Christopher Gadsden v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00195-CR
___________________________
CHRISTOPHER GADSDEN, Appellant
V.
THE STATE OF TEXAS
On Appeal from County Criminal Court No. 5
Tarrant County, Texas
Trial Court No. 1644138
Before Sudderth, C.J.; Birdwell and Bassel, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
A jury found Appellant Christopher Gadsden guilty of assault causing bodily
injury. Following the jury’s verdict, the trial court made a finding of family violence
and sentenced Gadsden to 250 days in jail and a $500 fine. The trial court suspended
imposition of imprisonment and placed Gadsden on probation for twenty months.
Gadsden now appeals his conviction.
In two points of error, Gadsden contends the trial court abused its discretion
by (1) admitting extraneous-offense evidence as relationship evidence under Article
38.371, see Tex. Code Crim. Proc. Ann. art. 38.371, because the evidence did not
comply with Rules 404(b) and 403, see Tex. R. Evid. 403, 404(b), and (2) admitting
expert testimony and exhibits related to the dynamics of domestic violence because
the evidence was not sufficiently tied to the facts of the case to be relevant to aid in
the jury’s decision, see Tex. R. Evid. 702. We hold that the trial court did not abuse its
discretion by admitting the challenged evidence or by allowing the expert testimony
and exhibits; we therefore affirm the trial court’s judgment.
I. Background1
On November 5, 2019, Gadsden’s wife, Heidi, 2 drove Gadsden to the Dallas–
Fort Worth airport for his flight to Mexico. Gadsden and Heidi’s adopted daughter,
1
Because Gadsden does not challenge the sufficiency of the evidence to
support his conviction, we omit a more detailed factual background and will set forth
additional facts as necessary in our discussion.
2
Aliases have been used for Gadsden’s wife and their minor child. See Tex. R.
2
Gia, was also in the vehicle. That morning, Gadsden, Heidi, and Gia left their house
before sunrise; it was dark and had been raining. As they entered the airport premises,
there was a physical altercation in the vehicle between Heidi and Gadsden. Heidi later
filed a police report alleging that Gadsden had assaulted her. When he returned from
his trip to Mexico, Gadsden was arrested at the airport and charged with family-
violence assault. At Gadsden’s trial, Heidi’s and Gadsden’s testimonies regarding the
assault contradicted each other.
Heidi testified that on the morning she drove Gadsden to the airport, it had
been dark and raining, and she had to drive through busy traffic and road
construction. Because of the dangerous driving conditions, Heidi drove cautiously. As
they entered the airport’s toll road, Heidi pulled up to a toll booth to retrieve a ticket,
and in doing so, she “slightly scratched” the driver’s side mirror of the vehicle.
Gadsden then began punching Heidi in her right arm, cursing at her, and calling her
stupid. Heidi testified that Gadsden hit her several times. Heidi then dropped
Gadsden off at the terminal, and as he left the vehicle, he told Heidi that he never
wanted to see her again and that Gia could “go to hell.”
Gadsden, on the other hand, testified that Heidi had been upset with him that
morning because she did not want him to go back to Mexico. Gadsden described
Heidi’s demeanor as “very angry.” On the way to the airport, Heidi began speeding,
weaving in and out of traffic, accelerating suddenly, and slamming on the brakes to
App. P. 9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel
Op.] 1982).
3
“spite” him. Gadsden told Heidi to slow down several times. As they approached the
airport toll booth, Heidi slammed on the brakes, and in the process, the driver’s side
mirror hit the concrete post. When Heidi struck the toll booth, Gadsden reached over
and “grabbed” her arm and told her to slow down because she was “going to kill
[them].” Gadsden testified that he never hit or punched Heidi but that it was “quite
possible” he could have bruised her arm when he reached over to grab her because
she “has always bruised very easily.” 3 He also testified that Heidi had hit him as he got
out of the car at the terminal. Heidi “snickered” at Gadsden and told him that he was
going to go to jail and that she would get custody of Gia.
The State gave notice that it intended to introduce evidence at trial to show the
relationship between Heidi and Gadsden, including Heidi’s testimony that Gadsden
(1) had been controlling Heidi throughout the relationship; (2) had isolated her from
her friends and family; (3) had physically abused her several times throughout the
relationship; (4) had choked her; (5) had punched her; (6) had pushed her down the
stairs; (7) had forced her to perform sexual acts; (8) had threatened her with
immigration consequences involving their daughter, who they were adopting from
Mexico; (9) had sent harassing messages to Heidi; and (10) had threatened to kill
Heidi. The State also sought to introduce evidence that the physical violence had
increased in severity or frequency in the year before the November 5, 2019 assault and
3
During Heidi’s testimony, the State entered photos of Heidi’s bruises into
evidence. Heidi testified that during the week following the assault, she had taken
those photos of her arm—where Gadsden had punched her—that show the
progression of her bruising.
4
that Gadsden had physically assaulted Gia on at least one occasion when he slapped
her in the face.
At trial, Gadsden objected to the admission of the evidence under Rules 403
and 404(b). The trial court determined that under Article 38.371(b), evidence of the
nature of the relationship between Gadsden and Heidi was admissible and overruled
Gadsden’s objection. However, the trial court clarified that Heidi could testify only
about her relationship with Gadsden and not about his relationship with their
daughter; any testimony related to the allegation that Gadsden had slapped Gia across
the face was inadmissible. The trial court then issued a limiting instruction in the
written jury charge:
You are further charged that if there is any evidence before you in this
case tending to show that [Gadsden] committed a crime, wrong, or act
other than the offense alleged in the information, you cannot consider
said evidence for any purpose unless you first find and believe beyond a
reasonable doubt that [Gadsden] committed said crime, wrong[,] or act.
If you find and believe beyond a reasonable doubt that [Gadsden]
committed the crime, wrong[,] or act, you may then consider the same in
determining the purpose for which it was introduced, namely, the nature
of the relationship of the parties, and for no other purpose.
In addition to the extraneous-offense evidence, the State sought to introduce
the expert testimony of Lacy Hensley regarding the dynamics of domestic violence.
When the State tendered Hensley as an expert at trial, Gadsden objected under Rule
702 and argued that “the dynamics of domestic violence” was not a subject matter
requiring scientific or technical knowledge for which a jury would need the assistance
of an expert. The trial court overruled the objection and allowed the testimony.
5
Hensley testified generally about domestic violence and more specifically about the
cycle of violence, which describes the three cyclic phases of an abusive relationship,
and power and control, which explains the different ways in which an abuser may
maintain power and control over their victim. To aid in Hensley’s testimony, the State
offered the power-and-control wheel and the cycle of violence as demonstrative
exhibits, and Gadsden objected to relevance and hearsay. The trial court overruled the
objections and admitted both exhibits for demonstrative purposes.
II. Discussion
A. Standard of Review
We review the trial court’s admission of evidence for an abuse of discretion,
and we will uphold the trial court’s decision so long as it falls within the “zone of
reasonable disagreement” and is correct under any theory of law applicable to the
case. Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018); Henley v. State, 493
S.W.3d 77, 82–83 (Tex. Crim. App. 2016); Merrick v. State, 567 S.W.3d 359, 375 (Tex.
App.—Fort Worth 2018, pet. ref’d); Pettigrew v. State, No. 02-14-00494-CR, 2016 WL
7405792, at *5 (Tex. App.—Fort Worth Dec. 22, 2016, pet. ref’d) (mem. op., not
designated for publication). We also review a trial court’s ruling on an expert’s
qualifications for an abuse of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex.
Crim. App. 2019); Rodgers v. State, 205 S.W.3d 525, 527–28 (Tex. Crim. App. 2006).
We will uphold the trial court’s correct decision under any applicable legal theory even
if the trial court gave a wrong or incomplete reason for its ruling. De La Paz v. State,
6
279 S.W.3d 336, 344 (Tex. Crim. App. 2009); Qualls v. State, 547 S.W.3d 663, 675 (Tex.
App.—Fort Worth 2018, pet. ref’d).
B. Admissibility of Evidence of Extraneous Offenses
In his first point of error, Gadsden complains about the trial court’s admission
of the State’s evidence proffered under Article 38.371 of the Code of Criminal
Procedure. He argues that the extraneous-offense evidence was offered to show
Gadsden’s character conformity in violation of Rule 404(b) and that the probative
value of the evidence was substantially outweighed by a risk of undue prejudice,
confusing the issues, and misleading the jury, in violation of Rule 403. See Tex. R.
Evid. 403, 404(b).
1. The Extraneous-Offense Evidence
At trial, the jury heard extraneous-offense evidence through Heidi’s testimony,
who testified about her relationship with Gadsden and his history of abuse. Heidi
testified that she and Gadsden got married in 2007 and that Gadsden became verbally
abusive shortly thereafter. Specifically, Gadsden began yelling and cursing at Heidi in
2007, and he would “twist things around” on her. Heidi and Gadsden eventually
decided to adopt a baby from Mexico, and when Gia was born, Heidi began traveling
back and forth to Mexico to be with Gia. While Heidi was in Mexico with Gia,
Gadsden would call Heidi to curse at her and tell her to come home to do his laundry.
On one occasion when Heidi was home, Gadsden cursed at her and pushed her down
the stairs while she was carrying a hamper of dirty laundry. On another occasion when
7
Heidi came home to surprise Gadsden, he became angry and slapped her across her
cheek.
Gadsden and Heidi eventually moved to Mexico together to be with Gia, and
the abuse worsened. Gadsden began drinking, and he would push, shove, and slap
Heidi. Heidi ultimately became Gadsden’s “servant,” and Gadsden would force her to
perform sexual acts she did not want to do and “wear things” she did not want to
wear. Heidi testified that, although she had considered leaving Gadsden while they
lived in Mexico, she stayed with him because (1) he had threatened to report her to
immigration services and said he would accuse her of kidnapping Gia and (2) she had
been alone and felt she did not have any support.
In July 2019, Gadsden, Heidi, and Gia moved to Texas from Mexico, and
Gadsden continued to travel back and forth between Texas and Mexico for his
business. Heidi testified that the abuse occurred even when Gadsden was in Mexico.
She described Gadsden as controlling; he controlled her access to finances, and she
always had to ask him for permission to use money. While he was gone, he controlled
her life through abusive messages and abusive phone calls. When he would return
from Mexico, he would check the mileage on the vehicle he allowed her to drive to
see how far she had driven while he was gone.
During Heidi’s testimony, the State entered evidence of “screen shots” of
messages that Gadsden had sent to Heidi via the texting application, WhatsApp. On
November 17, 2019—after the alleged assault—Gadsden wrote
8
Heidi answer the phone . . . . If you want [Gia] to get her paper answer
or I swear to [expletive] God I will call the attorney tomorrow and tell
them I don’t want to continue with [Gia’s] case and she will be deported
. . . . [E]ither you answer the phone[,] or it will be a very bad day for you
tomorrow[.]
After Heidi received several missed phone calls from Gadsden, Gadsden threatened
Heidi again: “There are going to be complicated and serious issues when I stop [Gia’s]
case[. S]he will be deported . . . . [I]s that what you want?” The next day, Gadsden
apologized to Heidi: “Look I’m really sorry and was way out of line, and can never be
undone, and I will pay for it for the rest of my life[.]” A few days later, after more
missed phone calls, Gadsden told Heidi that they were both abusers:
Wow really so you’re throwing it all away? Oh and when you say “abuse”
please check the Texas def[i]nition[.] I’ll email it to you but it includes
“willful destruction of property” ie [sic] the car mirror[,] so I have a
counter so we both are abusers[.] [W]hat do you think is going to happen
to [Gia]?
Heidi testified that she was not an abuser. She stated that to Gadsden, the most
important thing in his life was his vehicle.
Heidi testified that before the November 5, 2019 assault, she had not reported
any of Gadsden’s abuse to the police because he would threaten her and tell her that
he would not complete Gia’s adoption process, which would prevent Gia from
entering the United States. She decided to report the November 5, 2019 assault
because it was the first time Gadsden had hit her in front of Gia, and she did not want
Gia to grow up thinking that kind of behavior was acceptable. But Heidi did not
immediately call the police after the assault. She testified that at first, she did not want
9
to report it because she was “very scared.” Heidi did not report the assault until that
night.4
2. Admissibility under Rule 404(b) and Article 38.371
Rule 404(b) precludes the admission of evidence of a crime, wrong, or other act
solely to prove a person’s character to show that he acted in conformity with that
character on a particular occasion. Tex. R. Evid. 404(b). However, the evidence may
be admitted for other purposes, “such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Id.“Those listed purposes ‘are neither mutually exclusive nor collectively exhaustive.’”
James v. State, 623 S.W.3d 533, 545 (Tex. App.—Fort Worth 2021, no pet.) (quoting
De La Paz, 279 S.W.3d at 343); see also Garcia v. State, 201 S.W.3d 695, 703 (Tex. Crim.
App. 2006) (“Based on the clear language of the Rule, this list is not exhaustive.”).
Indeed, Rule 404(b) limits character evidence but is nevertheless a rule of inclusion.
Tex. R. Evid. 404(b); De La Paz, 279 S.W.3d at 343; James, 623 S.W.3d at 545.
Article 38.371 of the Code of Criminal Procedure provides another non-
character-conformity purpose for admitting extraneous-offense evidence, which is
evidence of “all relevant facts and circumstances” that may assist a trier of fact in a
family-violence prosecution. Tex. Code Crim. Proc. Ann. art. 38.371. It expressly
allows extraneous-offense evidence regarding the nature of the relationship between
At trial, Heidi’s sister testified that she had seen the bruises on Heidi’s arm
4
when Heidi picked Gia up from her house that evening. She then told Heidi that “it
was time. It was already so many years going through that stuff.” Heidi reported the
assault that night.
10
an accused and a complainant. See id. (allowing evidence to help determine “whether
the actor committed the offense . . . , including testimony or evidence regarding the
nature of the relationship”); James, 623 S.W.3d at 545–46 (similar); Franco v. State, No.
08-18-00040-CR, 2020 WL 3168560, at *8 (Tex. App.—El Paso June 15, 2020, no
pet.) (not designated for publication) (“[T]he Legislature has determined under
[A]rticle 38.371 that the nature of the relationship itself is a permissible, non-
character-conformity purpose for which evidence is admissible.” (citing Fernandez v.
State, 597 S.W.3d 546, 564–66 (Tex. App.—El Paso 2020, pet. ref’d))); Mourning v.
State, No. 02-19-00168-CR, 2020 WL 6165309, at *5 (Tex. App.—Fort Worth Oct.
22, 2020, no pet.) (mem. op., not designated for publication).
Examples of admissible, extraneous-offense evidence that complies with
Article 38.371 include evidence to rebut a defensive theory, to explain why a victim of
domestic violence is reluctant to testify, to provide context for an otherwise isolated
incident or outburst of violence, to describe the circumstances surrounding the
relationship between the victim and the assailant at the time of the charged offense, or
to simply contextualize the nature of the relationship between the victim and the
assailant. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Garcia v.
State, 201 S.W.3d at 704; Williams v. State, No. 02-18-00382-CR, 2019 WL 2223214, at
*3 (Tex. App.—Fort Worth May 23, 2019, no pet.) (mem. op., not designated for
publication); Gonzalez v. State, 541 S.W.3d 306, 312 (Tex. App.—Houston [14th Dist.]
2017, no pet.). Notably, “[w]hether extraneous[-]offense evidence has relevance apart
11
from character conformity . . . is a question for the trial court.” Moses v. State, 105
S.W.3d 622, 627 (Tex. Crim. App. 2003).
Here, the trial court determined that the extraneous-offense evidence Gadsden
complains of showed the nature of his relationship with Heidi pursuant to Article
38.371(b). We conclude it was well within the zone of reasonable disagreement for the
trial court to have found in this case that the complained-of evidence was admissible
for a non-character-conformity purpose. Indeed, the extraneous-offense evidence
provided an explanation for Heidi’s failure to immediately report the November 5,
2019 assault, so the trial court could have reasonably concluded that evidence of
Gadsden’s past assaultive behavior was necessary for the jury to understand why
Heidi was “very afraid” to report the assault. See Williams, 2019 WL 2223214, at *3
(holding no abuse of discretion when trial court allowed extraneous-offense evidence
of defendant’s assault of the victim that had occurred more than ten years earlier,
given victim’s reluctance to testify against him). The trial court could have also
concluded that the extraneous-offense evidence was necessary for the jury to
understand the relationship between Gadsden and Heidi, the circumstances
surrounding their relationship at the time of the assault, his motive for assaulting her
on November 5, 2019, and his intent to commit the charged offense. See id. The
evidence likewise could have been necessary to help the jury understand this
otherwise isolated incident or outburst of violence. See id.12
Further, during voir dire, defense counsel talked about the credibility of
witnesses and discussed when and to what extent a juror must believe a witness’s
testimony. Gadsden then asserted—in his opening statement, his case in chief, and his
closing argument—that he did not assault Heidi, as she had testified, but that he only
grabbed her to stop her reckless and dangerous driving. Gadsden also cross-examined
Heidi on her alleged speeding and reckless driving, and he obtained a jury charge on
the law of necessity. Thus, the trial court could have reasonably concluded that
Heidi’s testimony of Gadsden’s past assaultive conduct and the exhibits showing the
text messages Gadsden had sent to Heidi after the assault—in which he threatened to
have their daughter deported, apologized to Heidi, and conceded that he was an
abuser—were admissible to rebut Gadsden’s theory of necessity.
In addition, the trial court gave the jury a limiting instruction regarding the
extraneous-offense evidence. “Without evidence to the contrary, we must presume
that the jury followed the trial court’s instruction.” Id. (citing Walker v. State, 300
S.W.3d 836, 850 (Tex. App.—Fort Worth 2009, pet. ref’d)).
We therefore hold that the trial court did not abuse its discretion by admitting
the extraneous-offense evidence. See Tex. Code Crim. Proc. Ann. art. 38.371(b); Tex.
R. Evid. 404(b); James, 623 S.W.3d at 546 (holding evidence concerning relationship
between accused and complainant was admissible); Mourning, 2020 WL 6165309, at
*4–5 (“The trial court therefore did not abuse its discretion by allowing the evidence
. . . as it was relevant to explaining the nature of the[] relationship.”); Tran v. State, No.
13
03-17-00155-CR, 2018 WL 3118464, at *3 (Tex. App.—Austin June 26, 2018, pet.
ref’d) (mem. op., not designated for publication) (“We conclude that the trial court
would not have abused its discretion by admitting testimony about the 1994 arrest
under Rule 404(b) because the testimony was relevant to the relationship between
[defendant] and his wife.”).
3. Admissibility under Rule 403
Within his first point of error, Gadsden also argues that even if the extraneous-
offense evidence is admissible under Rule 404(b), Rule 403 precludes its admission.
Evidence admissible under Rule 404(b) may nevertheless be excluded under Rule 403
“if its probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or
needlessly presenting cumulative evidence.” Tex. R. Evid. 403.
Rule 403 generally favors the admission of relevant evidence, and there exists a
presumption that relevant evidence is more probative than prejudicial. Jones v. State,
944 S.W.2d 642, 652 (Tex. Crim. App. 1996); Montgomery v. State, 810 S.W.2d 372, 389
(Tex. Crim. App. 1991) (op. on reh’g). To overcome this presumption, the party
opposing admission of the evidence must show that the probative value of the
evidence is substantially outweighed by the danger of unfair prejudice or by the other
dangers listed in Rule 403. James, 623 S.W.3d at 547; Wells v. State, 558 S.W.3d 661, 669
(Tex. App.—Fort Worth 2017, pet. ref’d). Trial courts must conduct a balancing test
when considering the admissibility of the evidence under Rule 403. Gigliobianco v. State,
14
210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006); Montgomery, 810 S.W.2d at 389. This
test requires the trial court to consider (1) the inherent probative force of the
proffered evidence along with (2) the proponent’s need for that evidence, and balance
those factors against (3) any tendency of the evidence to suggest a decision on an
improper basis, (4) any tendency of the evidence to confuse or distract the jury from
the main issues, (5) any tendency that a jury that has not been equipped to evaluate
the probative force of the evidence would give it undue weight, and (6) the likelihood
that presentation of the evidence will consume an inordinate amount of time or
merely repeat evidence already admitted. Gigliobianco, 210 S.W.3d at 641–42; James, 623
S.W.3d at 547.
a. Probative Value and the State’s Need for the Evidence
Probative value compares “the inherent probative force of an item of
evidence—that is, how strongly it serves to make more or less probable the existence
of a fact of consequence to the litigation . . . with the proponent’s need for that item
of evidence.” Gigliobianco, 210 S.W.3d at 641. If the State has “other compelling or
undisputed evidence to establish” what the extraneous-offense evidence “goes to
prove,” the value of the evidence is much less. Id. (relying on Montgomery, 810 S.W.2d
at 390).
Gadsden contends the probative value of the extraneous-offense evidence was
limited. Relying on James, he argues that the complained-of evidence does not have
the same “closeness in time” or similarities to the charged offense as that in James, 623
15
S.W.3d at 547. In James, we held that “the timing of the offenses [was] key” because
the complained-of evidence “concern[ed] acts that occurred during a period of less
than four months” before James’s arrest and “therefore had probative value as to his
intent to commit the charged offenses.” Id. We also held that the evidence was
probative of the nature of James’s abusive relationship with his victim, showing the
patterns of abuse and the power and control that he had over her. Id. at 548. And it
was probative to rebut the defensive theory of fabrication. Id.
Here, the extraneous-offense evidence was probative of the nature of
Gadsden’s abusive relationship with Heidi, showing the patterns of abuse and the
power and control that he had over her. See id. While some of the prior assaults and
abuse certainly did not occur “during a period of less than four months” before
Gadsden’s arrest, Heidi’s testimony indicated that the abuse worsened over the years,
which continued when they moved back to Texas in 2019—just months before this
assault. And the exhibits showing the messages Gadsden sent to Heidi after the
November 5, 2019 assault indicated that the abuse was ongoing. The complained-of
evidence helped the jury understand why Heidi did not immediately report the
November 5, 2019 assault, why she had not reported any of Gadsden’s past abusive
conduct, and why she had stayed with Gadsden. See id. It also helped the jury
understand Gadsden’s motive and his intent to commit the assault in this case, and it
explained an otherwise isolated incident or outburst of violence.
16
Additionally, the extraneous-offense evidence was probative to rebut
Gadsden’s defensive theory that Gadsden did not punch Heidi, as Heidi testified, but
that he grabbed her out of necessity. During voir dire, defense counsel talked about
judging witness credibility and whether jurors must “believe everything that [a
witness] says on the witness stand.” In the defense’s opening statement, defense
counsel indicated that the case came down to the credibility of witnesses. He told the
jury that they would hear “the rest of the story” from Gadsden, which would
ultimately show that Heidi had lied about the assault and about her own behavior that
morning. He conceded that “there was physical contact [and] pain” but contended
that “there was a reason.” He also told the jury that there was a reason Gadsden had
not been able to “give his side of the story” until trial. And Gadsden obtained a jury
charge on the law of necessity. Evidence of Gadsden’s prior assaults and abuse makes
it less likely that Gadsden merely “grabbed” Heidi out of necessity, i.e., to stop her
alleged reckless and dangerous driving. See id.; Foster v. State, No. 01-17-00537-CR,
2018 WL 1914871, at *5 (Tex. App.—Houston [1st Dist.] Apr. 24, 2018, pet. ref’d)
(mem. op., not designated for publication); Martin v. State, Nos. 02-07-309-CR–02-07-
316-CR, 2008 WL 4831345, at *12–13 (Tex. App.—Fort Worth Nov. 6, 2008, pet.
ref’d) (mem. op., not designated for publication). Therefore, the extraneous-offense
evidence showed the jury that it was less likely that Gadsden left bruises on Heidi out
of necessity.
17
For all these reasons, we hold that the probative value of the extraneous-
offense evidence was strong. See Upchurch v. State, 656 S.W.3d 170, 179 (Tex. App.—
Fort Worth 2022, no pet.); James, 623 S.W.3d at 548; Foster, 2018 WL 1914871, at *5;
Martin, 2008 WL 4831345, at *12–13.
In evaluating the State’s need for the evidence, “we consider (1) whether the
proponent has other available evidence to establish the fact of consequence that the
evidence is relevant to show, (2) the strength of the other evidence, and (3) whether
the fact of consequence is related to an issue that is in dispute.” Upchurch, 656 S.W.3d
at 179 (citing Erazo v. State, 144 S.W.3d 487, 495–96 (Tex. Crim. App. 2004)). Here,
the State had a strong need for the extraneous-offense evidence because Heidi and
Gia were the only witnesses to the charged offense, and Heidi’s credibility was
implicitly at issue. See James, 623 S.W.3d at 548; Emich v. State, No. 02-18-00059-CR,
2019 WL 311153, at *7 (Tex. App.—Fort Worth Jan. 24, 2019, pet. ref’d) (mem. op.,
not designated for publication). Gadsden avers that the State should have called
Gia—his own daughter—to testify as a witness. However, Gadsden argued to the jury
that Gia was a missing witness and that the State’s failure to call her to testify created
a presumption that, even if she had testified, her testimony would not have helped the
State’s case. This argument implicitly supported the State’s need for the extraneous-
offense evidence. And as the State points out, Gia is the daughter shared by both
Gadsden and Heidi.
18
Gadsden also asserts that the State did not have a great need for the
extraneous-offense evidence because there was physical evidence of Heidi’s injuries.
While it is true that the State presented photographs of Heidi’s bruises and that
Heidi’s sister testified to seeing the bruises firsthand, Gadsden told the jury that the
bruises were caused by his grabbing her out of necessity. With the cause of Heidi’s
“evident injuries” in dispute, the State had a strong need for the extraneous-offense
evidence, especially because Heidi’s credibility was at issue. See James, 623 S.W.3d at
548. Indeed, the State did not actually have “other compelling or undisputed evidence
to establish” what the extraneous-offense evidence was offered to prove—that is, the
nature of Gadsden and Heidi’s relationship. See Gigliobianco, 210 S.W.3d at 641(emphasis added); cf. Upchurch, 656 S.W.3d at 179–80 (distinguishing James, 523 S.W.3d
at 548).
These two factors weigh in favor of admission.
b. Tendency of the Evidence to Suggest a Decision on an
Improper Basis
Unfair prejudice “refers to a tendency to suggest [a] decision on an improper
basis, commonly, though not necessarily, an emotional one.” Gigliobianco, 210 S.W.3d
at 641. However, evidence is not excludable under Rule 403 if it is merely prejudicial,
as “all evidence against a defendant is . . . designed to be prejudicial.” Pawlak v. State,
420 S.W.3d 807, 811 (Tex. Crim. App. 2013); see Tex. R. Evid. 403. Rule 403 is thus
concerned with evidence that is unfairly prejudicial. Pawlak, 420 S.W.3d at 811.
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Gadsden argues that the evidence was highly prejudicial. Specifically, he
contends the evidence that he threatened to end adoption proceedings or to have Gia
deported portrayed him as “cruel and cold-hearted,” as well as the evidence of his
controlling behavior and prior physical abuse, which would likely prevent the jury
from evaluating the evidence “dispassionately.” “When the extraneous offense is no
more heinous than the charged offense, evidence concerning the extraneous offense is
unlikely to cause unfair prejudice.” Norwood v. State, No. 03-13-00230-CR, 2014 WL
4058820, at *5 (Tex. App.—Austin Aug. 15, 2014, pet. ref’d) (mem. op., not
designated for publication). The complained-of evidence showed the nature of the
relationship between Gadsden and Heidi, including the tactics he used to exert power
and control over her. That evidence, while prejudicial, was not unfairly so. See James,
623 S.W.3d at 549; Norwood, 2014 WL 4058820, at *5; cf. Upchurch, 656 S.W.3d at 180
(holding factor weighed in favor of defendant when complained-of evidence involved
“horrific” and “inflammatory” facts related to aggravated assault by fire).
Gadsden acknowledges that extraneous-offense evidence inherently carries the
risk that a jury will convict on an improper basis of character conformity. When the
evidence does tend to suggest a decision on an improper basis, a limiting instruction
can minimize the risk of the jury improperly relying on it in reaching its verdict. James,
623 S.W.3d at 549; Flores v. State, No. 03-19-00489-CR, 2020 WL 3887976, at *4 (Tex.
App.—Austin July 9, 2020, no pet.) (mem. op., not designated for publication).
Gadsden argues, however, that because the trial court did not give a limiting
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instruction when the evidence came in, there was an enhanced risk that the jury would
consider the evidence as character-conformity evidence and give it undue weight.
However, Gadsden cites no authority requiring the trial court to give the limiting
instruction multiple times. The trial court included a written limiting instruction in its
jury charge. We presume that the jury followed the trial court’s limiting instruction. See
Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005); James, 623 S.W.3d at 549.
Gadsden does not attempt to rebut this presumption. See Thrift, 176 S.W.3d at 224.
Accordingly, we hold that this third factor weighs in favor of admission.
c. Tendency of the Evidence to Confuse or Mislead the Jury
Confusion of the issues alludes to the likelihood that the evidence would
confuse the jury or distract it from the case’s central issues. Gigliobianco, 210 S.W.3d at
641. “Evidence that consumes an inordinate amount of time to present . . . might tend
to confuse or distract the jury . . . .” Id. Misleading the jury refers to a tendency of an
item of evidence to be given undue weight by the jury. Id.Gadsden argues that the complained-of evidence distracted the jury from the
main issue. According to Gadsden, this was “a simple he-said, she-said case,” and the
jury could have determined “whether to believe [Heidi’s] story that [Gadsden]
punched her or Gadsden’s story that he grabbed her” without the complained-of
evidence. The State contends the evidence did not confuse or distract the jury but
rather provided a better picture of the cycle of violence between Gadsden and Heidi,
which helped to explain Heidi’s actions on the day of the assault. Further, the
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evidence consumed a large portion of Heidi’s testimony only because it was
intertwined with the history of Gadsden and Heidi’s marriage and Gia’s adoption.
And the State argues that the evidence was not scientific or complex but instead came
in the form of Heidi’s testimony as a lay witness. We agree with the State. See Upchurch,
656 S.W.3d at 181; James, 623 S.W.3d at 550; Emich, 2019 WL 311153, at *7.
Gadsden was arraigned on the charges in the jury’s presence. The trial court
issued a written limiting instruction prescribing how the jury should use the
extraneous-offense evidence, if at all. Moreover, the jury charge and verdict forms
made clear that the jury’s job was to determine whether Gadsden was guilty or not
guilty of the charged offense. We hold that these factors weigh in favor of admission.
d. Likelihood of Undue Delay and Needless Repetition
This factor focuses on how efficient the trial is and not on the risk of an
erroneous verdict. Gigliobianco, 210 S.W.3d at 641. Heidi was the only witness to testify
to the extraneous-offense evidence, and the length of the testimony was related to the
history of Gadsden and Heidi’s marriage and Gia’s adoption. Moreover, Gadsden
concedes that this factor does not weigh against admissibility of the evidence or that it
does so only slightly. We agree.
e. Resolution
Balancing all six factors, we hold that the trial court did not abuse its discretion
by determining that the probative value of the extraneous-offense evidence was not
substantially outweighed by the risk of “unfair prejudice, confusing the issues,
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misleading the jury, undue delay, or needlessly presenting cumulative evidence.” Tex. R.
Evid. 403; see James, 623 S.W.3d at 551; Flores, 2020 WL 3887976, at *5. All the
Gigliobianco factors favor admission of the extraneous-offense evidence. See 210 S.W.3d
at 641–42. The probative value of the evidence was high because it rebutted Gadsden’s
theory of necessity and showed the nature of Gadsden’s abusive relationship with
Heidi. It helped the jury understand why Heidi did not immediately report the
November 5, 2019 assault, why she had not reported any of Gadsden’s past abusive
conduct, and why she had stayed with Gadsden. See id. It also helped the jury
understand Gadsden’s motive for the assault and his abusive behavior and explained an
otherwise isolated incident or outburst of violence. For the same reasons, and because
Heidi’s credibility was implicitly at issue, the State’s need for the evidence was high.
Gadsden failed to meet his burden of proof to establish that the evidence
confused or misled the jury. The extraneous-offense evidence was not unduly
prejudicial, and the trial court’s limiting instruction sufficiently diminished the risk
that the evidence had the potential to sway the jury to improperly convict Gadsden
based on character conformity. We overrule Gadsden’s first point of error.
C. Admissibility of Expert Testimony and Exhibits
In his second point of error, Gadsden contends that the trial court abused its
discretion by allowing the State to present Hensley’s expert testimony and exhibits
related to the dynamics of domestic violence because the evidence was not sufficiently
tied to the facts of the case to be relevant to aid in the jury’s decision. The State
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argues that, because Gadsden did not raise this specific objection in the trial court, the
point of error is unpreserved for our appellate review. Assuming, without deciding,
that Gadsden’s second point of error is preserved for appellate review, we hold that
the trial court did not abuse its discretion by admitting Hensley’s expert testimony and
the accompanying exhibits.
1. Applicable Law
Rule 702 governs the admissibility of expert testimony. Tex. R. Evid. 702.
Under Rule 702, 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 [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. Thus,
expert testimony may be admitted only if (1) the witness qualifies as an expert by
reason of her knowledge, skill, experience, training, or education; (2) the testimony’s
subject matter is appropriate for expert testimony; and (3) admitting the expert
testimony will aid the factfinder in deciding the case. Rhomer, 569 S.W.3d at 669.
These conditions are known as (1) qualification, (2) reliability, and (3) relevance. Id.On appeal, Gadsden challenges only relevance.
2. Relevance of the Expert Testimony
Gadsden argues that Hensley’s testimony about the dynamics of domestic
violence was not relevant because this case was straightforward and because the
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testimony covered dynamics of abuse not tied to the facts of this case or applicable to
Gadsden and Heidi’s relationship.
At Gadsden’s trial, Hensley testified as follows about domestic violence, the
cycle of violence, and the power-and-control wheel:
• Domestic violence involves power and control.
• Abuse is rooted in power and control.
• Abusers use physical and sexual abuse, emotional abuse, intimidation,
coercion, threats, isolation, male privilege, minimizing, denial, blame, and
even their children to maintain power and control.
• The power-and-control wheel is a tool used to demonstrate domestic
violence.
• The center of the wheel is power and control, and each spoke of the
wheel represents the different tactics used by abusers to exert power and
control over their partner in the relationship.
• The abuser in an abusive relationship may threaten to take children away
from the victim or use immigration issues to exert power and control.
• Emotional abuse includes name-calling, making the victim feel
worthless, and making the victim feel like the abuse is their fault.
• Coercion involves getting the victim to do something she may not want
to do by using threats, including, for example, threatening the victim that
she would be charged with kidnapping if she left with a child.
• Isolation limits a victim’s ability to leave the relationship.
• Abusers may require the victim to seek permission to use money, which
is a common tactic used to exert power and control.
• Many victims describe their abuser as having strict, rigid beliefs about
gender roles in their relationship in which the abuser is the master of the
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castle and the victim’s role is to be submissive and to care for the
children in the home.
• The cycle of violence consists of a circular pattern of three phases:
tension building, explosion or violence, and honeymoon.
• The cycle repeats over time and can look different throughout the same
relationship over time.
• A complete cycle can occur in a day or may take years to complete.
• During the honeymoon phase, the abuser may apologize and promise to
change, which gives the victim a sense of false hope.
• The victim of domestic violence is often fearful and typically does
whatever she can to just maintain peace in their relationship.
• It is common for victims of domestic violence to choose to not report
abuse to the police out of fear of retaliation by the abuser.
• There are common traits that occur in most domestic-violence
relationships.
The testimony was relevant. “The average juror will not typically be familiar
with the effect of domestic violence on victims and the dynamics of the relationship
between an abuser and victim.” James, 623 S.W.3d at 554 (citing Fernandez v. State, No.
02-18-00483-CR, 2020 WL 1057323, at *4 (Tex. App.—Fort Worth Mar. 5, 2020, pet.
ref’d) (mem. op., not designated for publication)). And Gadsden concedes that the
cycle of violence and the power-and-control wheel are generally accepted terms and
tools used by experts to explain the domestic-violence relationship.
While the expert “must make an effort to tie pertinent facts of the case to the
scientific principles [that] are the subject of [her] testimony,” hypothetical facts that
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“mirror” or “parallel” the facts of the case are sufficient. Tillman v. State, 354 S.W.3d
425, 438–39 (Tex. Crim. App. 2011). Here, several hypotheticals to which Hensley
applied her theories and opinions mirrored the facts of this case. For example, one
hypothetical in which Hensley explained that an abuser may threaten to take a child
away or use immigration issues to exert power and control over the victim mirrored
Heidi’s experiences with Gadsden’s threats that he would stop Gia’s adoption, which
would interfere with Gia’s immigration, and that Gia would be deported. Similarly,
Hensley’s testimony that an abuser may threaten to report the victim for kidnapping
as a coercion tactic parallels Gadsden’s threats to accuse Heidi of kidnapping Gia.
Several other hypotheticals paralleled the emotional abuse that Heidi described, such
as Gadsden’s name-calling, cursing at her, twisting things around, and making her feel
like the abuse was her fault because, for example, she had scratched his car mirror or
had ignored his phone calls.
Further, Hensley’s testimony describing an abuser’s strict, rigid ideas that there
are gender roles in the relationship and that the victim’s role is to be submissive is
identical to Heidi’s role in her relationship with Gadsden, including his getting angry
with her for not doing his laundry, his forcing her to perform sexual acts and “wear
things,” and her ultimately becoming his “servant.” Other examples where Hensley’s
testimony describing the common traits of a domestic-violence relationship mirrors
the facts of this case include Gadsden’s control over Heidi’s access to money, Heidi’s
isolation while she lived in Mexico with Gadsden and Gia, Gadsden’s abusive phone
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calls and text messages, Heidi’s fear, and Gadsden’s apology and promise to “pay for
it for the rest of [his] life.” Thus, Hensley’s testimony was sufficiently tied to the facts
of this case. See id.While we agree with Gadsden to the extent that Heidi’s testimony did not
identify every aspect of power and control or describe in great detail each phase of the
cycle of violence, we do not agree that such testimony was required for Hensley’s
expert testimony to be relevant. Rule 702 requires that an expert’s testimony “take
into account enough of the pertinent facts to be of assistance to the trier of fact.” Jordan
v. State, 928 S.W.2d 550, 556 (Tex. Crim. App. 1996) (emphasis added). Hensley’s
testimony was sufficiently tied to the facts of the case to meet the simple requirement
that it be “helpful” to the jury. See id. Indeed, “[t]hat some facts were not taken into
account by the expert is a matter of weight and credibility, not admissibility.” Id.Similarly, that Heidi’s testimony about her relationship with Gadsden did not
incorporate every “topic” of Hensley’s testimony on the dynamics of domestic
violence is a matter of weight and credibility, not admissibility. See id.Hensley’s testimony was relevant to help the average juror understand the
dynamics of the relationship between Gadsden and Heidi, why Heidi would stay in an
abusive relationship for so many years, why she had not reported any of his past
abusive conduct, and why she did not immediately report the November 5, 2019
assault. For all these reasons, the trial court did not abuse its discretion by allowing
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Hensley’s expert testimony. See James, 623 S.W.3d at 555. We overrule Gadsden’s
second point of error.
III. Conclusion
Having overruled Gadsden’s two points of error, we affirm the trial court’s
judgment.
/s/ Wade Birdwell
Wade Birdwell
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: March 23, 2023
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