In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00104-CR
__________________
JASON BRIAN HAMLIN, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 18-09-12843-CR
__________________________________________________________________
MEMORANDUM OPINION
A jury convicted appellant Jason Brian Hamlin of stalking as a habitual
offender and assessed punishment at confinement for life. In two appellate issues,
Hamlin challenges the sufficiency of the evidence and the admission of extraneous-
offense evidence. We affirm the trial court’s judgment.
THE EVIDENCE
On October 16, 2017, Deputy Steve Cranston of the Montgomery County
Sheriff’s Office responded to a 911 call regarding a possible trespass in progress at
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a residence in The Woodlands. When Cranston arrived at the residence, the victim,
N.H., was in the entryway of her home, and Cranston explained that she was “pretty
hysterical[,]” “agitated[,]” and “fearful[.]” According to Cranston, Hamlin “seemed
willing to get in his truck and leave.” Cranston explained that a trespass warning was
issued to Hamlin. A recording of N.H.’s 911 call was admitted into evidence and
published to the jury. According to Cranston, a male voice could be heard shouting
in the background of the 911 call, and he could also hear someone knocking on a
door. Cranston testified that he believed N.H. might have taken drugs or been
drinking, but she was articulate, and he could understand what had happened.
Cranston explained that he had no doubt that N.H. did not want Hamlin at the
residence.
Zach Maglisceau, a former night auditor at the Beachcomber Inn in Galveston,
testified that an incident involving Hamlin and N.H. occurred at the Beachcomber
Inn at approximately 2:00 a.m. on December 27, 2017. Maglisceau explained that
N.H. ran up to the window in the lobby, pounded on it, and screamed, “Help me, call
the police.” According to Maglisceau, N.H. was only wearing a shirt and socks, and
she seemed scared and had been crying. After Maglisceau let N.H. inside, N.H. was
panicking, and she wanted Maglisceau to make sure the door was locked, and N.H.
did not want to be visible from the window. Maglisceau testified that N.H. told him
she had been held against her will, but she escaped and was afraid that Hamlin would
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come after her. Maglisceau explained that he allowed N.H. to sit behind the counter
and behind a door, and he called the police. Maglisceau described N.H. as “scared
and panicky.”
When the police arrived, they interviewed N.H. and Maglisceau, but they were
unable to locate Hamlin. Maglisceau testified that he eventually put N.H. in a
different room. According to Maglisceau, he received several calls throughout the
night from a man who identified himself as Hamlin, and the caller said “if some girl
showed up[,] she was a liar and not to believe . . . anything she said.” Maglisceau
testified that the caller threatened him and the hotel. Maglisceau transferred a call to
N.H.’s room that turned out to be from Hamlin, and Maglisceau testified that N.H.
called back “in a panic[,]” left the new room, and returned to the lobby, where she
remained for the rest of the night. Maglisceau explained that he called the police
again. According to Maglisceau, Hamlin made more than five threatening phone
calls to the hotel, and Hamlin called fifteen to twenty times asking for N.H.
Steve Jensen, the manager and part owner of the Beachcomber Inn, testified
that he saw N.H. asleep on two chairs when he arrived. Maglisceau informed him
that N.H. had nowhere to go and no money, so Jensen decided to get a taxi to take
N.H. to her home in The Woodlands. According to Maglisceau, by the time he spoke
to investigators, the surveillance video recording of the incident was no longer
available.
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N.H.’s mother, J.H., testified that N.H. lives with her. J.H. explained that N.H.
had been diagnosed as bipolar. According to J.H., N.H. began dating Hamlin in the
fall of 2017. J.H. explained that in October 2017, N.H. called 911 to come to the
residence, and when J.H. got home from work, N.H. was agitated, edgy, emotional,
and fearful. N.H. told J.H. that she had hidden in a cupboard in the bathroom because
N.H. thought Hamlin had broken into the house. According to J.H., around
Christmas 2017, she learned that N.H. and Hamlin were going to Galveston. When
N.H. returned on New Year’s Eve, J.H. testified that N.H. had spoken to a women’s
shelter and was agitated, frantic, and “very frightened.” J.H. testified that N.H.
subsequently rang the doorbell and pounded on the door at 4:30 a.m., and when J.H.
opened the door, N.H. was frantic, and N.H. told her that she had just jumped out of
Hamlin’s car. J.H. described N.H. as “pretty incoherent, frightened, crying, [and]
banged up.” J.H. explained that N.H. called 911.
According to J.H., after that incident, “nonstop” phone calls began coming to
her residence, and the calls continued for many days, until J.H. turned off the
answering machine and the ringers on the phones, and eventually took the phone off
the hook. J.H. stated that Hamlin was the caller. According to J.H., Hamlin left “a
lot of voicemails[,]” which J.H. characterized as “very disturbing[.]”J.H. testified
that sometimes Hamlin called every two minutes. J.H. testified that when the calls
were coming in, N.H. appeared to be very frightened and tormented, and she would
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not come out of her room. According to J.H., N.H. appeared to be harassed, annoyed,
tormented, and alarmed by the calls. J.H. explained that N.H. had talked about going
to a women’s shelter because she did not feel safe at home. J.H. testified that Hamlin
“threatened to burn the house down.” Recordings of the voicemail messages Hamlin
left were admitted into evidence and published to the jury. J.H. explained that N.H.
had used drugs before and during her relationship with Hamlin, and J.H. testified
that she does not know where N.H. is.
Deputy Jacob Rodgers of the Montgomery County Sheriff’s Office testified
that he investigated the stalking allegation against Hamlin. Rodgers explained that
the first event that he investigated was “a report of a family violence incident which
took place at the victim’s residence on October 8th of 2017.” According to Rodgers,
Hamlin was the suspect, and Hamlin had fled the scene when Rodgers arrived.
Rodgers explained that N.H. was scared, shaken, and rattled, and she “expressed a
lot of fear and anxiety whenever she spoke about [Hamlin].” Rodgers testified that
because N.H. appeared to be rattled and fearful, he believed that “a physical
disturbance had occurred that had not amounted to bodily injury[,]” so he continued
to investigate until he found Hamlin at his residence. Hamlin admitted that a verbal
disturbance had occurred, but he denied touching or assaulting N.H.
Rodgers testified that the next incident he investigated was a dispatch call
regarding a criminal trespass or attempted burglary at the same residence on October
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16, 2017. Rodgers explained that he, Deputy Cranston, and others responded to the
911 call. While investigating the second incident, Rodgers discovered that between
12:00 a.m. and 4:32 p.m. (when the victim called 911), 357 calls were made from
Hamlin’s phone to N.H.’s phone. The third incident Rodgers investigated was at the
Beachcomber Inn in Galveston. Rodgers explained that he reviewed the
investigating officers’ records from the incident at the hotel and spoke with
Maglisceau. In addition, Rodgers investigated an account of “family violence assault
or vehicle disturbance[]” on January 21, 2018, about a mile from the victim’s
residence. According to Rodgers, Hamlin called the victim’s phone 196 times on
January 22, 2018; 145 times on January 24, 2018; and 235 times on January 25,
2018. Rodgers testified that his investigation confirmed his belief in the account
N.H. provided. In addition, Rodgers reviewed voicemail messages left on the phone
at the victim’s residence, which were offered into evidence and published to the jury.
Rodgers further testified that he investigated an alleged assault of the victim by
Hamlin that occurred in the parking lot of Lowe’s, and he took Hamlin into custody
and interviewed him. Rodgers also explained that while Hamlin was in custody, he
attempted “to solicit the assistance of his family members to . . . bother the victim[.]”
Hugo Saldana, the manager of Lowe’s in Spring, Texas, explained that he saw
a male and female in the parking lot, and he knew “something wasn’t right.”
According to Saldana, the male jumped out, started holding the female tightly, and
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they began walking toward the front of the store. Saldana explained that he contacted
the store’s loss prevention manager, Jay Davila. Davila testified that Saldana notified
him that “there was a couple involved in an aggressive argument in the parking lot.”
Saldana later saw the female walking slowly through the store, and he testified that
she had “a petrified look[,]” watery eyes, and she seemed “very, very frightened.”
Saldana explained that he approached her and asked if she needed help, and she told
him that her boyfriend had threatened her with a knife. Saldana testified that the
victim was crying, shaking, and “very distressed.”
Harris County Deputy Constable Victor Taylor testified that he investigated a
weapons disturbance involving Hamlin on January 26, 2018, in the parking lot of
Lowe’s. According to Taylor, N.H. looked emotional and scared, and she was
crying. Taylor reviewed the video footage from Lowe’s, which showed N.H., who
was the passenger in Hamlin’s vehicle, get out of Hamlin’s vehicle and start walking
toward the store’s main entrance. Taylor explained that the video showed Hamlin’s
truck following N.H. as she walked toward the store, and then Hamlin parked his
vehicle, got out, walked behind N.H., wrapped his arm around her, and started
walking “in an aggressive manner.”
Dr. Kathleen Latz testified that she holds a doctorate and a master’s degree,
and she teaches criminal justice courses, including victim studies courses. Latz
explained that her dissertation research focused on domestic violence and stalking,
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and she has “worked in the field of victim advocacy for a number of years[.]”
According to Latz, repeated abuse “breaks a person over time[]” and might cause
someone to self-medicate, and mental health issues can make it difficult for a person
to leave an abusive relationship. Latz testified that victims sometimes return to their
abusers or find that it is difficult to leave. Latz explained that domestic violence is
“more than just physical[]” and is “usually not something that happens in isolation,
but [it is] usually a pattern of behavior.” According to Latz, abuse can also include
intimidation, and she explained that when a victim tries to leave the relationship, the
abuser’s behavior tends to escalate, and the abuser might repeatedly attempt to
contact the victim. Latz testified that the cycle of violence includes three stages:
tension building, the acute battering incident, and the honeymoon phase. According
to Latz, it is common for victims to continue to have contact with their abusers.
ISSUE ONE
In issue one, Hamlin argues that the evidence is insufficient because the State
failed to prove all the elements of the stalking statute. Specifically, Hamlin asserts
that the State failed to prove that Hamlin’s repeated telephone calls harassed,
annoyed, alarmed, abused, tormented, embarrassed, or offended N.H. Hamlin
emphasizes in his brief that N.H. was not called as a witness, there was “no
indication” that N.H. reported Hamlin’s calls to the authorities, and N.H. wanted to
continue her relationship with Hamlin.
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In evaluating the legal sufficiency of the evidence, we review all the evidence
in the light most favorable to the verdict to determine whether any rational factfinder
could have found the essential elements of the offense beyond a reasonable doubt.
Brooks v. State, 323 S.W.3d 893, 902 n.19 (Tex. Crim. App. 2010) (citing Jackson
v. Virginia, 443 U.S. 307, 319 (1979)); Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007). The jury is the ultimate authority on the credibility of witnesses
and the weight to be given to their testimony. Penagraph v. State, 623 S.W.2d 341,
343 (Tex. Crim. App. [Panel Op.] 1981). An appellate court may not sit as a
thirteenth juror and substitute its judgment for that of the factfinder by reevaluating
the weight and credibility of the evidence. See Dewberry v. State, 4 S.W.3d 735, 740
(Tex. Crim. App. 1999); see also Brooks, 323 S.W.3d at 899. A reviewing court
must give full deference to the jury’s responsibility to fairly resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts. Hooper, 214 S.W.3d at 13. If the record contains conflicting
inferences, we must presume that the jury resolved such facts in favor of the verdict
and defer to that resolution. Brooks, 323 S.W.3d at 899 n.13; Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). In addition, we determine whether the
necessary inferences are reasonable based upon the combined and cumulative force
of all the evidence when viewed in the light most favorable to the verdict. Clayton,
235 S.W.3d at 778. We treat direct and circumstantial evidence equally. Id.
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Section 42.072(a)(1) of the Texas Penal Code provides that a person commits
the offense of stalking if, on more than one occasion and pursuant to the same
scheme or course of conduct directed at another person, the person knowingly
engages in conduct that constitutes an offense under section 42.07 of the Penal Code.
Tex. Penal Code Ann. § 42.072(a)(1). Section 42.07(a)(4) of the Texas Penal Code
provides that a person commits the offense of harassment if he “causes the telephone
of another to ring repeatedly or makes repeated telephone communications
anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse,
torment, embarrass, or offend another[.]” Tex. Penal Code Ann. § 42.07(a)(4). The
indictment alleged, inter alia, that Hamlin caused the telephone of N.H. or J.H. “to
ring repeatedly” on three occasions, making N.H. feel harassed, annoyed, alarmed,
abused, tormented, embarrassed, or offended and would have caused a reasonable
person to feel harassed, annoyed, alarmed, tormented, embarrassed, or offended.
The jury heard evidence that before the phone calls occurred, N.H. had been
agitated, edgy, emotional, and fearful, and had hidden in a cupboard because she
believed Hamlin had broken into the house. The jury also heard evidence that before
the phone calls, N.H. had spoken to a women’s shelter and had jumped from
Hamlin’s car and arrived home frightened, crying, and “banged up.” In addition, the
jury heard evidence that Hamlin called the residence for several days, leading J.H.
to turn off the answering machine and the ringers on the phones, and eventually take
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the phone off the hook. The jury heard J.H. testify that N.H. appeared to be
frightened and tormented when Hamlin was calling. J.H. testified that N.H. appeared
to be harassed, annoyed, tormented, and alarmed by the calls, and she explained that
Hamlin threatened to burn down her home. In addition, the jury heard the voicemails
Hamlin left on the phone and heard that Hamlin called N.H.’s phone 196 times on
January 22, 2018, 145 times on January 24, 2018, and 235 times on January 25,
2018.
Viewing the evidence in the light most favorable to the verdict and deferring
to the jury’s authority regarding the credibility of witnesses and the weight to give
their testimony, we conclude that a reasonable factfinder could have found the
essential elements of the offense beyond a reasonable doubt. See Tex. Penal Code
Ann. §§ 42.07(a)(4), 42.072(a)(1); Brooks, 323 S.W.3d at 902 n.19; Clayton, 235
S.W.3d at 778; Hooper, 214 S.W.3d at 13; Penagraph, 623 S.W.2d at 343.
Accordingly, we overrule issue one.
ISSUE TWO
In issue two, Hamlin argues that the trial judge erred by admitting evidence
of extraneous offenses. We review a trial court’s admission of extraneous offenses
or acts under an abuse of discretion standard. Moses v. State, 105 S.W.3d 622, 627
(Tex. Crim. App. 2003); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.
App. 1991) (op. on reh’g). We must uphold the trial court’s ruling if it is within the
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zone of reasonable disagreement. Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim.
App. 2002).
At the beginning of the trial, the trial judge stated as follows:
There [were] some off-record discussions about the . . . history of
interactions between Mr. Hamlin and the complainant . . ., there are . .
. some extraneous incidents that led up to the . . . charged incident from
January 22nd and January 25th in the indictment. I think based upon
the type of charge and just kind of common sense how these kind of
circumstances arise, it is the ruling of this Court that the State be
allowed to go into these extraneous matters in front of the jury to
establish the history of the relationship. And, also, it goes . . . to the
defendant’s intent and motive in this matter.
As a prerequisite to presenting a complaint for appellate review, the record must
show that the complaint was made to the trial court by a timely objection that stated
the grounds for the ruling sought with sufficiency to make the trial court aware of
the complaint. Tex. R. App. P. 33.1(a)(1). The trial judge’s comments do not
mention Rules 403 or 404(b) of the Texas Rules of Evidence, nor do they indicate
the content of the off-the-record discussions that occurred or the specific acts to
which defense counsel referred off the record.
Assuming without deciding that Hamlin properly preserved error, he still does
not prevail on issue two. Rule 404(b) of the Texas Rules of Evidence provides that
evidence of a crime, wrong, or other act is not admissible to prove a person’s
character to show that the person acted in accordance with the character on a
particular occasion, but it may be admissible for another purpose, “such as proving
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motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Tex. R. Evid. 404(b). The list of enumerated purposes
for which an extraneous offense may be admissible under Rule 404(b) is neither
exclusive nor exhaustive. Montgomery, 810 S.W.2d at 388. Evidence of extraneous
acts may be admissible if it has relevance apart from its tendency to prove a person’s
character to show that he acted in conformity therewith. Id. at 387. However, the
fact that evidence of extraneous acts is introduced for a purpose other than character
conformity does not, standing alone, make the evidence admissible. See Webb v.
State, 36 S.W.3d 164, 180 (Tex. App.—Houston [14th Dist.] 2000, pet, ref’d).
Proffered evidence must also be relevant to a fact of consequence in the case. Id.
Evidence is relevant if it tends to make the existence of any fact of consequence
more probable or less probable than it would be without the evidence. Tex. R. Evid.
401.
Rule 403 of the Texas Rules of Evidence provides as follows: “The court may
exclude relevant 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. “Rule 403 favors admissibility of relevant evidence, and the
presumption is that relevant evidence will be more probative than prejudicial.”
Montgomery, 810 S.W.2d at 389. Once a trial court determines that extraneous
13
offense evidence is admissible under Rule 404(b), the trial court must, upon proper
objection by the opponent of the evidence, weigh the probative value of the evidence
against its potential for unfair prejudice. Id.; see Tex. R. Evid. 403.
[A] Rule 403 analysis 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); see also
Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004). However, if the only
value of extraneous offense evidence is to show character conformity, the balancing
test required by Rule 403 is obviated because the “rulemakers hav[e] deemed that
the probativeness of such evidence is so slight as to be ‘substantially outweighed’
by the danger of unfair prejudice as a matter of law. Montgomery, 810 S.W.2d at
387 (quoting United States v. Beechum, 582 F.2d 898, 910 (5th Cir. 1978)).
We will not overturn a conviction if, after an examination of the entire record,
we have fair assurance that the erroneous admission of extraneous-offense evidence
either did not influence the jury or had but slight effect. Taylor v. State, 268 S.W.3d
571, 592 (Tex. Crim. App. 2008). When the trial court provides a limiting instruction
regarding the jury’s consideration of extraneous offense evidence, we presume that
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the jury followed the trial court’s instructions. See Renteria v. State, 206 S.W.3d
689, 707 (Tex. Crim. App. 2006).
Based on the record as a whole, we conclude that the trial court did not err by
admitting the extraneous offense evidence because it was relevant to show Hamlin’s
motive and intent. See Tex. R. Evid. 404(b)(2); Montgomery, 810 S.W.2d at 387.
We also conclude that the trial court did not err by implicitly determining that the
evidence did not tend to suggest deciding the case on an improper basis or confuse
or distract the jury. See Tex. R. Evid. 403; Gigliobianco, 210 S.W.3d at 641-42.
Furthermore, the trial court gave the jury a limiting instruction, and we presume that
the jury followed the trial court’s instructions. See Renteria, 206 S.W.3d at 707.
After examining the entire record, we have fair assurance that the admission of
extraneous-offense evidence either did not influence the jury or had but slight effect.
See Taylor, 268 S.W.3d at 592-93. Accordingly, we overrule issue two and affirm
the trial court’s judgment.
AFFIRMED.
_________________________
STEVE McKEITHEN
Chief Justice
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Submitted on April 6, 2020
Opinion Delivered October 28, 2020
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
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