Chad Michael Fernandez v. State

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-18-00483-CR
___________________________

CHAD MICHAEL FERNANDEZ, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court No. 1550055R

Before Kerr, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Womack
 MEMORANDUM OPINION

I. INTRODUCTION

Appellant Chad Michael Fernandez appeals his conviction and fifteen-year

sentence for stalking.1 In four points, Fernandez argues that (1) the trial court abused

its discretion by allowing the State’s expert witness to testify about domestic violence

in general and how those generalizations applied to the facts of this case, (2) the

State’s expert’s testimony was more prejudicial than probative, (3) the stalking statute

is facially unconstitutional, and (4) because the stalking statute is facially

unconstitutional, this court should remand this case for a new trial.2 We affirm.

II. BACKGROUND

Fernandez and the complainant in this case, Daisy Leza, began dating in

November 2015 after meeting on Match.com. The relationship was tumultuous, and

in mid-July 2016, Leza broke off the relationship. Fernandez began to leave angry

and threatening voicemails on Leza’s phone. Leza eventually blocked Fernandez’s

number and began to periodically stay with relatives in order to avoid contact with

him. At trial, Leza testified that the couple’s relationship had a pattern wherein

Fernandez would do or say something that disturbed Leza, she would break off the

relationship, but Fernandez would continue to communicate with her until she agreed

1
See Tex. Penal Code Ann. § 42.072(a)(1)(B).
2
Fernandez originally filed a brief with two points, but in his reply brief he
brought forth two more points, which he labeled “supplemental.” For ease of
reading, we have labeled them points one through four.

2
to go out with him again. Following that pattern, in late July 2016, Leza and

Fernandez celebrated Fernandez’s birthday together in Dallas. Soon thereafter, Leza

again broke off the relationship.

Around 4:00 a.m. in mid-August 2016, Fernandez entered Leza’s backyard and

knocked on her bedroom window. In an effort to keep Fernandez from coming to

her house again, Leza agreed to unblock Fernandez’s phone number to allow him to

communicate with her. Over the next few weeks, Fernandez would follow Leza in

her car, show up at her house uninvited with gifts, and persistently call her. At this

point, Leza permanently moved in with her parents to avoid him.

Leza told Fernandez that she wanted him to leave her alone, but he continued

to call her so she again blocked his phone number. However, Fernandez would use

other phones to contact Leza, so she obtained a new phone number in early

September 2016. A few days later, Leza saw Fernandez in the employee parking lot of

her work. Later that same day, Fernandez went into the reception area of Leza’s

work. When security guards talked with him, he said that he was there to see Leza,

but the guards told him to leave. According to Leza, security guards began to escort

her to her vehicle when she would leave work until she was given a space in a secured

lot.

On September 28, 2016, Leza went on her lunch break, and as she approached

her parent’s neighborhood, a vehicle started swerving close to hers and then drove in

front of her, blocking her from moving. It was Fernandez, who got out of his vehicle

3
and approached Leza’s vehicle. Scared, Leza rolled down her window slightly, and

after Fernandez pleaded with her to communicate with him, Leza gave Fernandez her

new email account. From there, Fernandez sent several threatening emails,3 so Leza

blocked his email address.

Undeterred, Fernandez began to frequently drive around the perimeter of her

work. He also confronted her outside of a yoga class she had attended. In an attempt

to appease Fernandez, Leza unblocked his email. Fernandez again began to send

threatening emails, including threats to kill anyone who attempted to date her.

On November 11, 2016, after returning from a trip, Leza stopped by her house

to pick up some things. She found flowers and letters from Fernandez in her

mailbox. While inside her house, she heard a knock on her back window. After

looking outside and seeing Fernandez’s truck, she called the police. The police issued

Fernandez a criminal trespass warning and advised Fernandez to no longer contact

Leza. But Fernandez again sent numerous threatening emails,4 and on November 15,

2016, after obtaining an arrest warrant, police arrested Fernandez.5

3
The State introduced more than 260 exhibits chronicling Fernandez’s texts,
emails, and uninvited encounters with Leza, as well as interactions with police
regarding Fernandez’s persistence to communicate with her. For example, one email
that Fernandez sent to Leza stated, “It’s time now so grip hold of what[ever because]
I’m coming now. I’ll be right there at you[r] f*****g lowest so get ready [because] I’m
coming.”
4
For an example of the threatening nature of Fernandez’s emails, in one email
he stated, “I’m at your work now . . . . YOU CAN’T AVOID ME AND IF YOU
THINK COPS CAN OR WHATEVER I’LL JUST SEND ANOTHER MAN OR
4
 At trial, the State called Lacy Hensley as a domestic-violence expert witness.

After conducting a Rule 705 hearing,6 the trial court allowed Hensley, director of

intake and client services at One Safe Place,7 to testify before the jury. Hensley

averred that she has extensive experience regarding domestic violence and stalking

behavior. According to Hensley, she had collected eighteen months of data covering

more than 1,400 clients during the years of 2017 and 2018 at One Safe Place, and 78%

of the clients had reported some form of electronic stalking via email, messaging, or

unwanted phone calls. Hensley also said that the overarching umbrella of “domestic

violence” includes emotional abuse or abuse through communication alone.

AN[]OTHER PERSON TO GET YOU TO REA[L]IZE [BECAUSE] I AM
FOR[]EVER.”
5
The State introduced video from an officer’s body camera showing Fernandez
fleeing from police when they went to his house to arrest him. Moments later, the
police were able to subdue Fernandez without a struggle.
6
Texas Rule of Evidence 705(c) governs the reliability of expert testimony.
Tex. R. Evid. 705(c). The rule states that “[a]n expert’s opinion is inadmissible if the
underlying facts or data do not provide a sufficient basis for the opinion.” Id. The
proponent of the expert must establish some foundation for the reliability of the
expert’s opinion, and this is done through a hearing before the trial court. Vela v.
State, 209 S.W.3d 128, 136 (Tex. Crim. App. 2006).
7
On its website, One Safe Place describes itself as a 501(C)(3) organization that
serves as “a comprehensive crime prevention agency devoted to preventing crime and
violence in Tarrant County’s neighborhoods, schools[,] and homes.” One Safe Place,
https://www.onesafeplace.org/ (last visited March 2, 2020). Hensley testified that
she works for a division of One Safe Place known as the Family Justice Center, which
she described as a partnership of about twenty agencies that “provide one location for
people experiencing intimate partner and/or family violence.”

5
 Hensley went on to explain the “Power and Control wheel,” an educational

tool used by domestic-abuse counselors to help explain to victims the cycle of

domestic abuse. As she explained the Power and Control wheel, the State introduced

a visual aid that Hensley had brought with her that she described as “a visual

representation [designed] to help explain the types of behaviors that happen in an

abusive relationship.” Even though the visual aid has the words “physical” and

“sexual violence” prominently displayed on its outer circle, Hensley said that domestic

violence is “not just physical and sexual violence like we typically think of, there are

many other types of abuse that also occur in those relationships, and the top eight are

listed inside of the wheel.” Specifically, Hensley pointed out the top eight that were

listed on the visual aid: coercion and threats; intimidation; emotional abuse; isolation;

minimizing, denying, and blaming; using children; economic abuse; and male privilege.

After expressing these eight categories, Hensley again emphasized how domestic

abuse “doesn’t have to be physical or sexual abuse.”

Hensley then testified that another tool used by domestic-abuse counselors is

the “cycle of violence” and that there are three distinct phases of domestic abuse:

tension building, an abusive incident, and a honeymoon phase. Like she did when

describing the Power and Control wheel, Hensley repeatedly stated that an “abusive

incident” does not have to be physical and includes incidents of verbal and emotional

abuse. She also said that people can be in fear or put in fear for their life or livelihood

through words alone.

6
 Hensley testified that she had read some of the emails and texts that Fernandez

had sent to Leza, although she had not met with either of them personally. Hensley

opined that she could see multiple “cycle[s] of violence throughout the text messages

and e-mails” and that these communications could have definitely placed Leza in fear,

as general victims of stalking would be. Hensley said that common terms used by

domestic abusers like “I’ll show you” and “I’ll never give up” were found frequently

in Fernandez’s communications to Leza and that the communications would escalate

in tone and frequency if Leza did not communicate back. Hensley also said that she

had reviewed emails and messages wherein Fernandez had explained to Leza how he

knew her routine schedule8 and that this would deliver the message to any domestic-

abuse victim that the abuser was in control of when and where he might show up.

Hensley explained that it is common in domestic-abuse scenarios for the victim

to leave the relationship but to also leave open lines of communication with the

abuser and that this communication did not lessen the fear for the victim. She also

said that it is not uncommon for a victim to meet with an abuser after leaving in

hopes of deescalating stalking behavior or to re-open lines of communication when

an abuser begins to show up at locations uninvited. And Hensley stated that when a

victim is being repeatedly exposed to stalking behavior, they often live in a constant

8
For example, in one email, Fernandez wrote Leza, “So [you] pick up you[r]
mail around 3:30ish and then you either stay there to do yoga or you go to you[r]
boyfriend’s and parent[’]s house. It’s always one of those and you skip lunch
breaks. . . . Am I getting all this right? How do I know all this while I’m working?
That’s a secret my friend that [you will] never know and it’s best to be untold. Lol.”

7
“what’s going to happen next” state of mind. Hensley defined stalking behavior as

the totality of the circumstances and not just the individual isolated incidents.

Ultimately, a jury found Fernandez guilty of third-degree felony stalking but

found the State’s deadly-weapon (a vehicle) allegation not true. After Fernandez

pleaded true to the State’s repeat-offender notice, the trial court sentenced Fernandez

to fifteen years’ confinement. This appeal followed.

III. DISCUSSION

A. The Admissibility of Hensley’s Testimony

In his first point, Fernandez argues that the trial court abused its discretion by

allowing Hensley to testify about domestic violence “because it did not assist the jury

in deciding an ultimate issue in this case, went beyond the scope of admissible expert

testimony, and supplanted the jury’s decision.” We disagree.

1. Standard of Review

We review the trial court’s determination as to the admissibility of expert

testimony for an abuse of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim.

App. 2019). Expert testimony is admissible when scientific, technical, or other

specialized knowledge will assist the factfinder in understanding the evidence or in

determining a fact issue. Tex. R. Evid. 702; Cohn v. State, 804 S.W.2d 572, 575 (Tex.

App.—Houston [14th Dist.] 1991), aff’d, 849 S.W.2d 817 (1993). Evidence admissible

under Rule 702 may include testimony that compares general or classical behavioral

characteristics of a certain type of victim with the specific victim’s behavior patterns.

8
See Duckett v. State, 797 S.W.2d 906, 917 (Tex. Crim. App. 1990) (holding testimony of

expert on whether the reaction of complaining child was similar to the reaction of

most victims of child abuse was helpful to the jury in determining if an assault

occurred);9 Fielder v. State, 756 S.W.2d 309, 321 (Tex. Crim. App. 1988) (holding that

expert testimony aided factfinder when expert explained inconsistency in appellant’s

behavior consistent with that of typical battered women).

Because the average juror will not typically be familiar with the effect of

domestic violence on victims and the dynamics of the relationship between abuser

and victim, expert testimony has generally been held to be admissible to explain

recantations, delays in reporting, lies to the police, and why a complainant would

continue a relationship with an abuser after an alleged assault. See Salinas v. State,

426 S.W.3d 318, 323 (Tex. App.—Houston [14th Dist.] 2014) (op. on reh’g), rev’d on

unrelated grounds, 464 S.W.3d 363 (Tex. Crim. App. 2015); Dixon v. State, 244 S.W.3d

472, 480 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d); Scugoza v. State,

949 S.W.2d 360, 363 (Tex. App.—San Antonio 1997, no pet.). And the cycle of

violence and the Power and Control wheel are generally accepted principles that

experts on domestic violence use to explain the general relationship between an

abuser and victim. See Young v. State, No. 09-17-00374-CR, 2019 WL 1647679, at *2

9
The court of criminal appeals has disapproved of Duckett, but only to the
extent that it could be read “to hold that even expert testimony that is relevant as
substantive evidence may yet be inadmissible unless it serves some rehabilitative
function.” Cohn, 849 S.W.2d at 819.

9
(Tex. App.—Beaumont Apr. 17, 2019, no pet.) (mem. op., not designated for

publication) (holding cycle of violence admissible to explain text messages in which

the defendant apologized for his violent actions and the complainant expressed

forgiveness and a desire to maintain their relationship and drop criminal charges);

Nwaiwu v. State, No. 02-17-00053-CR, 2018 WL 3763899, at *3 (Tex. App.—Fort

Worth Aug. 9, 2018, pet. ref’d) (mem. op., not designated for publication) (holding

expert testimony on the cycle of violence relevant to explain why victim would change

her story and testify for the defendant); see Runels v. State, No. 03-18-00036-CR,

2018 WL 6381537, at *7 (Tex. App.—Austin Dec. 6, 2018 pet. ref’d) (mem. op., not

designated for publication) (holding trial court did not abuse its discretion by

admitting expert testimony about the Power and Control wheel when victim

continued to communicate with the defendant after offense); Mendoza v. State, No. 08-

13-00293-CR, 2015 WL 5999596, at *2, *4–5 (Tex. App.—El Paso Oct. 14, 2015, pet.

ref’d) (not designated for publication) (holding expert testimony about the Power and

Control wheel relevant to assist the jury in understanding domestic-violence victim’s

actions and statements).

A trial court’s admission of expert testimony will rarely be disturbed on appeal;

“[b]ecause the possible spectrum of education, skill, and training is so wide, a trial

court has great discretion in determining whether a witness possesses sufficient

qualifications to assist the jury as an expert on a specific topic in a particular case.”

Rodgers v. State, 205 S.W.3d 525, 527–28 (Tex. Crim. App. 2006). But expert testimony

10
that decides an ultimate fact for the jury, such as a direct opinion on the truthfulness

of a witness, crosses the line and is not admissible under Rule 702. Schutz v. State,

957 S.W.2d 52, 59 (Tex. Crim. App. 1997).

2. Rule 702 and Expert Testimony

The admission of expert testimony is governed by Rule 702 of the Texas Rules

of Evidence, which states that a witness who is “qualified as an expert by knowledge,

skill, experience, training or education may testify in the form of an opinion or

otherwise if the expert’s scientific, technical, or other specialized knowledge will help

the trier of fact to understand the evidence or to determine a fact in issue.” Tex. R.

Evid. 702. Thus, there are three requirements for the admission of expert testimony:

(1) the witness qualifies as an expert by reason of her knowledge, skill, experience,

training, or education; (2) the subject matter of the testimony is an appropriate one

for expert testimony; and (3) admitting the expert testimony will assist the factfinder

in deciding the case. Rhomer, 569 S.W.3d at 669. These are commonly referred to as

(1) qualification, (2) reliability, and (3) relevance. Id.

3. The Relevancy of Hensley’s Testimony

Here, Fernandez challenges only the relevancy of Hensley’s testimony, albeit in

three distinct ways. First, Fernandez argues that Hensley’s testimony about the cycle

of violence “was not sufficiently tied to the facts of this case to constitute relevant

expert testimony.” Fernandez’s first argument under this point alleges that because

the cycle of violence has three phases, one of which is the “abusive incident,” and

11
because Hensley did not testify to an abusive incident, the facts of this case are not

sufficiently tied to the cycle of violence theory. Fernandez’s argument is predicated

on his notion that an “abusive incident” must be physical in nature, and because there

was no physical assault in this case, Hensley should not have been able to testify about

the cycle of violence theory. But Fernandez’s myopic view of an abusive incident is

not supported by the record. Indeed, Hensley repeatedly said that abuse does not

have to be physical and that roughly 78% of the clients at One Safe Place had

reported non-physical abuse such as threatening or harassing phone calls or

messages—the types of abusive incidents that Hensley clearly testified that she

identified multiple times in Fernandez’s communications to Leza. Fernandez does

not cite to any authority that an “abusive incident” must be physical, and his

definition is not supported by the record. We overrule this portion of Fernandez’s

first point.

The second argument that Fernandez makes under this point is that the visual

aid that Fernandez used when describing the Power and Control wheel states that

“regular use of other abusive behaviors by the batterer, when reinforced by one or

more acts of physical violence, make up a larger system of abuse.” Thus, Fernandez

contends, the Power and Control wheel requires physical violence, and because there

is no evidence of physical violence from Fernandez toward Leza in the record,

Hensley failed to tie the Power and Control wheel theory to the theory of this case.

12
 But Hensley directly testified to the language found on the Power and Control

wheel visual aid and acknowledged that the aid states on the “outer circle” physical

and sexual abuse, which are types of physical violence. Hensley explained multiple

times, however, that “abuse” in general is more far-reaching than physical violence,

and she testified that within the inner circle of the Power and Control wheel visual aid

were eight different, nonphysical types of abuse. In short, there is no support in the

record, nor has Fernandez pointed to any authority to support the argument, that the

Power and Control wheel theory requires a physical event. We overrule this portion

of Fernandez’s first point.

Third and finally, Fernandez argues that Hensley’s testimony went beyond

comparing Leza’s behaviors to general behaviors of domestic abuse victims.

Specifically, Fernandez argues that “Hensley’s testimony that Fernandez’s messages

would make Leza fear for her life, feel hopeless that he would never stop, and feel like

she did not have a choice went beyond the scope of admissible expert testimony” and

that Hensley’s testimony “constituted a direct opinion on Leza’s truthfulness.”10 This

court has reviewed the record, and we disagree with Fernandez that Hensley’s

10
The State argues that Fernandez has failed to preserve this third sub-argument
of his first point for our review, contending that Fernandez never made this specific
objection during the Rule 705 hearing or later at trial when he requested a running
objection. But as can be read in the record of the Rule 705 hearing, Fernandez did
object that Hensley would be “testify[ing] as to hearing stories from . . . the victim,”
and he objected that Hensley would be “curtailing her testimony to what she has
heard from this victim.” Given these objections, and in the interest of justice, we
have addressed this sub-argument.

13
testimony was specific to Leza and that Hensley gave an opinion regarding Leza’s

truthfulness. Indeed, the prosecutor who questioned Hensley went to great lengths to

keep Hensley’s testimony as general as possible, and Hensley’s testimony never

wavered from a comparison of Leza’s behaviors to behaviors that Hensley said she

had repeatedly seen in domestic-violence or stalking scenarios in general. We overrule

Fernandez’s first point in its entirety.

B. The Probative Versus Prejudicial Effect of Hensley’s Testimony

In his second point, Fernandez argues that the trial court erred by allowing

Hensley’s testimony because the prejudicial effect of the evidence greatly outweighed

any probative value, and it was therefore inadmissible under Texas Rules of Evidence

Rule 403. Tex. R. Evid. 403. We disagree.

1. Standard of Review

We review trial court rulings on the admissibility of evidence for abuse of

discretion. Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). A trial court

abuses its discretion when its ruling is arbitrary or unreasonable. State v. Mechler,

153 S.W.3d 435, 439 (Tex. Crim. App. 2005). A trial court does not abuse its

discretion if its decision is within “the zone of reasonable disagreement.” Bigon v.

State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008).

2. Rule 403

In analyzing a Rule 403 objection, the trial court must engage in a balancing

process. Perez v. State, 562 S.W.3d 676, 689 (Tex. App.—Fort Worth 2018, pet. ref’d).

14
When undertaking this analysis, on one end of the scales the court must weigh (1) the

inherent probative force of the evidence along with (2) the State’s need for the

evidence. Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). On the

other end, the court weighs (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 of the evidence to be given undue weight by a

jury that has not been equipped to evaluate the probative force of the evidence, and

(6) the likelihood that presentation of the evidence will consume an inordinate

amount of time or merely repeat evidence already admitted. Id. at 641–42. Rule 403

carries a presumption that relevant evidence will generally be more probative than

problematic. Wells v. State, 558 S.W.3d 661, 669 (Tex. App.—Fort Worth 2017, pet.

ref’d). Thus, the balance is always slanted toward admission of relevant evidence. In

De La Paz v. State, 279 S.W.3d 336, 343 & n.17 (Tex. Crim. App. 2009). It was

Fernandez’s burden to overcome this presumption by demonstrating that the

probative value of the evidence was substantially outweighed by the danger of unfair

prejudice or other factors. Wells, 558 S.W.3d at 669.

3. Balancing the Factors in This Case

Here, much like in his first point, Fernandez places the main focus of his

objection under Rule 403 on the fact that there was no evidence presented at trial

demonstrating that he had physically abused Leza and on his contention that Hensley

15
directly commented upon Leza’s veracity.11 As discussed above, there is no

foundation for Fernandez’s contention that testimony regarding the cycle of violence

or the Power and Control wheel require a physical component. And as discussed

above, this court finds nothing in the record to support Fernandez’s contention that

Hensley commented on the veracity of Leza’s testimony. In his brief, Fernandez does

not analyze nor attempt to demonstrate how the typical factors considered in a Rule

403 balancing analysis support his contention. We conclude that the factors weigh in

favor of the trial court’s decision.

As to the first factor—the inherent probative force of the evidence—Hensley

testified regarding domestic violence in general and typical behaviors of victims of

domestic violence, including the typical behavior of victims of stalking. This type of

testimony has repeatedly been held to have inherent probative force in domestic-

violence cases, and Fernandez has pointed to no evidence in the record to show how

the trial court in his case should have concluded otherwise. Scugoza, 949 S.W.2d at

Although he does not analyze the case, Fernandez does cite Gonzalez v. State
11

as an example of a case in which the court determined that testimony similar to
Hensley’s was not admissible. No. 03-07-00323-CR, 2008 WL 2736889, at *5 (Tex.
App.—Austin July 10, 2008, pet. ref’d) (mem. op., not designated for publication).
But Fernandez’s reliance on Gonzalez is misplaced. There, the victim did not display
the “typical” behavior of an abused spouse. Id. Testimony about the cycle of
violence, therefore, did not assist the jury in understanding the victim’s actions or
rebut a defensive theory. Id. Further, the testimony unduly prejudiced the defendant
by suggesting to the jury that he had abused the victim in the past. Id. Here, evidence
of Fernandez’s past abuse was admitted into evidence, and the theories relied upon by
Hensley explained why Leza may have remained in communication with Fernandez
even though she feared him and did not want to have any contact with him.

16
363 (holding that expert’s testimony comparing reaction of complaining child with

general behavioral characteristics of abused children helped jury in determining

whether assault occurred); Fielder, 756 S.W.2d at 321 (holding same as to female

victims of domestic violence). This factor favors the trial court’s admitting Hensley’s

testimony.

As to the second factor, the State had a relatively strong need for this evidence

because Fernandez’s main defense was that because Leza had repeatedly opened lines

of communication with Fernandez, she could not possibly have been placed in fear by

his actions. Hensley’s testimony about how victims of both domestic violence and

stalking often open lines of communication or agree to meet with their abusers was a

direct rebuttal to Fernandez’s theory that Leza’s continued, purposeful interactions

with Fernandez showed that she had not been placed in fear by his actions. This

factor weighs heavily in favor of the trial court’s admitting Hensley’s testimony.

As to the third factor, the evidence in question had limited potential to cause

unfair prejudice. Unfair prejudice may be created by the tendency of the evidence to

prove some adverse fact not properly in issue or to unfairly excite emotions against

the defendant. Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1990). But

here, Hensley’s testimony did not tend to prove some adverse fact; rather, her

testimony was about the behaviors of domestic-violence and stalking victims in

general and was predicated on theories that have consistently been allowed into

17
evidence in cases like this one. Scugoza, 949 S.W.2d at 363; Fielder, 756 S.W.2d at 321.

This factor favors the trial court’s admitting Hensley’s testimony.

The remaining factors add no weight to the scales. As to the fourth and fifth

factors, we do not perceive any way in which the evidence would have confused or

distracted the jury, and the evidence was not of such scientific or technical character

that it might have been given undue weight by an untrained jury. See Gigliobianco,

210 S.W.3d at 641. Finally, as to the sixth factor, the trial court could have reasonably

concluded that the presentation of Hensley’s testimony would not consume an

inordinate amount of time. See id. at 641–42. In fact, Hensley’s testimony comprised

less than one-eighth of the testimony in the State’s case in chief (41 record pages out

of 593 total pages for the State’s case). We do not believe that this amount of time

was excessive. See Warren v. State, No. 02-19-00023-CR, 2019 WL 4124377, at *5

(Tex. App.—Fort Worth Aug. 29, 2019, no pet.) (mem. op., not designated for

publication) (holding that expert’s testimony on domestic violence in general did not

consume an inordinate amount of time given testimony constituted only 21 record

pages out of 170 total pages for the State’s case and thus neither weighed in favor nor

against admission of the testimony under Rule 403). These remaining factors weigh

neutrally.

Three factors weigh in favor of admission, one of them heavily so. The

remaining factors weigh neutrally. We therefore conclude that the trial court did not

18
exceed the “considerable freedom” it is afforded in exercising its discretion under

Rule 403. See Montgomery, 810 S.W.2d at 378. We overrule Fernandez’s second point.

C. Fernandez’s Claims that the Stalking Statute is Unconstitutional

In his third and fourth points, which Fernandez brings up for the first time in

his reply brief, he argues that because this court has held that an element of the

harassment statute is unconstitutionally vague and because the stalking statute

incorporates by reference the harassment statute, then the jury’s verdict was not

founded on a constitutionally valid statute, and this case demands a remand. The

State argues that Fernandez has failed to preserve these points for our review. We

agree with the State.

After Fernandez filed his opening brief, this court, in Ex parte Barton, declared

the electronic-communication element of the harassment statute facially

unconstitutional. 586 S.W.3d 573, 585 (Tex. App.—Fort Worth 2019, pet. granted)

(op. on reh’g). Based upon Barton and the reference to the harassment statute in the

stalking statute, Fernandez raises a facial challenge to the constitutionality of the

stalking statute for the first time on direct appeal.

Generally, a facial challenge to the constitutionality of a statute may not be

raised for the first time on appeal. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim.

App. 2009). Failure to raise a facial challenge in the trial court may forfeit it on

appeal. Id. One exception to the general rule is when the statute under which an

appellant has been convicted is adjudged facially unconstitutional during the pendency

19
of his appeal—then he may raise a facial challenge first on appeal. Smith v. State,

463 S.W.3d 890, 895–97 (Tex. Crim. App. 2015). Because an unconstitutional statute

is void from inception, a challenge to a conviction under that statute is neither waived

nor forfeited when presented post-conviction. Id. at 895; Ex parte Beck, 541 S.W.3d

846, 855 (Tex. Crim. App. 2017).

Here, Fernandez did not challenge the facial constitutionality of the stalking

statute in the trial court. His claim, therefore, is forfeited unless binding authority has

adjudged the stalking statute facially unconstitutional and the Smith exception to

preservation applies. Smith, 463 S.W.3d at 896; Beck, 541 S.W.3d at 855.

No court has declared the stalking statute under which Fernandez has been

convicted facially unconstitutional. See Tex. Penal Code Ann. § 42.072. Rather,

multiple courts, including this court, have upheld the constitutionality of prior

versions of the stalking statute. See Ploeger v. State, 189 S.W.3d 799, 812–15 (Tex.

App.—Houston [1st Dist.] 2006, no pet.); State v. Seibert, 156 S.W.3d 32, 37 (Tex.

App.—Dallas 2004, no pet.); Lewis v. State, 88 S.W.3d 383, 392 (Tex. App.—Fort

Worth 2002, pet. ref’d); Sisk v. State, 74 S.W.3d 893, 902 (Tex. App.—Fort Worth

2002, no pet.); Battles v. State, 45 S.W.3d 694, 703 (Tex. App.—Tyler 2001, no pet.);

Clements v. State, 19 S.W.3d 442, 451 (Tex. App.—Houston [1st Dist.] 2000, no pet.).

Thus, the Smith exception does not enable Fernandez to raise a first-time facial

challenge on direct appeal based upon binding authority directly striking down the

stalking statute. But Fernandez’s challenge may still be brought for the first time on

20
appeal under the Smith exception unless the statute that he was convicted under is

materially different than the portion of the harassment statute that this court has held

unconstitutional. Beck, 541 S.W.3d at 858.

Fernandez claims that the electronic-communications section of the

harassment statute is “sufficiently similar” to the stalking statute and thus it triggers

the Smith exception. We disagree.

A side-by-side comparison between the stalking statute that Fernandez was

convicted of and the harassment statute that this court held unconstitutionally

overbroad in Barton shows that the statutes are materially different:

Elements of Stalking Elements of Harassment

1. A person 1. A person

2. on more than one occasion and 2. (Statute has no equivalent.)
pursuant to the same scheme or
course of conduct that is directed
specifically at another person
3. knowingly engages in conduct that 3. with intent to harass, annoy, alarm,
abuse, torment, or embarrass
another
4. constitutes an offense under 4. sends repeated electronic
Section 42.07, or that the actor communications in a manner
knows or reasonably should know reasonably likely to harass, annoy,
the other person will regard as alarm, abuse, torment, embarrass,
threatening: or offend another.
(A) bodily injury or death for the
other person;
(B) bodily injury or death for a
member of the other person’s
family or household or for an
individual with whom the other
person has a dating relationship; or
(C) that an offense will be
21
 committed against the other
person’s property;
5. causes the other person, a member 5. (Statute has no relationship
of the other person’s family or requirement.)
household, or an individual with
whom the other person has a
dating relationship to be placed in
fear of bodily injury or death or in
fear that an offense will be
committed against the other
person’s property, or to feel
harassed, annoyed, alarmed,
abused, tormented, embarrassed,
or offended;
6. would cause a reasonable person 6. (Statute has no reasonable person
to: requirement.)
(A) fear bodily injury or death for
himself or herself;
(B) fear bodily injury or death for a
member of the person’s family or
household or for an individual with
whom the person has a dating
relationship;
(C) fear that an offense will be
committed against the person’s
property; or
(D) feel harassed, annoyed,
alarmed, abused, tormented,
embarrassed, or offended.

Tex. Penal Code Ann. §§ 42.07(a)(7); 42.072.

As the State points out, and as can be seen by the comparison of the two

statutes, “[t]he stalking statute is materially different than the electronic-

communications section of the harassment statute.” Thus, the Smith exception does

not apply to this case.

22
 Relying on the Texas Court of Criminal Appeals’ decision in Beck, Fernandez

also seems to argue that because the stalking statute incorporates the electronic-

communications section of the harassment statute that this court held

unconstitutional in Barton, and even if this court compares the stalking statute with the

harassment statute, “the stalking statute is sufficiently similar to the one in Barton for

the Smith exception to apply.” 541 S.W.3d at 858. Fernandez’s reliance on Beck,

however, is misplaced. In Beck, the court did precisely what this court has already

done in this case. See id. That is, the Beck court engaged in a side-by-side comparison

of the improper-relationship statute at issue in that case with the online-solicitation

statute that had been declared unconstitutional. Id. The Beck court concluded that

even though the improper-relationship statute referred to the online-solicitation

statute, the statutes were materially different because the improper-relationship statute

“contains the additional elements that the actor be a school employee and that the

recipient of the sexually explicit communications be a student.” Id. That same

reasoning applies to the statutes at issue in this case.

Although the stalking statute refers to the harassment statute, it contains the

additional elements that the victim has a familial or dating relationship with the

offender and that the offender engaged in conduct placing the victim in fear of bodily

injury or death. Thus, like in Beck, the stalking statute applies in a much narrower

context than the harassment statute. See id. (“The improper-relationship statute thus

applies in a much narrower context than did the former online-solicitation provision,

23
which applied broadly to any sexually explicit communications between an adult and a

minor.”).

Because there is no binding authority declaring the stalking statute

unconstitutional and because the stalking statute is materially different from the

section of the harassment statute that this court has declared unconstitutional, the

Smith exception does not apply; thus, Fernandez’s first-time facial constitutional

challenge to the stalking statute falls under the general rule that provides such

complaints may not be raised for the first time on appeal. See Beck, 541 S.W.3d at 855;

Smith, 463 S.W.3d at 895–97; Karenev, 281 S.W.3d at 434. Accordingly, because

Fernandez forfeited his third and fourth points for appellate review, we overrule

them.

IV. CONCLUSION

Having overruled all four of Fernandez’s points on appeal, we affirm the trial

court’s judgment.

/s/ Dana Womack

Dana Womack
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: March 5, 2020

24