Christopher Wayne McDonnell v. State of Texas ( 2023 )

Opinion issued July 20, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-21-00691-CR
———————————
CHRISTOPHER WAYNE MCDONNELL, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the County Court
Colorado County, Texas
Trial Court Case No. 25734
OPINION
A jury convicted appellant, Christopher Wayne McDonnell, of assault
causing bodily injury against a family member, a class A misdemeanor.1 The trial
court assessed McDonnell’s punishment at one year’s confinement in the county
1
See TEX. PENAL CODE § 22.01(a)(1), (b), (b–3).
jail, with all but two consecutive weeks to be probated for two years. In three
issues, McDonnell argues that the trial court abused its discretion (1) in denying
his request for a mistrial; (2) by permitting the State to introduce evidence that he
had previously threatened and assaulted the complainant; and (3) in finding that the
probative value of extraneous evidence was not substantially outweighed by the
danger of unfair prejudice.
We affirm.
Background
McDonnell married the complainant in this case, N. Orsak, in 2006.
Sometime prior to May 2019, McDonnell and Orsak separated and Orsak filed for
divorce. On May 4, 2019, Orsak had spent part of the day with her and
McDonnell’s minor son and some of her son’s friends before returning their son to
McDonnell’s home. Orsak dropped their son off and picked McDonnell up so that
they could attend a Kentucky Derby party together.
Orsak testified that McDonnell had already had some drinks before they left
his house for the party. At the party, she and McDonnell both had drinks. Orsak
testified that McDonnell “had at least two mint juleps [at the party] and then he
switched to just straight bourbon.” According to Orsak, McDonnell accused her of
hitting on another guy at the party and told her that she was embarrassing him.
Orsak stated that McDonnell “was slurring his words and he was drunk,” so she
2
decided it was time for them to leave. Orsak drove and McDonnell sat in the
passenger seat.
Orsak testified that, on the drive home, McDonnell proceeded “to cuss at
[her] and call [her] a slut and a whore.” She stated that McDonnell threw a 20-
ounce YETI tumbler full of ice water at the side of her face. She was trying to
drive and asked him to stop, but he picked up a smaller YETI tumbler cup and
threw that at her face as well. After it struck the side of her face, McDonnell told
Orsak, “I don’t think that was hard enough,” and threw it again, aiming for her
window. McDonnell then struck her with his arm and the back of his hand, and he
pulled her hat off of her head and struck her with that as well. She stopped the car
and told him to get out, but he would not exit the vehicle. She drove the rest of the
way to his home, where he continued to yell at her. He asked for her phone, telling
her he was going to read her text messages because he believed she was “texting
all these men.” Once he had her phone, he exited the car and went into his home.
Orsak testified that after McDonnell left her car, her “face was hurting so
bad.” She decided to go to the doctor because, “when he hit me before I had
broken a bone in my face.” McDonnell objected to this testimony, and the trial
court sustained the objection. The trial court granted McDonnell’s request for an
instruction to the jury to disregard, but it denied his request for a mistrial.
3
Orsak went on to testify that she drove to the emergency room. She testified
that the YETI cup and McDonnell’s hand had caused “a lot of pain” when they
struck her. However, her “x-rays did not show any broken bones.” The emergency
room staff called the police and Orsak reported the assault.
On cross-examination, Orsak acknowledged that she attended an Astros
game with McDonnell and their son four days after the incident. Orsak testified
that it was their son’s thirteenth birthday, and they had the game planned “for quite
some time.” Several days after the assault, she also celebrated Mother’s Day with
McDonnell, their son, and both her and McDonnell’s mothers, which, again, had
been planned since before the assault. Orsak also acknowledged that she picked
McDonnell’s car up after he was arrested in connection with the assault and posted
bond using his money so that he could be released from jail. She stated that she did
this because their son asked her “to help his dad out” and she wanted “to do
anything [she could] to try to preserve some version of a family for him.”
Finally, Orsak acknowledged that she went on a vacation with McDonnell a
couple of months after the assault. She testified that she did so because she “just
wanted to try to make things work, whether it worked as being separated and
friendly, I—I—I don’t know, I just wanted to try to make peace.” She stated that
she was “afraid to not have things be peaceful” and that she was “very afraid” of
McDonnell. Orsak testified that, despite the issues in their marriage and the fact
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that she had filed for divorce, she had still hoped that they might work things out.
She further testified that, even though they were divorced at the time of trial, she
would still have to “deal with” McDonnell “forever” because they have a child
together.
As part of his cross-examination, McDonnell’s attorney presented evidence,
including photographs, of the various outings and communications between
McDonnell and Orsak following the assault. The State objected repeatedly, arguing
that the evidence was not relevant and asserting that it called Orsak’s credibility
into question. The State argued that, if McDonnell was allowed to introduce
evidence of their ongoing relationship, then the State should be permitted to
present evidence of other times that McDonnell had assaulted Orsak as well as
expert testimony on the common responses to domestic violence. The trial court
denied the State’s objections in connection with the photographs and testimony of
the ball game, Mother’s Day event, and vacation.
McDonnell’s attorney also presented an email from Orsak to McDonnell that
contained information she had found for him to help him enter his plea of not
guilty in this case. McDonnell also sought to introduce into evidence an email in
which Orsak stated that she would buy a gun for McDonnell to replace one that she
had taken with her when they separated. The State again objected, and the trial
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court ruled that it would admit the email, “but I’m going to allow [the State] to go
into a little further extraneous information to explain the possible relationship.”
The trial court provided a limiting instruction on the record, and the State
questioned Orsak about whether McDonnell had assaulted her prior to the May 4,
2019 incident. She testified that he had assaulted her “[m]ore than ten [times]—
numerous” times. Orsak eventually described two specific incidents—one in which
he pushed her, and another in which he punched her in the face. She testified that
she had filed a police report regarding an incident that had occurred in 2016.
Orsak further testified that McDonnell had threatened her and asked her not
to testify against him in this case. The State presented screenshots of text messages
that McDonnell had sent to Orsak in 2021, prior to the trial. The text messages
included sexually-explicit pictures that McDonnell threatened to show to the court
and to her current and former boyfriends. Orsak stated that she “knew at the time
they came in late that night, that [McDonnell] was threatening me to not testify
because he was going to show these kinds of pictures to the Court to make me look
bad.” Orsak testified about another threat made by McDonnell in 2021, testifying
that he told her “that now that he didn’t have a divorce attorney who had been
keeping him with a muzzle, that he was going to do everything he could to destroy
me, now and even after this court case was over, that it would never end.”
6
In addition to Orsak’s testimony, the State provided testimony from M. Hill,
an expert regarding common characteristics of battered women. She provided
general information about the reasons abused women stay with their abusers and
the reasons they sometimes recant allegations or request that criminal charges be
dismissed.
McDonnell’s father, Wayne McDonnell, testified that he attended the Astros
games with McDonnell, Orsak, and their son. He stated that Orsak was friendly,
she did not say that she had been assaulted, and he did not observe any bruising or
injuries. Orsak’s mother testified that she had observed that McDonnell got angry
when he was intoxicated and that she had seem him angry on “many occasions.”
She stated that McDonnell could be “[v]ery loud, just loud language, abusive, loud
talking, very angry,” and he would direct this anger at Orsak. She described one
occasion in which she heard McDonnell and Orsak arguing in the next room, then
she heard something being thrown, and then observed that Orsak’s “mouth was
bleeding” when she saw her.
McDonnell himself testified, stating that he had “a lot” to drink the day of
the Kentucky Derby party. He testified that he and Orsak had a verbal altercation
that started when she “lit into” him about something. He denied striking Orsak. He
testified that he remembered a YETI cup, however, because Orsak used one to
break the window of his vehicle on a prior occasion.
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He testified that Orsak left her phone with him and wrongly accused him of
taking it. When he told her he did not have it, she “went ballistic,” destroying a
pair of his sunglasses, a hat, and his key fob. He found her phone the next morning
after he was sober and returned it to her. He testified that he did not assault Orsak.
The jury charge included an instruction regarding extraneous-offense
testimony:
During the trial, you heard evidence that the defendant may have
committed wrongful acts not charged in the information. The other
wrongful acts, being alleged assaults, other than charged in the
information. The state offered the evidence to contextualize the nature
of the relationship between the victim and the defendant and to show
the defendant’s consciousness of guilt. You are not to consider that
evidence at all unless you find, beyond a reasonable doubt, that the
defendant did, in fact, commit the wrongful act. Those of you who
believe the defendant did the wrongful act may consider it.
Even if you do find that the defendant committed a wrongful
act, you may consider this evidence only for the limited purpose I
have described. You may not consider this evidence to prove that the
defendant is a bad person and for this reason was likely to commit the
charged offense. In other words, you should consider this evidence
only for the specific, limited purpose I have described. To consider
this evidence for any other purpose would be improper.
The jury found McDonnell guilty. McDonnell now challenges the trial court’s
denial of his motion for mistrial and admission of extraneous-offense evidence that
he had assaulted and threatened Orsak on other occasions beside the incident with
which he was charged in this case.
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Denial of Mistrial
In his first issue, McDonnell argues that the trial court abused its discretion
in denying his motion for mistrial in connection with Orsak’s unprompted
statement that “when [McDonnell] hit me before I had a broken bone in my face.”
A. Standard of Review
We review the denial of a motion for mistrial for an abuse of discretion.
Balderas v. State, 517 S.W.3d 756, 783 (Tex. Crim. App. 2016); Archie v. State,
221 S.W.3d 695, 699 (Tex. Crim. App. 2007). In applying an abuse-of-discretion
standard of review, we uphold the trial court’s decision to deny a mistrial “if it was
within the zone of reasonable disagreement.” Archie, 221 S.W.3d at 699 ; see also
Griffin v. State, 571 S.W.3d 404, 416 (Tex. App.—Houston [1st Dist.] 2019, pet.
ref’d). In determining whether a trial court abused its discretion by denying a
mistrial, we balance three factors: (1) the severity of the misconduct (including its
prejudicial effect), (2) the effectiveness of the curative measures taken, and (3) the
certainty of the conviction or punishment assessed absent the misconduct. Hawkins
v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). We reverse only if no
reasonable view of the record could support the trial court’s ruling. See McQuarrie
v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012).
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B. Analysis
As the State questioned Orsak about the night of the assault, the prosecutor
asked, “And what did you do when you left the house [after dropping McDonnell
off following the assault]?” Orsak answered, “I—my face was hurting so bad,
my—when he hit me before I had broken a bone in my face before, so I said I’m
going to go to the doctor.” McDonnell objected, pointing out that the trial court
had ordered that the parties not bring up extraneous offenses without approaching
the court, “and the witness has just blurted a prior incident where she alleges he
broke her bone.” The State responded that the reference to a prior assault was
“inadvertent.”
The trial court ruled that it would instruct the jury to disregard Orsak’s
statement, and McDonnell’s counsel asked for a curative instruction and requested
“a mistrial based on witness misconduct.” The trial court denied the motion for
mistrial, but it instructed the jury to disregard Orsak’s statement about the prior
incident:
What you just heard from this witness about a prior act is not to be
considered by you, it’s not to be thought of or talked about during
your deliberations. It’s going to be part of this record; however, it
does not concern what is on trial here today, and that is only the
offense that [the State] read to you in the information at the beginning
of this trial. That is what the defendant is accused of in this matter,
nothing else today. So confine your thoughts, your deliberations, all of
your efforts in this matter only to what is in the information that the
defendant is accused of formally and on trial for today. Do you
understand that completely? Anyone have any question about that?
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No one in the jury voiced any questions or concerns, and the trial continued.
McDonnell argues that the trial court abused its discretion in denying his
motion for mistrial following Orsak’s spontaneous statement that McDonnell had
struck her before and had broken a bone in her face. We conclude, however, that
any prejudice caused by Orsak’s comment was cured by the trial court’s instruction
to the jury to disregard her statement. The conduct in the case was not very severe.
Orsak’s statement was unsolicited and unresponsive to the State’s question. Her
statement was short, and it did not involve an extensive amount of testimony. See
Hawkins, 135 S.W.3d at 77 (holding that one factor court to consider in
determining whether trial court erred in denying mistrial is severity of
misconduct).
Following McDonnell’s objection, the jury was immediately instructed to
disregard Orsak’s statement. See id. (holding that courts should consider
effectiveness of curative measures taken). “Ordinarily, a prompt instruction to
disregard will cure error associated with an improper question and answer, even
one regarding extraneous offenses.” Ovalle v. State, 13 S.W.3d 774, 783 (Tex.
Crim. App. 2000); Hernandez v. State, 454 S.W.3d 643, 649–50 (Tex. App.—
Houston [1st Dist.] 2014, pet. ref’d). Nothing in the record demonstrates that the
jury was confused about the trial court’s instruction to disregard or that the jurors
failed to follow it. See Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App.
11
2009) (holding that “[i]nstructions to the jury are generally considered sufficient to
cure improprieties that occur during trial” and that courts “generally presume that a
jury will follow the judge’s instructions”).
McDonnell argues that witness credibility was especially important in this
case because his and Orsak’s accounts of the events differed. He asserts that he
was harmed by her testimony that he had previously broken a bone in her face
“because his credibility was sullied before he even testified.” This argument
disregards the fact that the evidence of the volatile nature of their relationship was
introduced through other testimony as the trial progressed and before he testified
on his own behalf. This included testimony that McDonnell had assaulted Orsak on
numerous other occasions and evidence that Orsak had filed a police report against
McDonnell on at least one other occasion.
Granting a motion for mistrial is appropriate only when “the objectionable
events are so emotionally inflammatory that curative instructions are not likely to
prevent the jury from being unfairly prejudiced against the defendant.” Archie v.
State, 340 S.W.3d 734, 739 (Tex. Crim. App. 2011); see also Hawkins, 135
S.W.3d at 77 (holding that mistrial is remedy for improper conduct that is “so
prejudicial that expenditure of further time and expense would be wasteful and
futile”). In light of the limited nature of Orsak’s remark and the additional
evidence of McDonnell’s prior abuse of Orsak, we cannot say that Orsak’s
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unsolicited statement played a significant role in the jury’s decision to convict
McDonnell despite the trial court’s instruction to disregard, nor was it so highly
prejudicial and incurable that the trial court erred by denying the motion for
mistrial. See Hernandez, 454 S.W.3d at 650; see also Hawkins, 135 S.W.3d at 77(holding that courts should consider certainty of conviction absent misconduct).
We overrule McDonnell’s first issue.
Extraneous-Offense Evidence
In his second and third issues, McDonnell argues that the trial court erred in
allowing evidence that McDonnell had previously threatened and assaulted Orsak.
A. Standard of Review
We review the trial court’s ruling on the admissibility of evidence for an
abuse of discretion, and we will not reverse if it is within the zone of reasonable
disagreement. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011).
In general, relevant evidence is admissible. TEX. R. EVID. 402. Relevant
evidence is evidence that tends to make a fact of consequence more or less
probable than it would be without the evidence. TEX. R. EVID. 401; see Shuffield v.
State, 189 S.W.3d 782, 786–87 (Tex. Crim. App. 2006).
Evidence of a crime, wrong, or act other than the offense charged is not
admissible to prove that the defendant acted in conformity with his character but
may be admissible for other purposes. TEX. R. EVID. 404(b)(1) (“Evidence of a
13
crime, wrong, or other act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in accordance with the
character.”); see also Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App.
2011); Robles v. State, 85 S.W.3d 211, 213 (Tex. Crim. App. 2002) (evidence of
extraneous offenses is normally inadmissible). However, such evidence may be
admissible when it has “relevance apart from character conformity,” such as
proving “motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” TEX. R. EVID. 404(b)(2); see also Devoe,
354 S.W.3d at 469.
In addition to Rule 404(b), Texas Code of Criminal Procedure article 38.371
applies in family-violence cases and permits the introduction of evidence “of all
relevant facts and circumstances that would assist the trier of fact in determining
whether the actor committed the offense.” TEX. CODE CRIM. PROC. art. 38.371(b).
This includes the admission of evidence “regarding the nature of the relationship
between the actor and the alleged victim.” Id. While the provision expressly states
that it is “subject to the Texas Rules of Evidence [and] other applicable law,” and
that “[t]his article does not permit the presentation of character evidence that
would otherwise be inadmissible under the Texas Rules of Evidence or other
applicable law,” see id. art. 38.371(b)-(c), courts have held that article 38.371
“expressly provides for the admission of extraneous offense evidence regarding the
14
nature of the relationship between an accused and a complainant.” James v. State,
623 S.W.3d 533, 545 (Tex. App.—Fort Worth 2021, no pet.). “Areas of relevant
and admissible extraneous-offense evidence that complies with article 38.371,” and
that serve non-character-conformity purposes in compliance with Rule 404(b),
“include evidence that: (1) explains why a victim of domestic violence is unwilling
to cooperate with prosecution; (2) confirms the victim’s initial—and later
recanted—statements to police; or (3) contextualizes the nature of the relationship
between victim and assailant.” Fernandez v. State, 597 S.W.3d 546, 565 (Tex.
App.—El Paso 2020, pet. ref’d) (citing Gonzalez v. State, 541 S.W.3d 306, 312
(Tex. App.—Houston [14th Dist.] 2017, no pet.)); see Camacho v. State, No. 01-
20-00282-CR, 2021 WL 2832970, at *6 (Tex. App.—Houston [1st Dist.] July 8,
2021, no pet.) (mem. op., not designated for publication).
Even when evidence is relevant or admissible under Rule 404(b) or another
rule of evidence, a court may nevertheless exclude the evidence “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. To determine
whether to admit or exclude evidence over a Rule 403 objection, the trial court
must balance the following factors:
(1) the inherent probative force of the proffered item of evidence
along with (2) the proponent’s need for that evidence against (3) any
15
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 a significant amount of time or merely repeat
evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).
B. Analysis
McDonnell argues that the trial court abused its discretion by admitting
evidence that he had previously assaulted Orsak and that he had threatened her
with regard to her testimony in this case. The trial court originally excluded any
testimony or reference to other assaults or threats that McDonnell had allegedly
made against Orsak. As the trial progressed, however, McDonnell’s theory of the
case was that Orsak was lying about the assault as evidenced by their on-going
relationship. After McDonnell sought to introduce an email from Orsak in which
she provided McDonnell with a form that he could use to enter his plea of not
guilty in this case and another email in which she offered to replace a gun that she
had taken with her when they separated, the State re-urged its motion “to be
allowed to offer extraneous offense evidence.”
The State argued that by offering evidence of Orsak’s and McDonnell’s
continued interactions, McDonnell was essentially arguing that her testimony
about the assault was not believable and opened the door for the State to rebut that
16
evidence with extraneous-offense evidence and with evidence from the expert
regarding why abused women sometimes returned to their abusers and why they
would recant allegations or seek to have criminal charges dismissed. McDonnell
objected under Rules of Evidence 403 and 404(b) and article 38.371. The trial
court overruled McDonnell’s objections, but it agreed to give a limiting instruction
both when the testimony was given and in the charge.
The trial court admonished the jury on the record, prior to introduction of the
testimony, that it would hear evidence of other wrongful acts McDonnell “may
have committed” in order to “contextualize the relationship between [Orsak] and
[McDonnell].” The trial court gave a verbal instruction that the jury was not to
consider the evidence of those wrongful acts unless it found beyond a reasonable
doubt that McDonnell committed them and that such evidence could only be
considered for the limited purpose of contextualizing the relationship, not to prove
that McDonnell is a bad person and was therefore more likely to commit the
charged offense.
Orsak then testified that McDonnell had assaulted her “[m]ore than ten
[times]—numerous” times. Orsak eventually described two specific incidents—
one in which he pushed her, and another in which he punched her in the face. She
testified that she had filed a police report regarding an incident that had occurred in
2016. The trial court’s instructions about the extraneous offenses were likewise
17
included in the jury charge. Orsak testified that McDonnell threatened to send
sexually-explicit pictures of her to the court and to current or former boyfriends
because she was planning to testify against him, and he threatened to “destroy” her.
When it sought to admit this evidence, the State argued that the evidence
was necessary under article 38.371(b) to contextualize the relationship between
McDonnell and Orsak and to rebut the defensive theory that Orsak was lying about
the assault because she repeatedly continued to associate with and communicate
with McDonnell following the assault. We agree with the State. Evidence of
McDonnell’s prior assaults and threats against Orsak were “relevant facts and
circumstances that would assist the trier of fact in determining whether
[McDonnell] committed the offense” because it illuminated “the nature of the
relationship between [McDonnell and Orsak.]” See TEX. CODE CRIM. PROC. art.
38.371(b). The evidence of McDonnell’s prior assaults and threats falls within the
type of evidence courts have recognized as falling under both article 38.371 and
Rule 404(b). See Fernandez, 597 S.W.3d at 565 (article 38.371 permits admission
of evidence “that: (1) explains why a victim of domestic violence is unwilling to
cooperate with prosecution; (2) confirms the victim’s initial—and later recanted—
statements to police; or (3) contextualizes the nature of the relationship between
victim and assailant”); Gonzalez, 541 S.W.3d at 312 (same); see also De La Paz v.
State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009) (holding that one well-
18
established rationale for admitting evidence of extraneous misconduct under Rule
404(b) is to rebut defensive theory that negates element of offense). We conclude
that the trial court did not abuse its discretion in concluding that this evidence was
admissible pursuant to Rule 404(b) or article 38.371.
We likewise conclude that the trial court did not abuse its discretion in ruling
that this evidence was admissible under Rule 403. McDonnell argues that the
evidence’s probative value was substantially outweighed by the danger of unfair
prejudice. Considering the elements of the Rule 403 balancing test, we disagree.
The probative force of the evidence of McDonnell’s other bad acts, including prior
assaults and threats against Orsak, was particularly relevant here where the
credibility of the witnesses was a central issue in the case. Orsak’s need for the
evidence was increased by evidence McDonnell admitted showing that, despite her
allegation of assault, she continued to associate with and communicate with him.
See Gigliobianco, 210 S.W.3d at 641–42 (setting out elements of Rule 403
balancing test).
The extraneous acts introduced into evidence did not have a tendency to
confuse or distract the jury, as the prior assaults and threats were related to the
charged offense in this case. The evidence was not cumulative because the
repeated nature of the abuse over time showed the complete picture of the
relationship. See Camacho, 2021 WL 2832970, at *8. The evidence pertained to
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McDonnell’s history of abuse against Orsak, her fear, and her reasons for her
ongoing contact with McDonnell despite her allegations of assault. See James, 623
S.W.3d at 547–48.
Presenting the extraneous evidence did not take an inordinate amount of
time. See Hernandez v. State, 203 S.W.3d 477, 481 (Tex. App.—Waco 2006, pet.
ref’d) (upholding admission of extraneous-offense evidence over Rule 403
objection when it took less time to develop extraneous offense than charged
offense). Finally, the evidence of the extraneous bad acts was similar to the
charged assault, both including verbal threats and physical contact. The trial court
gave limiting instructions on the record when the evidence was admitted and in the
jury charge, and we presume the instructions mitigated any potential the evidence
had to irrationally affect the jurors. See James, 623 S.W.3d at 549. Appellant failed
to rebut this presumption. Id.
We conclude that the trial court did not abuse its discretion in admitting
evidence of McDonnell’s extraneous bad acts. We overrule McDonnell’s second
and third issues.
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Conclusion
We affirm the judgment of the trial court.
Richard Hightower
Justice
Panel consists of Justices Hightower, Rivas-Molloy, and Farris.
Publish. TEX. R. APP. P. 47.2(b).
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