than this specific testimony of the
    complainant.
    12
    Appellant’s reliance on the analysis in Gonzalez v. State, No. 03-07-
    00323-CR, 
    2008 WL 2736889
    (Tex. App.––Austin July 10, 2008, pet. ref’d)
    (mem. op., not designated for publication), is misplaced.         In that case, the
    evidence showed that Gonzalez, who was married to but separated from the
    complainant, took her to a motel against her will and forced her inside after the
    complainant had met him to discuss their income tax refund. 
    Id. at *1.
    The
    complainant cried out to a maid who was standing nearby. 
    Id. The maid
    notified
    the front desk attendant, who called the room; when Gonzalez answered and
    said he and his wife were having marital difficulty and everything was fine, the
    motel staff accepted his answer and did not take any other action. 
    Id. After Gonzalez
    threw the complainant on the bed and tried to gag her, she became
    afraid; after initially refusing his requests for sex, she finally agreed because she
    was afraid she “wouldn’t walk out of that room alive” if she did not. 
    Id. at *2.
    Afterward, the complainant accompanied Gonzalez to a restaurant, where she
    called her divorce attorney and 911 from the restroom.          
    Id. Gonzalez was
    charged with and convicted of aggravated kidnapping and aggravated sexual
    assault. 
    Id. at *1.
    Over Gonzalez’s rule 403 objection, the trial court admitted testimony from
    a San Marcos police officer about the cycle of domestic violence and why a
    victim would return to an abuser or keep the abuse secret. 
    Id. at *4–5.
    The trial
    court also allowed the officer to testify about an unrelated investigation in which
    she had been involved; in that case, the wife had been abused and sexually
    13
    assaulted by her husband for years but did not call the police until the husband
    strangled her and she lost consciousness. 
    Id. at *5.
    The State contended that
    the evidence rebutted the defense’s theory that the entire encounter with the
    complainant was consensual as supported by the evidence that she did not cry
    out or try to get help when they were leaving the motel and that no one heard any
    unusual noises from outside the motel room during the alleged assault. 
    Id. The Austin
    court of appeals held that the evidence was inadmissible under
    rule 403. 
    Id. The court
    concluded that the testimony had very little probative
    value because no evidence showed (1) that the complainant had displayed the
    typical characteristics of an abused spouse that had been described by the
    officer, (2) that the complainant delayed in making an outcry, or (3) that the
    complainant’s version of events was inconsistent.       
    Id. Moreover, the
    same
    evidence failed to explain why the complainant would have cried out when she
    and Gonzalez were entering the room but not when they were leaving. 
    Id. The court
    thus concluded that the slight probative value of the evidence was
    substantially outweighed by the danger of raising a suspicion in the jurors’ minds
    that Gonzalez had abused the complainant in the past. 
    Id. Gonzalez is
    thus distinguishable from this case, in which the expert’s
    testimony was relevant and other evidence tended to show that appellant had
    assaulted the complainant in the past. We therefore conclude that the probative
    value of the evidence was not substantially outweighed by the possibility of unfair
    prejudice derived from an inference that appellant had engaged in abusive
    14
    conduct described beyond the offense for which he was on trial. Accordingly, the
    trial court did not abuse its discretion by admitting Vaughn’s expert testimony
    under rule 403. See Cohn v. State, 
    849 S.W.2d 817
    , 820–21 (Tex. Crim. App.
    1993).
    Because the trial court did not abuse its discretion by admitting the
    evidence over appellant’s rule 403 and 702 objections, we overrule appellant’s
    point.
    Conclusion
    Having overruled appellant’s sole point, we affirm the trial court’s
    judgment.
    PER CURIAM
    PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.
    DAUPHINOT, J., dissents without opinion.
    DO NOT PUBLISH
    Tex. R. App. P. 47.2(b)
    DELIVERED: August 25, 2016
    15