## 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 T arrant County, Texas Trial Court No. 15579 94R
Before Birdwell, Bassel, and Womack, JJ. Memorandum Opinion by Justice Birdwell 

### B RANDON 

### I SAIAH 

### T HOMAS 

### , Appellant

V


### . T HE 

### S TA TE O F 

### T EXAS2 MEMORANDUM OPINION In three non sufficiency

- related points , Br a ndon Is aiah Thomas challenges his conviction for one count of aggravated a ssault with a deadly weapon , his c onviction for one count of assault on a fa mily member by imp eding brea th or circulation , and his concurrent sentences of fif teen a nd ten years ’ conf inement

. Tex. P enal Code Ann. §§ 22.01(a)(1), (b)(2)(B), 2 2.02(a )(2). We affirm. Background Thomas and the c omplainant li ved together with their children bu t were not married. One night, w hile the family was living in a motel room, Thomas became angry wh en the complainant was texting with a male coworke r. He came out of the bathroom, pushed her back so that she fell onto the fl oor, grabbe d a n air rifle , broke her phone wit h the air ri fle , and used the butt of the air rifle to hit her several times i n the face until the air rifle broke

. Thomas then held the complainant off the ground by the ne ck for about two minu tes. T he co mplainant ’ s ears began ringing, and her vision faded. But she di d not lose conscious ness. That night, th e compl ainant could see o ut of only one eye. After the attack, the complainant and T homas cleaned h er blood from the motel room ’ s bedroom an d bat hroom an d then went to sleep. T he next day, the complainant ’ s mother found the complainant and Thomas by searching motel parking lot s in Euless. Thomas would not let the com plainant come out of the motel room at first, but he later al lowed the complain ant to come just ou t sid e the door. Although it3 was dark, the compl ainant ’ s mother saw the “ [ h

] orrific ” injuries, but the comp lainant told her mother that three men had attac ked her in the parking lot at work. T hree days after the attack, Euless police pul l ed o ver the complainant while she was driving away from the motel. Th o m as was a passe nger in the car; because he had outstanding traffic warrants, the pol ice arrested him. One of the officers asked the compl ainant about he r injuries , so she told the office rs a bout the assa ult s . The police photographed the complai nant ’ s injuries. The co mplainant then went to a doctor , who diagnosed her with a concussion, nasal

- bone fractures, abrasions, and contusion s. A grand jury indicted Thomas for aggrav ated assault with the air ri fle and assault on a famil y member by impeding breathing or circulation , a nd a jury found him guilty

. The jury assessed his punishment at fifteen years ’ confineme nt for t he aggravate d assault an d t en years ’ confinement for the assault. Thom as ch a lle nges both convic tions on appeal. N urse ’ s T estimony
In his first point , T homas challenges a nurse ’ s expert testimony about the cause of the injuries to the complain ant ’ s eyes. N urse Mary Ann Contreras testified as an expert in domesti c violence tr auma with a partic u lar em phasis on strangulation as a component of domestic v iolence. Thomas did n ot object to Contreras ’ s qu alif ic ations, including w hether she was qualified to give a n opinion on medical causation.4 Contr eras explained that “ strangulation i s a n ex tern al pressure on someon e ’ s throat or around their neck that causes a reduced or complete b lockage of blood flow going to the brain as well as coming back down from the brain ” and can cause the blood ves sels to rupture

. Acc ording to Cont reras, visible ma rks occur in about only half of strangulation case s. Contreras testified t hat she had review ed photographs of the c ompla inant, the police report , the complainant ’ s statement, and a checklist assessing the pote ntia l for domestic violence

. Based on tw o of the police photographs of the complainant ’ s neck , Contr eras opined th at the visible marks w ere consisten t with strang ulation caused by the blood vessels ’ bursting and creating pinpoint bruises under the skin

ca lled petechiae

. Con treras a lso te stified that photo graphs of the complainant ’ s lips and the inside of her mouth showed large bruise s that appeared to be from bl unt force trauma

. The inside of her mouth showed petechia e. Contreras further te s tifi ed that a p hotograph of the lef t eye showed “ petechiae a nd large busting o f vessels ” and
agree d that these could have be en caused by a build up of pressure. When the pr osecutor ask ed Contr eras whether s he had an opinion “ as to whether the injuries to th e eyes or the redness to the eyes [we re] caused by blunt for ce
trauma o r strangulation, ” Thomas objected to “ speculation. ” The trial judge allowe d Thomas ’ s counsel to v oir dire Contreras , but on ly as to her “ op inion as to [ the ] source of in juries i n the eye. ” After his v oir dire of the witness, Thomas ’ s counsel obj ec ted again “ on speculation ” because he claimed Contreras was “ basing everything on wha t5 someone ha [d] told her without doing any t ype of ind ependent research

. ” The trial jud ge overruled th e objection and instructe d the jury to mak e an ind ependent decision

a b o u t the opinion ’ s valid ity. Contreras then t estifi ed that in her op inion the injuries to the complainant ’ s eyes were caused b y both blunt force trauma and str an gulat ion. On appeal, Tho mas ’ s compl aint is two

- fold: that C ontreras ’ s opin ion about the

cause o f the eye injuries was bey ond the scop e of her personal knowle dge of the case and that as a nurse, sh e is not qualified to giv e an op inion on medical ca usa tion. We do not address the s econd part of his argument because he did not preserve it at trial. Se e Davi s v. State , 313 S.W. 3d 317, 352

– 53 (Tex. Crim. App. 2010) ; Wil son v. S t ate , 7 S. W.3d 13 6, 145 (Tex. Crim. App. 1999)

. Eviden tiary rule 602 allow s a wi t ness to tes tify only if evidence is introduced that supports a finding that the w i tness has persona l knowledge of the matter testified about . Tex. R. Evid. 602. Bu t the rule also “ does not apply to a witness ’ s expert

t es timony ” as all owed by rule 703. Id. As the court of c riminal appeal s has explained ,

“ expert t estimony serves the purpos e of allowing ce rt ain types of relevant, helpful testimony by a witness who do e s not possess personal knowledge of the events about which he

or she is testifying. ” Osbourn v. St ate , 92 S

. W.3d 531, 535

– 36 (Tex. Crim . App. 2002) (emphasis added)

. Contreras testified extensi ve ly about her training and exper ience related to domestic viol ence and strangulation in that context. Thomas did not object to Contreras ’ s testifying as an expert o n str a ngulation in a domestic violenc e cont ext,6 and he di d n ot object when she testified th at the complain ant ’ s ne ck and mouth injuries were consistent wi th strangulation. Nor was Contr eras requi red to have personal knowledge as an e xpert witness. Accordingly, w e hold that the trial court did not abuse it s discret ion by overruling Thomas ’ s objec ti on , and we overrule Thomas ’ s fir st point

. Mistrial In his se cond point , Tho mas claims the trial court committed r eversible error by denying his motion fo r mistrial when the complainant nonresponsiv ely te s tified that at the time of the assault Tho mas had b een “ doing weekends in jail. ” When she did so, T homas ’ s counsel object ed, received a favorable ruling, and asked for and received a jury inst ruction to disr egard the statement

. Aft er the trial judge instructed the jury to disregard the statement, he aske d whether the jury under sto od his instructio n . The record shows that “ several ” jur o rs answered yes

. The trial judg e also asked if the jury could fo llow that instruc tion. Again, “ several ” jur or s answered yes. The record does not in dicate t hat any jur o r said n o t o either question. The trial j udg e then recessed the jury, instructed the pr osecutor to ask more precise que stions , and admonished t he compla inant not to “ mention th at anybody has gone to ja il ” for any reason except regarding the charges being tried. A fter discussion, Thomas ’ s couns el moved fo r a mistrial

. The trial judge denied the motion “ [b]ased o n the jury ’ s demeanor a nd respons e s. ”7 As soon as the jury came back int o the courtroom, it heard without objection that Thomas had both physically and ve rb ally abused the comp laina nt in the past. The complainant testified about abuse in gene ral a s well as about specific inc idents t hat included str angulation

. We review the trial court ’ s denial of a mistrial for an abuse of discret ion, keepin g in mind that a mi strial is a remedy for “ i mpr oper conduct that is ‘ so prejudicial that expen diture of f urt her ti me and expens e would be wa steful and futile. ’ ” Hawkins v. State , 135 S. W.3d 72, 77 (Tex. Crim. A pp. 2004) ( quoting Ladd v. State , 3 S .W.3d 547, 567 (Tex. C r i m. A pp. 1999) ). A mistrial is r equired only in

extr eme circumstances in which t he prejudice i s incurable. Id. Ev aluating 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. Ap p. 2007). Factors to consider include (1) the severity of the misconduct, (2) measures adop ted to cure the mis conduct, and (3) certainty of conviction absent the misconduct. Id. (citing Ramon v. State , 159 S.W.3 d 927, 929 (Tex. Crim. App. 2004) ). T h e co mp la inant ’ s reference to Thomas ’ s being in j ail was limited , the trial judge di d not believe the State had inten tionally elicited the testimony , and no w itness made similar references during the remaining part of the trial

. The jury did not hear any deta il s re garding why Thomas had bee n in jail , so it did not hear evidence of a

more serious extraneous offense t han t he offen se charged . And t he jury had also previ ously heard , without ob jec t i on, that when the pol ice pulled over the c o mplainant8 and Tho mas, Thom as h ad several outstanding

–– al beit minor

–– traffic warrant s. The jury fu rther he ard the trial judge sustain Thoma s ’ s objec tion, and several jur o rs stated that they understood and could follow the judge ’ s contemporaneous instruction to disregard. W h ile the j ur y was dismissed fr om the courtroom, the trial judge acknowledged , “ There ’ s a point that even trained judicial officers can ’ t put enough clothes pins on their nose t o get rid of the smell. But I ’ m confident at this point, based on my observations of the j ur or s . . . that the y understand the rules at this point. ” Fin ally, the complainant testified about the a ttack in detail , and the evidence included photog raphs taken several days after the attack t hat still showed marks on her neck and clear , ex tensive br ui sing to her eyes , face, and mouth

. T h e complainant ’ s mother s aw these injuries the day after the assault s an d testified that Thomas had tried to hi de the compl ainant from her. T h e compl ain ant also testified without objection about Thomas ’ s prior verbal a nd phy sical assaul t s on he r. Thus, we have c onfidence of a high cert ainty of convict ion regardless of the c omplainant ’ s comment. The record doe s not show that the witness ’ s reference was so extreme that a ny prejudice to Thomas was incurable

. See Gomez v. S ta te , 552 S. W.3d 422, 428

– 29 (Tex. App.

–– Fort Worth 2018, no pe t.). Thus, we ho ld that the trial court did not abuse its discretion by denying Thomas ’ s motion for mistrial, and we overrule Thomas ’ s second point

.9 Closing Argument Thomas ’ s third point com pl ai ns about the State ’ s rebutting closing a rgument. Thomas ’ s cou ns el had argued that the evidence we ighed a gainst a conclusion that Thomas had hit the complainant with the air ri fle because the police di d not find any blood on it. In re but tal, the prosecuto r argued , “ Look, here ’ s the sad thing about thi s. [She] probably had to clean the blood of f this gun

. . . ” so that the children did not see it. Thomas ’ s counsel objected that the prosecutor was arguing facts not in evid ence. In overruling the ob jection , t he trial judg e noted, “ There ’ s evidence concerning cleaning. ” Although closing argument may not include facts no t in evidence, an argument that is a reason able deduc tion from the evidence is permissible

. Se e Freeman v. State , 340 S .W. 3 d 717, 727 (Tex. C rim . App. 2011) (l is ting four proper areas of closing
arg umen t); Co leman v. S t ate , No. 02

- 17

- 00123

- CR , 2019 WL 2042047, at *10 (T ex. App.

–– Fort Worth May 9, 2019, no pet.)

. Here, the complainant had testified that the assault with the air rifle occurred while sh e and Thomas were in the bed room/living area of the motel roo m and t hat she and Thomas had cleaned both the b edroom and bathroom areas of the one
- room motel room after the assault

. The co mplainant also

tes tified that w hen Thomas put her in t he shower af ter the assault s, “ he had blood all over his h ands [and b]lood was everywhere. ” Thus, it is a reason a ble de duction from the evidence that Thomas was concerned about the bloo d on the complainant , the bloo d in the room, and the blo od on objects in the room, a nd

–– a s part of th e10 clean ing of the small space

–– the complainant helpe d clean the air rifle

. See Temple v. State , 342 S. W.3d 572, 605 (Tex. App.

–– Houston [14 th Dist.] 2010 ) , aff ’ d

, 390 S. W.3d 341 (Tex. Crim . Ap p. 2013). We overrule Tho mas ’ s third point

. Co nclusion Because we have o verr uled Thomas ’ s three point s , we affirm the trial court ’ s j udgment. /s/ Wade Birdwell Wade Birdwell Justice Do Not Publish Tex. R. App. P. 47.2(b) Delivered : August 29, 20 19