Opinion issued February 13, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NOS. 01-19-00151-CR
01-19-00153-CR
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JEREMY L. JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Case No. 1551898 & 1551899
MEMORANDUM OPINION
A jury convicted appellant, Jeremy L. Jones, of aggravated assault of a
person with whom he has or has had a dating relationship1 and aggravated assault,2
1
Trial court number 1551898, appellate court number 01-19-00151-CR. The
complainant in this case is Angela Garcia.
and the trial court assessed punishment at 38 years’ confinement and 20 years’
confinement, respectively. In two issues, appellant contends that the trial court
erred by: (1) admitting evidence in both cases of a telephone call appellant made
from jail over his Texas Rule of Evidence 403 objection and (2) refusing to charge
the jury on the lesser-included offense of aggravated assault in the aggravated-
assault-of-a-family-member case. We affirm.
BACKGROUND
Appellant and Angela Garcia dated for some time, and, even after they broke
up, they maintained a casual, sexual relationship. However, when Angela began
dating Damarcus Jones, she attempted to sever ties with appellant completely, and
he began threatening her. In April 2017, Angela spoke with police about
appellant’s threats, but she heard nothing further from the police about the matter.
In the early morning hours of May 14, 2017, appellant broke through the
backdoor of Angela’s apartment and shot her and Damarcus while they lay in bed.
Both Angela and Damarcus suffered serious injuries, and both identified appellant
as the shooter. Appellant was charged with aggravated assault of a person with
2
Trial court number 1551899, appellate court number 01-19-00153-CR. The
complainant in this case is Damarcus Jones.
2
whom he has had a dating relationship for shooting Angela3 and aggravated assault
for shooting Damarcus.4
RULE 403 OBJECTION
In his first issue, appellant contends that the trial court erred by permitting
the State to introduce evidence of a jailhouse telephone call from appellant to a
friend over appellant’s objection under Texas Rule of Evidence 403.
Background
At trial, Daniel Miller, who was appellant’s friend and Angela’s brother,
testified about a telephone call that he received from appellant while appellant was
in jail.5 Daniel identified the State’s recording of the call, Exhibit 13, as a true and
correct recording of a conversation between appellant and him. On the tape, there
is some discussion between Daniel and appellant about whether “she” will be at an
upcoming court appearance, after which appellant says, “I’m definitely not f–-king
with her no more.” Daniel says, “You’ve learned your lesson,” and appellant
responds, “Yeah, I definitely won’t do that no more.” Before the tape was
admitted, appellant’s counsel objected that the tape was “more prejudicial than
probative” and should be excluded pursuant to Texas Rule of Evidence 403. The
3
See TEX. PENAL CODE § 22.02 (a), (b).
4
See TEX. PENAL CODE § 22.02 (a).
5
The telephone call was edited such that it did not reveal to the jury that it was
made from the jail.
3
trial court overruled appellant’s objection, and admitted the tape of the telephone
call.
Standard of Review and Applicable Law
We review a trial court’s ruling to admit or exclude evidence for an abuse of
discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). A
trial court abuses its discretion when its ruling falls outsize the zone of reasonable
disagreement. Id.
Under Rule 403, “[t]he court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of . . . unfair prejudice, confusing the
issues, misleading the jury, undue delay, or needlessly presenting cumulative
evidence.” TEX. R. EVID. 403. “Rule 403 favors the admission of relevant evidence
and carries a presumption that relevant evidence will be more probative than
prejudicial.” Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010). “The
term ‘probative value’ refers to 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—coupled with the proponent’s
need for that item of evidence.” Id. (quoting Casey v. State, 215 S.W.3d 870, 879
(Tex. Crim. App. 2007)). “‘Unfair prejudice’ refers to a tendency to suggest a
decision on an improper basis, commonly, though not necessarily, an emotional
one.” Id. “It is only when there exists a clear disparity between the degree of
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prejudice of the offered evidence and its probative value that Rule 403 is
applicable.” Id. (quoting Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App.
1997)).
In conducting a Rule 403 analysis, 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.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006) A trial
court is entitled to broad discretion in ruling on a Rule 403 objection. State v.
Mechler, 153 S.W.3d 435, 438 (Tex. Crim. App. 2005).
Analysis
Appellant argues that “[t]he problem with the conversation in State’s Exhibit
No. 13 is that it is not clear what the men are talking about” and that “before
evidence of that nature is admitted the actual meaning of the statements has to be
crystal clear.” Appellant further contends that “[t]he phone call in question simply
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had no probative value because it required the jury to speculate as to the
appellant’s meaning.”
We disagree with appellant’s premise that, just because the telephone call
might create conflicting inferences (i.e., it is either a confession or appellant is
talking about something else entirely), it lacks probative value.6 It is within the
province of the jury to resolve any ambiguity or doubt as to the meaning of
appellant’s statements. See Hernandez v. State, 470 S.W.3d 862, 869 (Tex.
App.—Fort Worth 2015, pet. ref’d). Further, “[w]e presume the factfinder resolved
any conflicting inferences in favor of the verdict, and we defer to that resolution.”
Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018).
Because the jury resolved any conflicting inferences in favor of the verdict,
we assume that they found appellant’s statements to be “tantamount to a
confession,” as appellant asserts in his brief. The issue, thus, is whether the
admission of statements tantamount to a confession are unduly prejudicial in
violation of Rule 403.
Here, the probative value of appellant’s statements7 is high because it serves
to make a fact of consequence—whether appellant shot Angela—more or less
6
We also note that appellant does not make a Rule 401 relevancy argument on
appeal.
7
His statements include inculpatory comments that he had “learned his lesson,” “I
won’t do that no more,” and he was “[d]efinitely not f---ing with her no more.”
6
probable. See Mechler, 153 S.W.3d at 440. And, while appellant’s statements are
undoubtedly prejudicial, they are not unfairly prejudicial because they relate
directly to one of the charged offenses and do not have a great potential to impress
the jury in an irrational way. See id. Arguably, however, the State did not have a
great need to introduce the telephone call with appellant’s inculpatory statements
in light of the two eyewitness identifications of appellant by the complainants. See
id. at 441. But, because of the strength of the State’s identification evidence, it is
unlikely that the jury gave undue weight to appellant’s statements in the telephone
call or that it was unequipped to evaluate the probative force of the evidence. See
Gigliobianco, 210 S.W.3d at 641. No undue amount of time was needed to develop
the evidence. The telephone conversation had been edited and the jury heard only a
one minute and 41 second excerpt from it. Id. at 641–42.
Thus, the trial court, after balancing the Rule 403 factors, could have
reasonably concluded that the probative value of appellant’s statements in the
telephone call was not substantially outweighed by the countervailing factors
specified in the rule. See id.
We overrule issue one.
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LESSER-INCLUDED OFFENSE
In his second issue on appeal, appellant contends that “it was reversible error
for the trial court to refuse to instruct the jury on the lesser offense of aggravated
assault.”8
Background
During her testimony, Angela explained that she and appellant had dated for
a year, but, after they broke up, they continued to have a sexual relationship, which
she agreed could be described as being “sex buddies.” Appellant contends that,
considering this testimony, the jury should not have been charged only on the
offense of aggravated assault involving a dating relationship; it should also have
been charged on the lesser-included offense of aggravated assault.
Standard of Review and Applicable Law
When reviewing alleged charge error, we first determine whether error exists
and then, if so, ascertain whether the resulting harm is sufficient to warrant a
reversal. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). We follow a
two-step test in determining whether a trial court is required to give a requested
instruction on a lesser-included offense. Bullock v. State, 509 S.W.3d 921, 924
(Tex. Crim. App. 2016). The first step is to determine whether the requested
instruction pertains to an offense that is a lesser-included offense of the charged
8
This issue relates only to the appeal in which Angela is the complainant.
8
offense, which is a matter of law. Id. Under this step, an offense is a lesser-
included offense if it is within the proof necessary to establish the offense charged.
Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011). The second step is to
ask whether there is evidence in the record that supports giving the instruction to
the jury. Id. Under this step, a defendant is entitled to an instruction on a lesser-
included offense when there is some evidence in the record that would permit a
jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-
included offense. Rice v. State, 333 S.W.3d 140, 145 (Tex. Crim. App. 2011). The
evidence must establish the lesser-included offense as a valid, rational alternative
to the charge offense. Id.
Analysis
The parties agree that, in this case, aggravated assault is a lesser-included
offense of aggravated assault of a person with whom appellant has or has had a
dating relationship, with the only additional element requiring the State to prove a
dating relationship between appellant and Angela. Thus, we turn to the second
prong of the test for a lesser-included offense, i.e., whether there is some evidence
in the record that would permit a jury to rationally find that, if the appellant is
guilty, he is guilty only of aggravated assault. In other words, is there more than a
scintilla of evidence that appellant and Angela did not have a dating relationship?
We hold that there was not.
9
A “dating relationship” is statutorily defined as “a relationship between
individuals who have or have had a continuing relationship of a romantic or
intimate nature.” TEX. FAM. CODE § 71.0021(b). The existence of such a
relationship shall be determined based on consideration of (1) the length of the
relationship, (2) the nature of the relationship, and (3) the frequency and type of
interaction between the persons involved in the relationship. Id. A casual
acquaintanceship or ordinary fraternization in a business or social context does not
constitute a “dating relationship.” Id. § 71.0021(c). Applying these factors, the
court of criminal appeals has held that evidence of a “dating relationship” was
sufficient when the record showed that the defendant and the victim each
“occasionally . . . spent the night with the other at the other’s residence” from
January 2005 through February 8, 2005. Villarreal v. State, 286 S.W.3d 321, 324
(Tex. Crim. App. 2009).
Appellant contends that there is evidence that he and Angela did not have a
dating relationship, and he points to her testimony, in which she stated, “Well, I
wouldn’t call it a relationship. We would just hang out, have intercourse, and go on
about our days.” Angela agreed with defense counsel’s characterization of her
relationship with appellant as just “sex buddies.” Essentially, appellant argues that
because his relationship with Angela had devolved from dating to a purely sexual
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relationship with no commitment, he and Angela did not “have or have had” a
dating relationship. We disagree.
It is undisputed that Angela and appellant dated for some period of time.
Angela’s father, Larry Garcia, testified that “[t]hey were in a relationship for a few
good years.” He also said that “[t]he had been dating for about five or six years,”
before Angela left appellant. Garcia testified that he was aware that his daughter,
Angela, had dated appellant for four to five years. Garcia stated, “Their
relationship, as far as I seen, they were boyfriend and girlfriend the whole time I
seen them.” Appellant told Garcia that he loved Angela.
Angela’s current boyfriend and the other complainant in this case, Damarcus
Jones, testified that he was aware of the on-again-off-again relationship between
Angela and appellant. He stated, “I had known that they had a relationship before
me and her started talking, but once me and her started talking, she wasn’t talking
to him.”
Angela’s brother, Daniel Miller, testified that he was aware of the dating
relationship between his sister and appellant. He testified that they officially
became boyfriend-girlfriend “maybe like a week or two” after he introduced them.
Miller testified, “They’ve been together for like—I want to say five years before
all this stuff happened, or four years, somewhere around there.” He also noted that
Angela and appellant lived together as a couple for approximately six to eight
11
months. Miller testified that even when they did not live together, they saw each
other “constantly; every day for years.”
Angela, however, testified that she only dated appellant for one year, but
“[they] had broken up, went [their] own way;” and after that “[they] were just like
on and off.” Angela testified, “We’d see each other, we’ll have intercourse, and
just go off and do our own things.” She testified that this strictly sexual
relationship continued for “a couple of years,” during which they would have sex
“every other week or so.”
As seen from the testimony above, even if we were to disregard the time that
Angela claimed that she and appellant were just “sex buddies,” there is evidence
that Angela and appellant were in a dating relationship for, at most, four to five
years, or at least, one year. While dating, they had a sexual relationship, lived
together for six to eight months, and saw each other “constantly.” This was not a
casual acquaintanceship or ordinary fraternization, and there is no controverting
evidence to suggest that it was. The fact that the dating relationship ended
sometime before the shooting is irrelevant because the statute requires only that
they “have or have had a continuing relationship of a romantic or intimate nature.”
See Hill v. State, No. 01-10-00926-CR, 2012 WL 983338 (Tex. App.—Houston
[1st Dist.] Mar. 22, 2012, no pet.) (mem. op.) (interpreting TEX. FAM. CODE §
71.021(b) and holding that jury permitted to find that “a dating relationship existed
12
if it found that [the defendant] and [the complainant] had a continuing relationship
of a romantic or intimate nature in the past, regardless of whether that relationship
was ongoing at the time of the assault”); see also Sanchez v. State, 499 S.W.3d
438, 443 (Tex. Crim. App. 2016) (“If the legislature had intended for there to be an
explicit limit on the length of time between the dating relationship and the assault,
it would have inserted one into the statute”).
Because there is no evidence that appellant and Angela never had a dating
relationship, the trial court did not err by refusing to charge the jury on the lesser-
included offense of aggravated assault in the case in which Angela is the
complainant.
We overrule issue two. In light of our disposition of this issue, we need not
also decide whether an ongoing, but purely sexual relationship is a “continuing
relationship of a romantic or intimate nature,” as required by section 71.021(b) of
the Family Code, and we decline to do so.
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Kelly and Goodman.
Do not publish. TEX. R. APP. P. 47.2(b).
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