Jeremy Alan Andrews v. the State of Texas ( 2022 )

AFFIRMED as MODIFIED and Opinion Filed December 28, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00388-CR
No. 05-21-00389-CR
JEREMY ALAN ANDREWS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-81590-2021
MEMORANDUM OPINION
Before Justices Myers, Carlyle, and Goldstein
Opinion by Justice Goldstein
Following a jury trial, Jeremy Andrews was convicted on two counts of
assault on a woman he was dating: (1) third-degree assault causing bodily injury1
and (2) second-degree assault by impeding breathing and circulation,2 both enhanced
by a prior conviction for family violence. The jury assessed punishment at twenty
years’ confinement on the first count and life imprisonment on the second. Appellant
claims the trial court erred by admitting certain extraneous evidence pursuant to
1
TEX. PEN. CODE ANN. § 22.01(b)(2)(A).
2
Id. § 22.01(b)(2)(B).
Code of Criminal Procedure article 38.371 and the rules of evidence. We affirm in
this memorandum opinion. See TEX. R. APP. P. 47.4.
Appellant complains the evidence was (1) not in the indictment; (2) confused
the jury; (3) inflamed the jury’s passions; and (4) was more prejudicial than
probative. He suggests the fact that the jury would also hear about his prior
adjudicated offense, an element of the charged offense in this case, had an effect as
well. He recites the concern that the jury reached its verdict based on “character
conforming acts and fear rather than the evidence presented.”
But beyond reciting legal standards and providing a bare history of the hearing
admitting the 38.371 evidence, appellant does little else. He mentions in his
statement of facts that six of the eight witnesses the State presented in its case in
chief testified to extraneous assaultive acts, citing the fourth and fifth volumes of the
reporter’s record as a whole but no associated page references. He notes that, at
punishment, the State presented seven more witnesses testifying to assaultive
violence but does not point us to any punishment-phase objection on the grounds he
raises on appeal. See TEX. R. APP. P. 33.1. Appellant provides exactly zero examples
of the testimony about which he complains, no citations to the record directing us to
the testimony, and no analysis why admitting the testimony of any witness, much
less specific witness testimony, was an abuse of discretion. See Lewis v. State, No.
AP-77,045, 2017 WL 1493489, at *20 (Tex. Crim. App. 2017) (not designated for
publication) (inadequate briefing to generally complain about extraneous offense
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evidence without specifically identifying it). Appellant fails to explain how the
alleged errors were harmful, other than to complain—without citation—that the
State argued the jury should convict him “because he is a bad person regardless of
the strength of the underlying facts of the case.” See Wilson v. State, 473 S.W.3d
889, 901 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (citing Cardenas v. State,
30 S.W.3d 384, 393 (Tex. Crim. App. 2000)) (inadequate briefing when appellant
fails to address harm). Appellant’s issues on appeal are inadequately briefed and
present nothing for our review. See Lucio v. State, 351 S.W.3d 878, 896–97 (Tex.
Crim. App. 2011); TEX. R. APP. P. 38.1(i).
Assuming appellant had adequately briefed his complaints, they fail. We
review a trial court’s decision to admit evidence of prior crimes, wrongs, or bad acts
for an abuse of discretion. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App.
2001). Under that standard, we affirm admissibility rulings when they are within the
zone of reasonable disagreement. James v. State, 623 S.W.3d 533, 541 (Tex. App.—
Fort Worth 2021, no pet.). We have reviewed the record and cannot find a ruling
that falls beyond the zone of reasonable disagreement, considering Code of Criminal
Procedure article 38.371 and the applicable rules of evidence.
Article 38.371 “provides another non-character-conformity purpose for
admitting extraneous-offense evidence” in addition to those listed in Texas Rule of
Evidence 404(b)(2). James, 623 S.W.3d at 545. The court allowed the victim in these
cases to testify during the State’s case-in-chief regarding appellant’s prior
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continuous physical and mental abuse of her. This evidence showed the physical and
mental control appellant exerted over the victim and explained her fear of him, which
led to her reticence to report the abuse to authorities and her repeated decisions to
remain in a relationship with him. See id. at 545–46; Brickley v. State, No. 03-19-
00784-CR, 2021 WL 1418978, at *8 (Tex. App.—Austin Apr. 15, 2021, pet. ref’d)
(mem. op., not designated for publication) (evidence of past incident of abuse
admissible under article 38.371 because it contextualized the nature of the
relationship between defendant and victim and helped explain some of victim’s
conduct during the incident and her hesitancy in reporting the offense); TEX. CODE
CRIM. PROC. ANN. art. 38.371; TEX. R. EVID. 404(b).
Regarding the rule 403 complaint, we cannot agree that the evidence at trial
misled the jury, caused undue delay, or was unnecessary and cumulative. Though
damaging to his case, appellant has not overcome the presumption that “relevant
evidence is more probative than prejudicial.” See Montgomery v. State, 810 S.W.2d
372, 389 (Tex. Crim. App. 1990) (op. on reh’g). The extraneous abuse evidence was
probative of appellant’s culpability for the charged offenses, which were strikingly
similar to the others. See Miller v. State, No. 06-20-00015-CR, 2020 WL 4044717,
at *2 (Tex. App.—Texarkana July 20, 2020, no pet.) (mem. op., not designated for
publication) (evidence of prior assaults against the same victim bears on the nature
of the relationship between defendant and victim and is relevant).
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To evaluate the probative and prejudicial value of evidence, we consider
several factors: (1) the inherent probative force of the evidence; along with (2) the
proponent’s need for it; balanced against any tendency of the evidence (3) to suggest
a decision on an improper basis, (4) to confuse or distract the jury from the main
issues, (5) 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).
Under this framework, the victim’s testimony regarding appellant’s prior
abuse established the nature of their relationship, see TEX. CODE CRIM. PROC. ANN.
art. 38.371(b); and was not cumulative because the repeated nature of the abuse over
time showed the complete picture of the relationship, see Camacho v. State, No. 01-
20-00282-CR, 2021 WL 2832970, at *8 (Tex. App.—Houston [1st Dist.] July 8,
2021, no pet.) (mem. op., not designated for publication). The evidence pertained to
appellant’s history of abuse against the victim, her fear, appellant’s level of control,
the victim’s reluctance to report and decision to stay. This evidence contextualized
the short-term relationship from April to September 2018; established relevance
beyond character conformity and demonstrated appellant’s intent to commit the
charged offenses near the end of September 2018. See James, 623 S.W.3d at 547–
48. As noted, the extraneous abuse evidence explained the delay in the victim
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reporting the charged assaults as well as her reluctance to disclose it even during the
police interview, which appellant used to attack her credibility during trial. See
James, 623 S.W.3d at 551.
Also, presenting the extraneous evidence did not take an inordinate amount of
time. Only two witnesses during the State’s guilt-phase case-in-chief testified
specifically to extraneous assaults.3 The victim’s extraneous testimony took 30 of
her roughly 150 pages of testimony. It took 60 pages for the victim to testify
regarding the charged offenses. See Hernandez v. State, 203 S.W.3d 477, 481 (Tex.
App.—Waco 2006, pet. ref’d) (upholding admission of extraneous offense over rule
403 objection when it took less time to develop extraneous offense than charged
offense). The other extraneous witness spent some 4 pages of the transcript testifying
regarding the abuse she saw appellant visit on the victim, and appellant’s counsel
did not cross-examine her. See id.Finally, the extraneous evidence was violent in nature, but was similar to the
charged assaults, both including verbal threats, physical beatings, and strangling.
The trial court gave limiting instructions 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.
3
Two others were the victim’s co-worker, who described her observations of the victim, and the
victim’s neighbor, who provided observations of appellant and the victim.
The State also introduced a video of appellant’s arrest by Trophy Club police, but he does not mention
this video in his brief, and we construe no complaint regarding the video.
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There is no requirement for the trial court to perform the balancing test on the
record, and when—as here—the record is silent, we presume the trial court
performed the appropriate balancing test before admitting the evidence. See
Williams v. State, 958 S.W.2d 186, 195–96 (Tex. Crim. App. 1997); James, 623
S.W.3d at 551. On this record, were the issues adequately briefed, we could not find
the “clear disparity” between the prejudice this evidence may create and the
significant probative value in this case. See Hammer v. State, 296 S.W.3d 555, 568
(Tex. Crim. App. 2009). Appellant suffered no unfair prejudice. See Pawlak v. State,
420 S.W.3d 807, 811 (Tex. Crim. App. 2013) (“[A]ll evidence against a defendant
is, by its very nature, designed to be prejudicial.”). Rule 403 addresses only unfair
prejudice. Id. (citing Wheeler v. State, 67 S.W.3d 879, 889 (Tex. Crim. App. 2002)
(Keller, P.J., concurring) (“Rule 403 renders evidence inadmissible only when the
prejudice involved is ‘unfair.’”). The trial court’s actions did not amount to an abuse
of discretion given the allegations against appellant, the history between him and the
victim, and the interplay between article 38.371 and the rules of evidence.
To the extent appellant complains of extraneous evidence at punishment, he
has failed to point us to an objection to that evidence during the punishment phase,
and we have found none. Were it adequately briefed this issue would present nothing
for our review. See TEX. R. APP. P. 33.1.
On our own review, we note that the judgment in trial cause number 219-
81590-2021, appeal number 05-21-00388-CR, lists the incorrect statute of
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conviction. Instead of “22.01(b-2) Penal Code”, it should read “22.01(b)(2)(B)” and
we order that portion of the judgment modified to speak the truth.4
We overrule appellant’s issues and affirm the judgment of the trial court as
modified.
/Bonne Lee Goldstein/
BONNIE LEE GOLDSTEIN
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
210388F.U05
4
This Court “has the power to correct and reform the judgment of the court below to make the record
speak the truth when it has the necessary data and information to do so.” Asberry v. State, 813 S.W.2d 526,
529 (Tex. App.—Dallas 1991, pet. ref’d); accord Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App.
1993).
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JEREMY ALAN ANDREWS, On Appeal from the 219th Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 219-81590-
No. 05-21-00388-CR V. 2021.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Goldstein. Justices Myers and
Carlyle participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
On page 1, under “Statute for Offense,” we REMOVE the words
“22.01(b-2) Penal Code” and INSERT “Penal Code § 22.01(b)(2)(B)
in their place.
As REFORMED, the judgment is AFFIRMED.
Judgment entered December 28, 2022
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JEREMY ALAN ANDREWS, On Appeal from the 219th Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 219-81591-
No. 05-21-00389-CR V. 2021.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Goldstein. Justices Myers and
Carlyle participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered December 28, 2022
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