Opinion issued July 20, 2023

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 21
- 00691
- CR

—— — ———————— CHRISTOPHER WAYNE MCDONNELL , Appella nt V . S TATE OF TEXAS , Appell e e
On Appeal from the County Court Colorado County, Texas T rial Court Ca se No. 25734

O P I N I O N A jury convicted appellant, Christopher Wayne McDonnell, of assaul t

cau sing bodily injury against a family member , a class A mi sdemeanor

. 1 T he trial court assessed McDonnell ’ s punishment at one year ’ s confinement i n the county

1 See T EX
. P ENAL C ODE § 22.01(a)(1), (b), (b

– 3).2

jail , with all but two consecutive weeks to be pro bated for two years. In three issues, McDonnell argues that the trial court abused its discretion (1) in denying his reque st for a m i str ial; (2) by permitting the State to introduce evidence th at he had previously threatened and assaulted the complain ant; and ( 3) in finding that the probative value of extraneous evidence w a s not substantially outweigh ed by the danger of un fai r prejudic e . W e affirm

. Background McDonnell married the complainant in this case, N

. Orsak, in 2006

. Sometime prior to May 2019, McDonnell and Orsak separated and Orsak filed for divor ce. On Ma y 4, 2019, Orsak had sp ent part of the day with her and McDonnell ’ s minor s on and s ome of her son ’ s friends before return ing their so n to McDonnell ’ s home. Orsak dropped their son off and picked McDonnell up so that they could att end a Kentucky D erb y party together

. Orsak testified that McDonnell had already had some drinks before they left his house fo r t he party

. At the p arty , she an d McDon nell both ha d drinks. Orsak testified that McDonnell “ had at least two mint juleps [at the party] and then he

sw itched to ju st straight b ourbon. ” According to O r sa k, McDonnell accus ed her of hitting on another guy at the party an d t old h er that sh e was embarras sing him. Orsak stated that McDonnell “ was slurring his words and he was drunk, ” so she3

decided it was time for the m to l eave. Orsak drove and McDonnell sat in the passenger seat. Orsak testified that, on t he drive home, M cDonnell p roceed ed “ t o cuss at [he r] and call [her ] a slut and a whor e . ” She stated that McDonnell threw a 20

- ounce YETI tumbl er full of ice water at the side of her fac e. She was trying to drive and asked h im to stop, but he picked up a sm aller YETI tumbler cup and thre w tha t at her face as well. After i t st ruck the side of her fac e, M cDonnell told Orsak, “ I don ’ t think that was hard enough , ” and threw it again, aiming for her window . McDonnell then struck h er with his arm and the back of h is hand, and he pulled her hat off o f her head and st ruck her with tha t as well. Sh e stopped the car and told him to get out, bu t he would not exit the vehicle . She drove the rest of the way to his h o me, where he continued to yell at her. He asked for her phone, telling her he was going to r ea d her text m ess ages becaus e he b elieved she was “ texting all these men

. ” Once he had her phone, he exited the car and wen t into his home. Orsak testified that after McDonnell left her c ar, her “ face was hur ting so bad

. ” She decided to go to the doctor be ca use, “ when h e h it me before I had broken a bone in my face

. ” McDonnell objected to this testimony , and the trial

cou rt sustained the objection. The trial court granted McDonnell ’s reque st for an inst ruction to the jury to disregard , but it deni ed his req ue st for a mis tri al.4

O rs ak went on to testify that she drove to the e mergency room . She testi fied that the YETI cup and McDonnell ’ s hand had cause d “ a lot of pain ” when they struck her. However, he r “ x - rays did not show any bro ke n bone s. ” The em ergency

ro om staff calle d t he police and Orsak reported the ass ault. On cross

- examination , Orsak ack nowledged that she attended an As tros game with McDonne l l and their son four days after the incid ent. O rsak testified that it was their son ’ s thirt eenth bi r thday , and t hey had the gam e planned “ for quite some time. ” Seve ral d ays after the assault , she also celebrate d Mother ’ s Day with McDonnell, their son, and both her an d McDonnell ’ s mothers , which, again, had been planned since bef

ore the assault

. Orsak al so acknowle dg ed that she pic ked McDonnell ’ s car up after he was ar rested in conne ction with the assault and pos t ed bond using his money so that he could be released from jail . She stated that she di d this because their son asked he r “ to help his da d out ” a nd she want ed “ to do anyt hin g [she could] t o try to preserve some version of a family for him. ” Finally , Orsak a c knowledged that she went on a va cation with McDonnell a couple of months after the as sault

. She testified t hat she did so because she “ just

wan ted to try to make things wo rk, whether it worked as being separated and friendly, I

— I

— I don ’ t know, I j ust wa n t ed to try to make peace. ” She stated that she was “ afrai d to not have things be peacef ul ” a nd that she was “ v ery afraid ” of McDonnell. O rsak tes tified that , despite the iss ues in their marriage and the fact5

that she had filed for divorce, she had still ho p ed that they might work things out

. She further testified that, even though they were divorced at the time of trial, sh e would still have to “ de al with ” Mc Do nnell “ forev er ” because they have a child together

. As part of his cross

- examination, McDonnell ’ s attorney presented evidence , inc luding photog raphs, of the va rious outings and communications between
McDonne ll and Orsak following the assaul t. The S t ate o bjected rep eatedly, arguing that the e v idence was not relevant and asserting that it called O rsak ’ s credibility into question. T he S t ate argued that, if McDonnell was allo wed to intro duce evidence of their ong oing relationship, then the S t ate should be p er mitted to
p resent evidence of other tim es that McDonnell had assaulted Orsak as well as expert testimony on the common responses to domestic viole nce. The trial court denied t he State ’ s objections in connectio n with the photographs and testim o ny of the b al l game, M o ther ’ s D ay event , and vaca tio n. McDonnell ’ s attorney also pre sented an email from Orsak to McDonnell that contained information she h ad found for him to help him enter his plea of not guilty in this case. McD onnell also sought to i ntroduce int o evidence a n email in which O rsak sta ted t hat she would buy a gun for McDonnell to replace on e that she had taken with her when they s eparated . The State again objected , and the trial6

court ruled that it would admit the email , “ but I ’ m going to allo w [the S tate] to g o into a little further extrane ous information to explain the possible relations hip. ”
T he tr ial court provid ed a limiting instruction o n the record, and the State question ed Orsak about whether McDonnell had assaulted her prior to the May 4, 2 01 9 incident . She testified that he had ass aulted her “ [m ]ore than ten [times]

—

numerous ” times. O rsak eventually d escribe d two specific incidents

— one in which he pushed her, and another in which he punched her in the fac e. S he testified that she had fi led a police rep ort regarding an incident that had oc curred in 2016. Orsak further testified that M cDonnell had threatened her and asked her not
to te stify against him in this case. The S t ate presented screenshots of text messages that McDonnell had s ent t o O r sa k in 2021, prior to the trial . The text m essage s included se xually

- explicit pic tur es that McDonnell threatened to show to the court and to her curren t and former boyfriends. Orsak stated that she “ k n ew at the time they c ame in late that night, that [McDo nn ell] was t hreatening me to not testify be cause he was going to show these kind s of pictures to the Court to make me look bad. ” Orsak testified about a nother threat made by McDonnell in 2021 , testifying that he told her “ that now that he didn ’ t have a di v or c e attorne y who had been keeping him with a mu zzle, that he was going to do everything he could to destroy me, now and even after this court case was over, that it would never end. ”7

In addition to Orsak ’ s testimony , the State provided testimony from M. H il l,

a n expe rt regarding common chara cteris tics of ba ttered women. She provided general infor mation a bout the reasons abused women stay with their abusers and the reasons t hey sometimes recant allegation s or request that criminal charges be dismissed

. McDo nn ell ’ s fath er, Wayne McDonnell, testified that he attended the Astros games wit h McDonnell, Orsak, and their son. He stated that Orsak was friendly, she did not say that she had been ass aulted, a nd he did not observ e any bruising or inju ries

. Orsa k ’ s moth er testified that she had obs erved that McD onnel l got ang ry when he was intoxicated and that she had seem him angry on “ m any o ccasions. ” She stated that McDonnell could be “ [v]ery loud, just loud language, abusive, l oud talking, very angry, ” and he wo uld d ir ect this a nger at Orsak . She described on e

o cc asion in which she heard McDonnell and O r sak ar guing in the next room , then she heard something being thr own, and then observed that Orsak ’ s “ mouth was bleeding ” when s he saw her. McDonnell himself testi fied, s tating tha t he had “ a lot ” to dr ink the d ay of the Kentucky D erby party. H e testified that he and Orsak had a verbal a ltercation that star ted when she “ lit into ” him about something. He denied striking O rsak . He
te stified that he remembered a YETI c up, h ow ever, be ca use Orsak used one to break the wind ow of his vehic le on a prior occasion.8

He testifi ed th at Ors ak left her phone with him and w rongly accused him o f taking it

. When he told her he did not have it , s he “ w ent ballistic, ” destr oying a pair of his sunglass es, a hat, and his key fob. H e f ound her phone the next morning after he was sober and returned it to her. He t estifie d that he did not assault Orsak. The jury charge included a n instruction regar d ing extr aneou s - offense
t estimony: During t h e trial, you heard evidence that the defendant m ay ha ve committed wrongful acts not charged in the information. The other wrongful acts, being alleged assaults, ot her than charged in the information. The state offered the evid ence to con textualize the n atu re of th e relationship b etween the victim and th e def endant and to show the def endant ’ s cons ciousness of guilt. You ar e not to consider that evidence at all unless you find, beyond a reaso nable doubt, that the defendant d id, i n fact, com mit the wrongful ac t. Those of you who believe the defendant did th e wro ngful act m ay consider it. Even if you do find that the defendant committ ed a wrongful act, you may consider this evidence only fo r the limited purpose I have described . You may not co n sider this evid enc e to pro v e that the defendant is a bad person an d for this reason was likely to commit the charged offense. In othe r words, you should consider this evidence only for the specific , limited purpose I have described. To con sider this evide nce for any othe r p urpose w o uld be impro p er. The jury found McDonne ll gu ilty. McDonnell now challenges the trial court ’ s denial of his motion for mistrial and admission of extran eous - offense evidence tha t he had assaulted and thr eatened Ors ak on other occasions besi de th e in cident w ith which he was charged in this case.9 D enial of Mistrial In his first issue, McDonnel l argues that the trial court abused its dis cretion in den ying his motion for mistrial in connection with Orsak ’ s unprompted
st atement that “ when [McDonnell] hit m e befor e I had a broken bone in my face. ” A. Stan dard of Review We review the denial of a motion for mistrial for an abuse of discretion. Balderas v. State , 517 S.W.3d 756, 783 (Tex. Crim. App. 2016); Archie v. State , 221 S.W.3d 695, 699 (Tex. Crim. App . 20 0 7). In a p p lying an abuse

- of

- discretion
stan dard of r eview, we uphold the trial court ’ s decision to deny a mistrial “if it was within the zone of reasonable disagreement.” Archie , 221 S.W.3d at 699 ; see also Griffin v. State , 57 1 S.W.3d 404, 4 16 (Tex. App.

— Housto n [1st Dist.] 2 0 19, pet.

r ef ’ d). In dete rmining whether a t rial cour t abused its discretion by denying a mistrial, we balance three factors: (1) the severity of the misconduct (including its prejudicial effect), (2) the e ffectiveness of the cur ative measur es taken, and ( 3 ) the

ce r t ainty of the c onviction or punish ment asse ssed absent the misconduct. Hawkins v. State , 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)

. We reverse only if no reasonable view of the record could s u p port the trial cour t ’ s ruli ng. Se e McQu arrie v. State , 380 S.W.3d 145, 150 (Tex . Crim. App. 2012).10

B. Analys is As the State questioned Orsak about the night of the assault , the prosecutor aske d , “ And wh at did you do when you left the house [after dropping McDonnell off followin g the as sault]? ” O rs a k answered, “ I

— my face was hurting so b ad,
my

— when he hit me before I had broken a bone in my face before, so I said I ’ m going to go to th e doctor. ” McDonnell objected, pointing out that the trial court had ordered that the parties not bring u p extraneous offenses wi tho ut approach ing the court , “ and the witness has just blurted a prior incident w here she alleges he broke her bone. ” The State responded that the r eference to a prior assault was

“ inadvertent

. ” The trial court ruled that i t would instruct the jury to disreg ard O rsak ’ s statement, an d McDonnell ’ s counsel asked for a cura tive instructio n an d requested

“ a mistrial based on witness misconduct. ” The trial court denied the motion for mistrial , but it instructed the jury to disrega rd Orsak ’ s statement abou t the prio r inc ident : What you just heard from this witness about a prior act is not to be c onsidered by you, it ’ s not to be thought of or talked about duri ng your deliberations. It ’ s going to be part of this record; however, it do es not c oncern what is on trial her e today, and that is only the offense that [the State] read to you in the info rmat ion at the beginning of this trial. That is what the defendant i s accused of in this matter, nothing else today. So confine your thoughts, your del iberations, all of your eff orts in this matter only to what is in the information that the defendant is a ccus ed of formally and on trial for to day. Do you understand that co mpletely? Anyone have any question about that?11

No one in the jury voiced an y ques ti ons or conce rns, and the tr ial co ntinued. McDonnell argues that the trial court abused its discretion in de nying his motion for mistrial following Orsak ’ s spontaneous state m ent that McDonnell had struck her before and had broken a bone in her face. We conc lude, howeve r, that
any pre judice ca used by Orsak ’ s comment was cured by the trial cou rt ’ s instruction to the jury t o disregard her statement. The conduct in the case was not very se ver e. Orsak ’ s statement was unsolicited and unre sponsive t o the St ate ’ s qu estion. He r
st atement was s hort, and it did not invo lve an extensive amo unt of testimony

. See Hawkins , 135 S.W.3d at 77 ( holding that one fact or court to consider in determining wh ether trial court erred in den ying mistrial is severity of misco nduct ).
F ollowin g McDon nell ’ s objection, th e ju ry was immed iately instructed to disregard Orsak ’ s stateme nt. See id. (holding that courts should consider

e ffectiveness of curative measures ta ken ). “Ordinarily, a prompt instruction to disregard will cure e rror associated w ith an improper question an d answer, even

o ne regarding extraneous offenses.” Ovalle v. State , 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) ; Hernandez v. S tate , 454 S.W.3d 643, 6 49

– 50 (Tex. App.

— Houston [1st Dist.] 2014, pet. ref ’ d ). Nothing in th e record dem onstrat es that the jury was confused about the trial court ’ s ins truction to disregard or that the jurors failed to follow it. See Gamboa v. State , 296 S.W.3d 574, 580 ( Tex. Crim. App.12

2009) (holding th at “[i]nstructions to the jury are gen erall y considered suffic ient to cure impropr ieties that occu r during trial” and that courts “generally presume that a jury will follow the judge ’ s instructions”)

. M cDonnell argues that witness credibility was e speciall y important in this case be cause his a nd Or sak ’ s accoun ts of t he events differe d

. He asserts that he was har med by her testi mony that he had pr eviously broken a bone in her face

“ because his credibility was sullied before he even testified. ” This argument disregards the fact that the evidence o f th e volatile n ature o f their relationship was int r oduced through other testimony as t he trial progressed and before he testified on his own behalf

. This included testi mon y that McDonnell had assaulted Orsak on numerous other occasions and evidence that Orsa k had filed a police report against
McDo nnell on at leas t one other occasion. G ranting a motion for mistrial is appropriate only when “the objectionable events are so emotionally inflammatory that curative instructions are not likely to prevent the ju ry f

r om bein g unf

air l y p rejudiced against th e defendant .” Ar chie v. State , 340 S.W.3d 734 , 739 (Tex. Crim. App. 2011) ; see also Hawkins , 135 S.W.3d at 77 ( holding that mistrial is remedy for improper conduct that is “so prejudicial that expenditure of furt her t ime and exp e nse wou l d be wasteful and f utile” ). In ligh t of the limited nature of O rsak ’ s rema r k and the additional evidence of McDonnell ’ s prior abuse of Orsak , we cannot say that O rsak ’ s13

unsoli cited statement played a significant rol e in the j ury ’ s deci s ion to convi ct McDo nnell despite the trial court ’ s inst ruction to disregard , nor w as it s o highly prejudicial and incurable that the trial court erred by denying the motion for mistrial

. See Hernandez , 454 S.W.3d at 650 ; see also Hawkins , 135 S.W.3d at 77 (holding tha t cou rt s should consider ce r t ain ty of c onviction absent misconduct )

. We o verrule McDonnel l ’ s first issue.

Extraneous - Offense Ev idence In his second and third issues, M cDonnell argues that the trial court erred in

a llowing evidence that McD o nnell had p rev iously th reatened an d assaulte d Orsak. A. St andard o f Review We review the tr i al court ’ s ruling on the admissibility of evidence for an abuse of discretion , and we will not reverse if it is within the zone of reasonable disagreement. Ti llman v. State , 354 S.W .3d 425, 435 (Tex. C rim. App. 2011)

. In general, relevant evidence is adm i ssible. T EX
. R. E VID . 402. Relevant evidence is evidence that tends to make a fact of consequence mo re or less probable than it would be without the evidence. T EX
. R. E VID
. 401; see Shuffiel d v. State , 189 S.W.3 d 782, 786

– 87 (Tex. Crim. App. 2006)

. E vide nce of a crime, wrong , or act other than the offense charged is not admissible to prove that the defendant acted in conformity with his character but may be admissible for other p urposes. T EX
. R. E VID . 404(b) (1) (“Evidence of a14

crime, wrong, or other act i s not admissible to prove a person ’ s character in order
to show that on a p articular occasion the person acted in accordance with the ch aracter. ”); see also D e voe v. Stat e , 354 S. W.3d 457, 46 9 (Tex. Crim. App. 20 11) ; Robles v. State , 85 S.W.3d 211, 213 (Te x. Crim. App. 2002) (evidence of extraneous offenses is normally inadmissible). However, s uch evidence may be admissible when it has “relevance apart from cha racter confo rmity,” such as provi ng “motive, opportuni ty, intent, preparation, plan, knowledge, id entity , absence of mi stake, or lack of ac cident.” T EX
. R. E VID . 404(b)(2); see also Devoe , 354 S.W.3d at 469. In addition to Rule 404 (b), Texas Code of Crimin al Procedure article 38.371 appli es in family

- violenc e cases and p ermi ts the introducti on of evide nce “ of all relevant facts and circumstances that would assist the trier of fact in determining whether the actor committed the offense. ” T EX
. C O DE C RIM
. P ROC
. a rt. 38.37 1(b). Thi s includes the admission of evid ence “regar ding the nature of the relationsh ip between the actor and the alleged victim.” Id. While the provision expressly states that it is “ subject to the Texas Rules of Evidence [and ] other applicab le law, ” and that “ [t]his ar ticle does not permit the presentatio n of character evidence that woul d otherwi se be inadmissible under the Texas Rule s of Evidence or other applicable law, ” see id. art. 38.371(b)

- (c), courts have held that a rticle 38.371

“ expr essly provid es for the admission of extraneous offense evidence r egarding the15

nature of the relati onship between an accused and a complai nant. ” James v. State , 623 S.W.3d 533, 545 (Tex. App.

— Fort Worth 2021, no pet.). “ A reas of relevant and admissible extr aneous - offen se evidence that comp lies with article 38. 371,” and
t hat serve non

- character

- conformit y purposes in compliance with Rule 404(b), “include evidence that: (1) explains why a victim of domestic violence i s unwilling to cooperate with prosecution; (2) confirms the victim ’ s initial

— and later recanted

— s tatements t o police; or (3) contextualizes t he nature of the relationship between victim and assailant.” Fernandez v. State , 597 S.W.3d 546, 565 (Tex. App.

— El Paso 2020, pet. ref ’ d) (citing Gonzalez v. State , 541 S .W.3d 306, 312 (Tex. App.

— Houston [14th Di st.] 2017, no pet.) ) ; see Camacho v . State , No. 01

- 20

- 00282

- C R , 2021 WL 2832970, at * 6 (Tex. App.

— Houston [1st Dist.] July 8, 2021, no pet. ) (mem. op., not designated for p ublication ). Even when evidenc e is relevan t or admissible under Rule 404(b) or anoth er rule of evidence, a court may nevertheles s exclude the e vidence “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 dela y, or needlessly pres enting cumu lative evidence. ” T EX
. R. E VID
. 4 03

. To determine whether to admit or exclude evidence over a Rule 403 objection, the trial court

mus t balance the following factors: (1) the inherent probativ e force of t he prof fered it em of evidence along with ( 2) the p rop onent ’ s need for that evidence ag ainst (3) any16

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 mai n issues, (5 ) any t endency of the evidence to be given undue w eig ht by a jury that has not been eq uipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence w ill consume a significant amount of time or merely repea t evide nce alre ady ad mitted. G igliobianco v. State , 2 10 S.W.3d 637, 641

– 42 (Tex. Crim. App. 2006). B. Analysi s Mc Donnell argues that the trial court abus ed its dis cretion by admitting

e vidence that he ha d p reviously assaulted Orsak and that he ha d t h reatened her with regard to h er testim ony in this case. The t rial court originally ex cluded an y testimony or refe rence to other assaults or threats that McDonnell had allegedly made again st Orsak. As the trial progressed , however, Mc Donnell ’ s theory of the

case wa s that Orsak was lyin g about the assault as ev idenced by their on - going relationship

. Afte r McDonnell sought to introduce an email from Orsak in which she provided McDonnell with a f orm that he could use to enter his plea of not guilty in this case and ano ther email in which s he offered to replace a g un that she had taken with her when they s eparate d, the S t ate re - urged its motion “ to be allowed to offer extraneous offense evi dence

. ” The S tate argu ed that b y offering evidence of Orsak ’ s and McD onnell ’ s

con tinued interactions , M cDonnell was essentially argu ing that he r testi mony about the assault was not believable and opened the door for the S t ate to re bu t that17

evidence with extraneous

- offe nse evidence and with evidence f rom the expert regardin g why abus ed women sometimes retur ned to their abusers and why t hey would r ecant allegations or seek to have cri min al charges dismissed

. McDonnell object ed under Rules of Evidence 403 and 404(b) a nd article 38.371 . The trial
court overr uled McDonnell ’ s ob j ections, but it agreed to give a l imiting instructi on both when the testimo ny was given and in the charge

. The t rial court admonished the jury on the r ecord, prior to introduction of the testimony , that it would hear evidence of other wrongful acts McDonn ell “ may hav e committed ” in order to “ contextualize the relation ship betwee n [Orsa k] and [McDonnell]. ” The t ria l court gave a verbal instruction that th e jury was not to consider the evidence of th ose wrongful acts unless i t found beyon d a reasonable doubt that McDonn ell committed them and that such e vidence could only be

co nside red for the limited purpose of co nte x tualizing the relationship, not to prove that McDonnell is a bad person and was theref ore more likely to commit the charged offense. Orsak then testified t hat McDonnell had assa ulted her “ [m ]ore than ten [ti mes]

— numero us ” times. O rsak eventually d escr ibe d two specific incidents

— one in which he pushed her, and another in which he punched her in the fac e. S he testified that she had filed a police r eport regard ing an incident that h ad oc curred in 2016. The tria l court ’ s in structions about the ext raneous offe nses were likewise18

included in the jury charge. O r sak testified that M cDonnell threate ned to send sexually

- explicit pictures o f her to the court and to curre nt or former boy f riend s beca use she wa s planning to testify aga inst him, and he threatened to “ de stroy ” her. When it sought to admit thi s evidence, the State argued that the evidence was necessary under article 38.371(b) to contextu alize the re lationship between
McD onnell and O rsak and to rebut the defensi ve theory th at Orsak was lying about the ass ault because she repeatedly continued to assoc iate with and communicate with McDonnell following the ass ault. We agree with the State. Ev idence of
Mc Donnell ’s prior assaults and threa ts against Orsak were “ releva nt facts and circumstances that would assist the trier of fact in determining whether [McDonnell] committed the offense ” because it i lluminated “the nature of the relationship betwe en [ McDonnel l and Orsak.] ” See T EX
. C O DE C RIM
. P ROC
. a rt. 38.371(b). T he ev idence of Mc Donnell ’ s prior assaults and threats falls with in the type of evidence courts have recognized as falling u nder both article 38. 3 71 and Rule 40 4 (b). See Fernandez , 597 S. W.3d at 565 ( article 38. 371 permits admission of e vidence “ that: (1) explai ns why a vic tim of domestic violence i s unwilling to cooperate with prosecution; (2) confirms the victim ’ s initial

— and later recanted

— statements to police; or (3) contextualizes the nature of t he relationship between victim and assailant ” ); Gonzalez , 541 S .W.3d at 312 (same ); see also De La Paz v. State , 279 S.W.3d 336, 343 (Tex. Crim. App. 2009) (holding that o ne well

-19

established rationale for admitting evidence of extraneous miscon duct under R ule 404 (b) is to rebut defensive t heory that negates element of offense )

. W e conclude that the trial co urt did not abuse i ts discretion in conclud ing that this evidence was adm issible p ursuant to Rule 404(b) or ar ti cle 38.371. We likew ise concl ude that the trial court did not abuse its dis cretion in ruling that this e vidence was admissible under Rule 403. M cDonn ell argues that the evidence ’ s probative value was substan tially outweighed by the danger of unfair prejudice . Considering the elements of the Rule 403 balancin g test, we disagree

. T he proba tive force of the evi dence of McD onnell ’ s other bad acts, inc luding prior assaults and threats against O rsak, was particularly relevant here where the credibility of t he w itnesses was a central issue in the case. O rsak ’ s need for the evidence was i ncreased by evidence McDonnel l admitted s howing that, despite her all egation of assault, she continued to asso ciat e with and communicate with him

. See Gigliobianco , 2 10 S.W.3d at 641

– 42 (setting out elements of Rule 403 ba lancing test). The extr aneous acts introduced into evidence did not have a tendency to confuse or distr act the jury, as the prior assaults and threats were related to the charge d offense in this case

. The e vidence was not cumulative because the repeated na ture of the a buse over time showed the complete picture of the

r elationship

. S ee Camacho , 2021 WL 283297 0, at *8 . The evidence pertained to20

McDonnell ’ s history of abuse against Orsak , her fear, and her re asons for her ongoing contact with McDon n ell despite her allegations of assaul t

. See J ames , 623 S.W.3d at 547

– 48.
P r esenting th e extraneous evidence did not take an inordinate amount of time. See Hernandez v. State , 203 S.W.3d 477, 481 (Tex. App.

— Waco 2006, pet. ref ’ d) (upholding admission of ex traneous

- off ense evidence over R ule 403 object ion when it took less time to develop e xtraneous o ffense than charged offense). Finally, the evidence of the extra neous bad acts was similar to the charged assault , both including verbal threats a nd physical contac t . The trial court gave limiting instructi ons on the record when the evidence was admitted a nd in the jury charge, and we presume the instruct ions mitigated any potential the evidence had to irrationally affect the jurors. See James , 623 S.W.3d at 549. App ellant faile d to rebut this presumption. I d. We conclude that the trial court did not ab use its discretion in admitting

e vidence of McDonn ell ’ s extraneous bad acts. We overrule McDonnell ’ s second and third issues.21 Conclusion We affirm the judgment of the trial court.

Richard Hightower Justice Panel consists of Justice s Hightower , Rivas

- Molloy, and Farris.
P ublish. T EX
. R. A PP
. P

. 47.2(b).