## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 18

- 00195

- CR

___________________________

On Appeal from County Criminal Court No. 5

Tarrant County, Texas Trial Court No. 1494767

B efore Gabriel, Bassel, and Womack, JJ. Memorandum Opinion by Justice Gabriel 

### C RYSTAL 

### L ONDON 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION Appellant Crystal London appeals from her conviction for misdemeanor assault causing bodily injury to a family member. In two issues, she argues that the
evi dence was insufficient to show that she intentionally or knowingly committed the offense and that the trial court abused its discretion by excluding evidence of the complainant’s prior criminal record. Because we find sufficient evidence to support
the cu lpable mental state s of intentional or knowing and because the trial court did not abuse its discretion by excluding the proffered evidence, we affirm the trial court’s judgment.
I. BACKGROUND London and her husband, D avid Henson , 1 were having an argumen t , which
London admitted she started. London threw H enson ’s cell phone at him from less than two feet away, hitting him in the eye. London later admitted she had thrown the phone at H enso n ’s face

. Henson pushed London away. London came back toward
Hens on and hit him in the face with her fists several times. Henson turned his back on London, not wanting to fight any more; London got about six inches from his face, “screaming and yelling,” and “bit down on [his] nose.” Henson again pushed her away and l eft the room. Henson realized he had left his car keys in the room and
he went back in. Henson thought the keys would be in London’s purse , so he picked

1 We use a fictitious name to refer t o the complainant. See Tex. R. App. P. 9.8 cmt.; Tex. App. (Fort Worth) Loc. R. 7.3

up her purse to look for them. London started hitting Henson again, and because London was blocking his exit, he “shoved her away enough to . . . get out of the
door.” After he left, Henson called some of his friends , who told him he needed to call the police. Although initially reluctant to call the police, he called the m after again unsuccessfully tr ying to get his keys , after which “everything started back up.” The entire episode last ed approximately three hours. London was charge d by information with the intentional or knowing assault of
Henson , causing bodily injury. See Tex. Penal Code Ann. § 22.01(a)(1) . The information contained an enhancement paragraph alleging that in 2008 London had been convicted of misdemeanor assault causing bodily injury. See id. § 12.43. A jury found London guilty of the charged offense; the trial court found the enhancement paragraph true 2 and sentenced her to 180 days’ confinement. London filed a motion for new trial, arguing that the evidence was insufficient to support her conviction , which was deemed denied. See Tex. R. App. P. 21.3 (h) , 21.8(c).
II. EVIDE NCE OF CHARGED CULPABLE MENTAL STATES
In her first issue on appeal , London argues that th e evidence was insufficient to support the jury’s finding that she intentionally or knowingly committed assault causing bodily injury to a family member because she t estified that she merely tossed
Henson ’s phone at him and because the fight was mutual. In our sufficiency review,

2 London pleaded true to the enhancement paragraph.4

we look at all the evidence in the light most favorable to the verdict and must defer to the jury’s implicit resolutions of weight and credi bility determinations. See Tex. Code Crim. Proc. Ann. art. 38.04; Jackson v. Virginia , 443 U.S. 307, 319 (1979); Jenkins v.
State , 493 S.W.3d 583, 599 (Tex. Crim. App. 2016) ; Montgomery v. State , 369 S.W.3d 188, 192 (Tex. Crim. App. 2012)

. W e determine w hether any necessary inferences are

reasona ble based upon the cumulative force of the evidence when viewed in a favorable light

. Murray v. State , 457 S.W.3d 446, 448 (Tex. Crim. App. 2015)

. We must presume that the jury resolved any conflicting inference s in favor of the verdict
and defer to that resolution. Id. at 448

– 49 ; see Laster v. State , 275 S.W.3d 512, 524

– 25 (Tex. Crim. App. 2009) (holding defendant’s intent may be discerned from surrounding circumstances)

. London is correct that her testimony revealed a different version of the assault
that the jury could have found was not intentional or knowing. But other evidence in the record, specifically Henson ’s testimony, showed that London at the very least knowingly threw the phone at his eye, bit h i s nose , and hit him with her fists. Pictures
of Henson taken the same day as the assault showed several visible injuries to his face , including a wound to his nose that was consistent with a bite mark

. The cumulative force of the evidence, viewed in the light most favorable to the jury’s verdict, was sufficient to support the jury’s finding of guilt. See, e.g. , Mora v. State , No. 11

- 17

- 00099

- CR, 2019 WL 1189 223, at *3 (Tex. App.

— Eastland Mar. 14, 2019, no pet. h.) (mem. op., not designated for publicati on); Mitchell v. State , 546 S.W.3d 780, 787 (Tex.5

App.

— Houston [1st Dist.] 2018, no pet.); In re D.A.K. , 536 S.W.3d 845, 848 (Tex. App.

— H ouston [1st Dist.] 2017, no pet.) ; Parker v. State , 489 S.W.3d 609, 613 (Tex. App.

— Texarkana 2016, no pet.)

. See gener ally Hart v. State , 89 S.W.3d 61, 64 (Tex. Crim. App. 2002) ( “Direct evidence of the requisite intent is not required, however.” ).
We overrule issue one.
III. EXCLUSION OF EVIDENCE In her second issue, London contends that the trial court abused its di scretion by excluding her proffered evidence of Henson ’s prior criminal record to explain why
Henson was initially reluctant to call the police. During the State’s direct examination
of Henson , he testified that he did not immediately call the police beca use he did not want to get London in trouble and he was afraid the police would not believe him
because he was physically larger than London

. During London’s cross

- examination,
Henson again testified that he believed the differences in their physical size s would cause the police to think he was the perpetrator. Outside the presence of the jury,
London asked the trial court to allow her to admit evidence of Henson ’s prior deferred adjudication community supervision to show why Henson did not want to

contac t the police : “ [H] e may have been in violation of his probation” or been arrested again. The State argued that the door had not been opened through its earlier questions about the delay; that the evidence was not relevant; and that it was “overly prejudic ial, misleading to the jury, and [was] not proper impeachment.” London then questioned Henson in an offer of proof , still outside the jury’s presence, and elicited6

his testimony that he was on deferred adjudication community supervision at the time
of the assault for “[i]mproper photos” of London’s daughter and that this status was a factor “[l]ater on” in his decision to delay calling the police. But t he “first thing” for
Henson regarding his decision was “the size comparison.” Henson also testified tha t he was intent on getting his keys from London because he was due at a community

supervision class and that if he missed, he would be in violation of his community

supervision terms. London then argued that the State had opened the door to Henson ’s cri minal history “[b]y asking about why [ Henson ] did not call the police initially.” The State responded that the door was not opened because Henson merely testified that he “wanted to avoid the situation” and that the evidence “would be incredibly prejudici al.” The trial court excluded the proffered evidence and granted London a running objection to the exclusion. We review this exclusion for an abuse of
discretion

—

whether it was so clearly wrong that the exclusion fell outs ide the zone of reasonable disag reement. See Henley v. State , 493 S.W.3d 77, 82

– 83 (Tex. Crim. App. 2016). London’s admissibility argumen t to the trial court only asserted that she was entitled to correct the false impression that Henson ’s only motivations for delaying calling the pol ice were a desire to keep London out of trouble and his fear the police7

would blame him for the attack. 3 See Tex. R. Evid. 107 (“An adverse party may also introduce any other act, declaration, conversation, writing, or recorded statement that is necessary to explain or allow the trier of fact to fully understand the part offered by the opponent.”). Although Rule 107 is a rule of admissibility, such evidence is subject to exclusion if its probative value is substantially outweighed by its prejudicial effec t. See Tex. R. Evid. 403; Walters v. State , 247 S.W.3d 204, 2 17

– 18 (Tex. Crim. App. 2007);
Fuentes v. State , 991 S.W.2d 267, 279

– 80 (Tex. Crim. App. 1999). The State expressly argued to the trial court that the evidence was unfairly prejudicial and thu s inadmissible. To be sure, t here was little probative value to the
admission of Henson ’s prior deferred adjudication community supervision to the elements of the charged offense. London admitted that the excluded testimony would have provided only an “ a lternat e reason” for Henson ’s delay, which was not an element of the offense the State was required to prove

. Cf. Fuentes , 991 S.W.2d at 280 (“While there was some suggestion in testimony offered by appellant that Tate was looking for trouble that night, this point was never clearly made and its relevance not shown.”); Whipple v. State , 281 S.W.3d 482, 500 (Tex. App.

— El Paso 2008, pet. ref’d) ( “Rule 107 does not permit the introduction of other similar, but inadmissible, evidence unless it is necessary to explain properly admitted evidence.”). And the

3 To the extent London relies on any other admissibility theory, those arguments were not preserved for our review. See Tex. R. App. P. 33.1(a)(1)(A); Tex. R. Evid. 103(a)(1)(B); Golliday v. State , 560 S.W.3d 664, 670

– 71 (Tex. Crim. App. 2018).8

excluded evidence w ould have been unfairly prejudicial , suggesting a decision on an improper basis, and accordingly was subject to exclusion notwithstanding rule 107. 4 See, e.g. , Arebalo v. State , 143 S.W.3d 402, 408

– 09 (Tex. App.

— Austin 2004, pet. ref’d). Thus, even if the door were opened by the State’s questioning, the danger of unfair prejudice would shut it. We conclude that the trial court did not abuse its discretion by excluding the evidence. 5 And if we were to conclude that the exclusion was an abuse of discretion, we would be constrained to hold that the exclusion did not affect London’s substantial rights and, thus, did not harm her. See Tex. R. App. P. 44.2(b);
Arebalo , 143 S.W.3d at 409

– 12. F or all of these reasons, we overrule issue two.
IV. CONCLUSION The evidence supported the jury’s verdict that London’s conduct was intentional or knowing. The trial court did not abuse its discretion by excluding

4 The trial court could have reasonabl y concluded that London’s need for the evidence was weak, the evidence did not serve to make the existence of a fact of consequence more or less probable, the evidence had a tendency to confuse or distract the jury from the issues they were to decide, and the evidence could have been given undue weight by a jury ill

- equipped to assess its probativ e value

. See Gonzalez v. State , 544 S.W.3d 363, 372

– 73 (Tex. Crim. App. 2018) (applying Gigliobianco v. State , 210 S.W.3d 637, 641

– 42 (Tex. Crim. App. 2006)). Even though the presentation of this evidence would not have taken an inordinate amount of time , the unfair

- prejudice factors reasonably weighed in favor of exclusion. See id. at 373.

5 We need not address London ’s appellate argu ment that the trial court erred by failing to conduct the rule 403 balancing test on the record because she did not reques t such a balancing test and because the trial court was not required to conduct the test on the record. See Hitt v. State , 53 S.W.3d 697, 706 (Tex. App.

— Austin 2001, pet. ref’d).9

evidence that was highly prejudicial eve n though proffered under the rule of optional completeness. We affirm the trial court’s judgment. See Tex. R. App. P. 43.2(a).

/s/ Lee G a briel
Lee Gabriel Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: May 23, 2019