In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-18-00433-CR

___________________________

On Appeal from the 372nd District Court

Tarrant County, Texas

Trial Court No. 1557994R

Before Birdwell, Bassel, and Womack, JJ.

Memorandum Opinion by Justice Birdwell

BRANDON ISAIAH THOMAS, Appellant

V.

THE STATE OF TEXAS
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MEMORANDUM OPINION

In three nonsufficiency-related points, Brandon Isaiah Thomas challenges his 

conviction for one count of aggravated assault with a deadly weapon, his conviction 

for one count of assault on a family member by impeding breath or circulation, and 

his concurrent sentences of fifteen and ten years’ confinement. Tex. Penal Code Ann. 

§§ 22.01(a)(1), (b)(2)(B), 22.02(a)(2). We affirm.

Background

Thomas and the complainant lived together with their children but were not 

married. One night, while the family was living in a motel room, Thomas became

angry when the complainant was texting with a male coworker. He came out of the 

bathroom, pushed her back so that she fell onto the floor, grabbed an air rifle, broke 

her phone with the air rifle, and used the butt of the air rifle to hit her several times in 

the face until the air rifle broke. Thomas then held the complainant off the ground by 

the neck for about two minutes. The complainant’s ears began ringing, and her vision 

faded. But she did not lose consciousness. That night, the complainant could see out 

of only one eye.

After the attack, the complainant and Thomas cleaned her blood from the 

motel room’s bedroom and bathroom and then went to sleep. The next day, the 

complainant’s mother found the complainant and Thomas by searching motel parking 

lots in Euless. Thomas would not let the complainant come out of the motel room at 

first, but he later allowed the complainant to come just outside the door. Although it 
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was dark, the complainant’s mother saw the “[h]orrific” injuries, but the complainant 

told her mother that three men had attacked her in the parking lot at work.

Three days after the attack, Euless police pulled over the complainant while she 

was driving away from the motel. Thomas was a passenger in the car; because he had 

outstanding traffic warrants, the police arrested him. One of the officers asked the 

complainant about her injuries, so she told the officers about the assaults. The police 

photographed the complainant’s injuries. The complainant then went to a doctor, 

who diagnosed her with a concussion, nasal-bone fractures, abrasions, and 

contusions.

A grand jury indicted Thomas for aggravated assault with the air rifle and 

assault on a family member by impeding breathing or circulation, and a jury found 

him guilty. The jury assessed his punishment at fifteen years’ confinement for the 

aggravated assault and ten years’ confinement for the assault. Thomas challenges both 

convictions on appeal.

Nurse’s Testimony

In his first point, Thomas challenges a nurse’s expert testimony about the cause 

of the injuries to the complainant’s eyes.

Nurse Mary Ann Contreras testified as an expert in domestic violence trauma 

with a particular emphasis on strangulation as a component of domestic violence. 

Thomas did not object to Contreras’s qualifications, including whether she was 

qualified to give an opinion on medical causation.
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Contreras explained that “strangulation is an external pressure on someone’s 

throat or around their neck that causes a reduced or complete blockage of blood flow 

going to the brain as well as coming back down from the brain” and can cause the 

blood vessels to rupture. According to Contreras, visible marks occur in about only 

half of strangulation cases.

Contreras testified that she had reviewed photographs of the complainant, the 

police report, the complainant’s statement, and a checklist assessing the potential for

domestic violence. Based on two of the police photographs of the complainant’s 

neck, Contreras opined that the visible marks were consistent with strangulation 

caused by the blood vessels’ bursting and creating pinpoint bruises under the skin

called petechiae. Contreras also testified that photographs of the complainant’s lips 

and the inside of her mouth showed large bruises that appeared to be from blunt 

force trauma. The inside of her mouth showed petechiae. Contreras further testified 

that a photograph of the left eye showed “petechiae and large busting of vessels” and 

agreed that these could have been caused by a buildup of pressure.

When the prosecutor asked Contreras whether she had an opinion “as to 

whether the injuries to the eyes or the redness to the eyes [were] caused by blunt force

trauma or strangulation,” Thomas objected to “speculation.” The trial judge allowed 

Thomas’s counsel to voir dire Contreras, but only as to her “opinion as to [the] source 

of injuries in the eye.” After his voir dire of the witness, Thomas’s counsel objected 

again “on speculation” because he claimed Contreras was “basing everything on what 
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someone ha[d] told her without doing any type of independent research.” The trial 

judge overruled the objection and instructed the jury to make an independent decision

about the opinion’s validity. Contreras then testified that in her opinion the injuries to 

the complainant’s eyes were caused by both blunt force trauma and strangulation.

On appeal, Thomas’s complaint is two-fold: that Contreras’s opinion about the 

cause of the eye injuries was beyond the scope of her personal knowledge of the case 

and that as a nurse, she is not qualified to give an opinion on medical causation. We 

do not address the second part of his argument because he did not preserve it at trial. 

See Davis v. State, 313 S.W.3d 317, 352–53 (Tex. Crim. App. 2010); Wilson v. State, 7 

S.W.3d 136, 145 (Tex. Crim. App. 1999).

Evidentiary rule 602 allows a witness to testify only if evidence is introduced 

that supports a finding that the witness has personal knowledge of the matter testified

about. Tex. R. Evid. 602. But the rule also “does not apply to a witness’s expert 

testimony” as allowed by rule 703. Id. As the court of criminal appeals has explained,

“expert testimony serves the purpose of allowing certain types of relevant, helpful 

testimony by a witness who does not possess personal knowledge of the events about which he 

or she is testifying.” Osbourn v. State, 92 S.W.3d 531, 535–36 (Tex. Crim. App. 2002)

(emphasis added).

Contreras testified extensively about her training and experience related to 

domestic violence and strangulation in that context. Thomas did not object to 

Contreras’s testifying as an expert on strangulation in a domestic violence context, 
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and he did not object when she testified that the complainant’s neck and mouth 

injuries were consistent with strangulation. Nor was Contreras required to have 

personal knowledge as an expert witness. Accordingly, we hold that the trial court did 

not abuse its discretion by overruling Thomas’s objection, and we overrule Thomas’s 

first point.

Mistrial

In his second point, Thomas claims the trial court committed reversible error 

by denying his motion for mistrial when the complainant nonresponsively testified 

that at the time of the assault Thomas had been “doing weekends in jail.” When she 

did so, Thomas’s counsel objected, received a favorable ruling, and asked for and 

received a jury instruction to disregard the statement. After the trial judge instructed 

the jury to disregard the statement, he asked whether the jury understood his 

instruction. The record shows that “several” jurors answered yes. The trial judge also 

asked if the jury could follow that instruction. Again, “several” jurors answered yes. 

The record does not indicate that any juror said no to either question.

The trial judge then recessed the jury, instructed the prosecutor to ask more 

precise questions, and admonished the complainant not to “mention that anybody has 

gone to jail” for any reason except regarding the charges being tried. After discussion, 

Thomas’s counsel moved for a mistrial. The trial judge denied the motion “[b]ased on 

the jury’s demeanor and responses.”
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As soon as the jury came back into the courtroom, it heard without objection

that Thomas had both physically and verbally abused the complainant in the past. The 

complainant testified about abuse in general as well as about specific incidents that 

included strangulation.

We review the trial court’s denial of a mistrial for an abuse of discretion, 

keeping in mind that a mistrial is a remedy for “improper conduct that is ‘so 

prejudicial that expenditure of further time and expense would be wasteful and 

futile.’” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (quoting Ladd v. 

State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). A mistrial is required only in 

extreme circumstances in which the prejudice is incurable. Id. Evaluating whether a 

mistrial should have been granted is similar to performing a harm analysis. Archie v. 

State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007). Factors to consider include (1) the 

severity of the misconduct, (2) measures adopted to cure the misconduct, and 

(3) certainty of conviction absent the misconduct. Id. (citing Ramon v. State, 159 

S.W.3d 927, 929 (Tex. Crim. App. 2004)).

The complainant’s reference to Thomas’s being in jail was limited, the trial 

judge did not believe the State had intentionally elicited the testimony, and no witness 

made similar references during the remaining part of the trial. The jury did not hear 

any details regarding why Thomas had been in jail, so it did not hear evidence of a

more serious extraneous offense than the offense charged. And the jury had also 

previously heard, without objection, that when the police pulled over the complainant 
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and Thomas, Thomas had several outstanding––albeit minor––traffic warrants. The 

jury further heard the trial judge sustain Thomas’s objection, and several jurors stated

that they understood and could follow the judge’s contemporaneous instruction to 

disregard. While the jury was dismissed from the courtroom, the trial judge

acknowledged, “There’s a point that even trained judicial officers can’t put enough 

clothes pins on their nose to get rid of the smell. But I’m confident at this point, 

based on my observations of the jurors . . . that they understand the rules at this

point.”

Finally, the complainant testified about the attack in detail, and the evidence 

included photographs taken several days after the attack that still showed marks on 

her neck and clear, extensive bruising to her eyes, face, and mouth. The complainant’s 

mother saw these injuries the day after the assaults and testified that Thomas had tried 

to hide the complainant from her. The complainant also testified without objection 

about Thomas’s prior verbal and physical assaults on her. Thus, we have confidence 

of a high certainty of conviction regardless of the complainant’s comment.

The record does not show that the witness’s reference was so extreme that any 

prejudice to Thomas was incurable. See Gomez v. State, 552 S.W.3d 422, 428–29 (Tex. 

App.––Fort Worth 2018, no pet.). Thus, we hold that the trial court did not abuse its 

discretion by denying Thomas’s motion for mistrial, and we overrule Thomas’s 

second point.
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Closing Argument

Thomas’s third point complains about the State’s rebutting closing argument. 

Thomas’s counsel had argued that the evidence weighed against a conclusion that 

Thomas had hit the complainant with the air rifle because the police did not find any 

blood on it. In rebuttal, the prosecutor argued, “Look, here’s the sad thing about this.

[She] probably had to clean the blood off this gun . . .” so that the children did not see 

it. Thomas’s counsel objected that the prosecutor was arguing facts not in evidence.

In overruling the objection, the trial judge noted, “There’s evidence concerning 

cleaning.”

Although closing argument may not include facts not in evidence, an argument 

that is a reasonable deduction from the evidence is permissible. See Freeman v. State, 

340 S.W.3d 717, 727 (Tex. Crim. App. 2011) (listing four proper areas of closing 

argument); Coleman v. State, No. 02-17-00123-CR, 2019 WL 2042047, at *10 (Tex. 

App.––Fort Worth May 9, 2019, no pet.). Here, the complainant had testified that the 

assault with the air rifle occurred while she and Thomas were in the bedroom/living 

area of the motel room and that she and Thomas had cleaned both the bedroom and 

bathroom areas of the one-room motel room after the assault. The complainant also 

testified that when Thomas put her in the shower after the assaults, “he had blood all 

over his hands [and b]lood was everywhere.” Thus, it is a reasonable deduction from 

the evidence that Thomas was concerned about the blood on the complainant, the 

blood in the room, and the blood on objects in the room, and––as part of the
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cleaning of the small space––the complainant helped clean the air rifle. See Temple v. 

State, 342 S.W.3d 572, 605 (Tex. App.––Houston [14th Dist.] 2010), aff’d, 390 S.W.3d 

341 (Tex. Crim. App. 2013). We overrule Thomas’s third point.

Conclusion

Because we have overruled Thomas’s three points, we affirm the trial court’s 

judgment.

/s/ Wade Birdwell

Wade Birdwell

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: August 29, 2019