Opinion issued April 20, 2021

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-19-00796-CR

———————————

FREDDIE LEE JAMERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 371st District Court

Tarrant County, Texas

Trial Court Case No. 1597524D

MEMORANDUM OPINION

Appellant Freddie Lee Jamerson was charged with assaulting his wife Gloria 

Hyson “by intentionally, knowingly, or recklessly . . . impeding the normal breathing 

or circulation of the blood of [ ] Hyson by applying pressure to [her] throat or neck 
2

. . . with [his] hand or arm.”1 The indictment included a habitual offender notice 

alleging two prior felony convictions. At the end of the guilt-innocence phase of the 

trial, the jury found Jamerson guilty of the charged offense. Jamerson elected to have 

his punishment assessed by the trial court and pleaded “true” to the allegations in the 

habitual offender notice. After a punishment hearing, the trial court sentenced 

Jamerson to 50 years’ confinement. In a single issue on appeal, Jamerson contends 

the trial court erred by admitting evidence of a subsequent assault during the 

guilt-innocence phase of the trial.

2

We affirm.

Background

On December 15, 2018, Jamerson was staying with Hyson at a motel in Fort 

Worth, Texas. That evening, Hyson decided to separate from Jamerson due to a

history of violence in their two-year relationship. She attempted to leave the motel 

room. But as she opened the door, Jamerson leaped ahead of her, slammed the door 

shut, pressed her against an interior wall, placed his hands on her neck, and began to 

1 See TEX. PENAL CODE § 22.01(b)(2)(B); TEX. FAM. CODE §§ 71.003, 71.005. 

2 Pursuant to its docket-equalization authority, the Supreme Court of Texas 

transferred this appeal to this Court. See Misc. Docket No. 19-9091 (Tex. Oct. 1, 

2019); see also TEX. GOV’T CODE § 73.001 (authorizing transfer of cases). We 

researched relevant case law and did not locate any conflict between the precedent 

of the Court of Appeals for the Second District and that of this Court on any relevant 

issue. See TEX. R. APP. P. 41.3.
3

strangle her. He then wrestled her to the bed, where he continued to strangle her. 

Hyson struggled to breathe and became lightheaded. She believed Jamerson was 

going to kill her. 

A woman in the adjacent motel room heard the struggle and knocked on the 

door to Jamerson and Hyson’s motel room, creating an opportunity for Hyson to flee 

to her car and cal1 911.3 Emergency personnel were dispatched to the motel, but 

Jamerson left the scene before police arrived. Hyson declined an ambulance because 

she was able to breathe and felt safe with emergency personnel present.

4

Officer J. Perez, a Fort Worth Police Department patrol officer, interviewed 

Hyson at the motel. She told him that Jamerson had strangled her and that this was 

not the first violent incident between them. Even though he did not observe any 

visible injury on Hyson’s neck, Officer Perez photographed Hyson as part of his 

investigation. The lack of a visible neck injury did not indicate to him that an assault

had not occurred. He observed other signs of strangulation—Hyson had a “raspy” 

voice and gagged and coughed when she spoke. 

Jamerson was charged with family violence assault in connection with the 

December 15 motel-room assault. At trial, Hyson testified that Jamerson had 

3 The record suggests that Jamerson also may have called 911 or, as Hyson testified, 

took the phone after she placed the call and spoke with the 911 operator. 

4 After the police had gone, Jamerson returned to the motel. Hyson did not call the 

police upon his return because she felt it was an “embarrassing cycle.” 
4

threatened more than once to kill her if she left the relationship, and she described 

multiple other incidents of physical violence at Jamerson’s hands.

5 Four of these

were prior incidents of violence, occurring before the December 15 motel-room 

assault. She described an incident early in the relationship when Jamerson slapped 

her after they purchased some curtains for their home. More “extreme” violence 

occurred next. After she returned from visiting family out of town, Jamerson first 

threw her against a wall, causing the back of her head to strike and break the drywall, 

and then threw her to the ground and “started to choke [her].” Hyson lost her voice 

for at least three days and suffered a bloody lip and eye following that incident. On 

another occasion, Jamerson struck Hyson in the head. And in November 2018—the 

month before the motel-room incident—Jamerson struck Hyson in the face with a 

cell phone, causing her face to swell.

6 Hyson said she thought about leaving 

Jamerson more than once, but she stayed because he expressed remorse and she 

wanted the relationship to work. 

In addition to these prior incidents of physical violence, Hyson testified about 

a subsequent incident that occurred three days after the December 15 motel-room 

5 The State gave notice of its intent to offer evidence of these additional incidents—

and more than 15 other arrests or convictions for various offenses—during its 

case-in-chief. TEX. R. EVID. 404(b)(2).

6 Hyson’s testimony suggests that she obtained a restraining order against Jamerson 

at some point in the relationship. The record does not reveal the effective date(s) of 

any prior restraining order. 
5

assault. On December 18, Jamerson approached Hyson outside the house where she 

stayed after leaving the relationship. She noticed he was “drunk,” upset, and had a 

knife. She testified that, during an ensuing struggle, Jamerson threatened to kill her 

and tried to injure her with the knife. Again, the police were called. Jamerson used 

the knife to slash the tires on Hyson’s car before the police arrived. 

Officer M. Marquez was one of the patrol officers who responded to the 

December 18 incident, which he described as a domestic-violence call involving a 

weapon. When Officer Marquez arrived, he saw a man whom he identified in court 

as Jamerson drop an item along a retaining wall. Officer Marquez recovered the 

item—a black pocketknife. Jamerson admitted to Officer Marquez that he had cut 

the tires on Hyson’s car, though he claimed the car belonged to him. 

Lacy Hensley, a social worker, testified for the State as an expert “in the 

dynamics of domestic violence with specialized training in strangulation.”

According to Hensley, only half of people who experience strangulation have visible 

injuries. An occurrence of strangulation places domestic-violence victims in an 

especially high-risk category. She explained, “Odds for homicide increase 750 

percent for [domestic-violence] victims who have previously been strangled 

compared to victims who have never been strangled.” The most dangerous time in a 

relationship in which domestic violence occurs is when the victim leaves—“the 
6

abuser is losing power and control” and, as a result, tends to become more violent in 

order to “maintain control in that relationship and prevent the victim from leaving.”

Hensley testified that the “cycle of violence” commonly has three phases. 

First is the “tension-building” phase, which she described as a time during which the 

“victim [walks] on eggshells” because her partner is easily agitated and she is 

uncertain what will “set [her] partner off.” In the second phase, a physically or 

verbally abusive event occurs. The final phase is the “honeymoon” phase, when the 

perpetrator of the violence may promise to change and the victim may feel hopeful 

that things will improve. Hensley explained that it is common for people in this cycle 

to stay in the relationship where the violence occurred—sometimes because the 

person experiencing the violence fears that ending the relationship will provoke the 

perpetrator to commit deadly violence against her. She opined that a person 

experiencing domestic violence, on average, attempts to leave the relationship at 

least seven times before leaving it for good. 

Standard of Review 

We review the trial court’s ruling on the admission of evidence for an abuse 

of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Walker 

v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism’d). A 

trial court abuses its discretion if it acts arbitrarily, unreasonably, or without 

reference to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 
7

(Tex. Crim. App. 1990). We will uphold an evidentiary ruling unless it falls outside 

the “zone of reasonable disagreement.” Tillman, 354 S.W.3d at 435. 

Generally, the erroneous admission of evidence is non-constitutional error, 

subject to a harm analysis. Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 

2010); Robinson v. State, 236 S.W.3d 260, 269 (Tex. App.—Houston [1st Dist.]

2007, pet. ref’d). Non-constitutional error requires reversal only if it affects the 

defendant’s substantial rights. See TEX. R. APP. P. 44.2(b); Barshaw v. State, 342 

S.W.3d 91, 93–94 (Tex. Crim. App. 2011). The defendant’s substantial rights are 

affected “when the error had a substantial and injurious effect or influence in 

determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 

1997). We will not overturn a criminal conviction for non-constitutional error if we 

have fair assurance that the error did not influence the jury or had but a slight effect. 

Barshaw, 342 S.W.3d at 93.

Extraneous-Offense Evidence

In his sole issue on appeal, Jamerson contends the trial court erred by allowing 

the State to elicit testimony recounting the December 18 incident and by admitting 

the pocketknife recovered by Officer Marquez into the evidence.

7 Specifically, 

7

Jamerson frames this issue as whether the trial court abused its discretion “by 

admitting into evidence . . . a knife that was in [his] possession at the time of his 

arrest” following the December 18 incident. Reading Jamerson’s appellate brief 

liberally, however, we understand his complaint to include a broader challenge not 
8

Jamerson argues that the challenged testimony and evidence was prohibited 

extraneous-offense evidence under Texas Rule of Evidence 404(b). 

Relying on article 38.371 of the Code of Criminal Procedure, the trial court

found the testimony regarding the December 18 incident and the pocketknife were 

admissible to illustrate the nature of Jamerson and Hyson’s relationship. Article

38.371 provides that for certain family violence offenses, including the one for 

which Jamerson was convicted, evidence of the relationship between the victim and 

the accused is admissible so long as it is not evidence that is otherwise prohibited by 

the Texas Rules of Evidence:

(b) In the prosecution of an offense described by Subsection (a), subject 

to the Texas Rules of Evidence or other applicable law, each party may 

offer testimony or other evidence of all relevant facts and circumstances 

that would assist the trier of fact in determining whether the actor 

committed the offense . . . , including testimony or evidence regarding 

the nature of the relationship between the actor and the alleged victim. 

(c) This article does not permit the presentation of character evidence 

that would otherwise be inadmissible under the Texas Rules of 

Evidence or other applicable law.

just to the admissibility of the pocketknife but also to the testimony recounting the 

December 18 incident. 

To the extent Jamerson’s brief can also be read to challenge the admissibility of 

Hyson’s testimony on the physical violence that occurred before the charged 

offense, that complaint has been waived because there was no objection to that

testimony at trial. See TEX. R. APP. P. 33.1(a) (to preserve a complaint for appeal, 

appellant must object in trial court and obtain trial court’s ruling on the objection). 

Jamerson’s counsel acknowledged that prior incidents of violence would be 

admissible under article 38.371 of the Code of Criminal Procedure. TEX. CODE 

CRIM. PROC. art. 38.371.
9

TEX. CODE CRIM. PROC. art. 38.371; see Foster v. State, No. 01-17-00537-CR, 2018 

WL 1914871, at *3 (Tex. App.—Houston [1st Dist.] Apr. 24, 2018, pet. ref’d) (mem. 

op., not designated for publication) (article 38.371(c) does not permit presentation 

of character evidence that otherwise would be inadmissible under Texas Rules of 

Evidence); Gonzalez v. State, 541 S.W.3d 306, 312 (Tex. App.—Houston [14th 

Dist.] 2017, no pet.) (same). The question is thus whether the trial court’s rulings

violated Rule 404(b), as incorporated by subsection (c) of article 38.371.

Rule 404(b) generally excludes evidence of other crimes, wrongs, or acts

offered for the purpose of proving that a defendant committed the charged offense 

in conformity with his own bad character. TEX. R. EVID. 404(b)(1); Devoe v. State, 

354 S.W.3d 457, 469 (Tex. Crim. App. 2011). There are exceptions. See TEX. R.

EVID. 404(b)(2). Although evidence of other crimes, wrongs, or acts may show 

character conformity, extraneous-offense evidence that has relevance may be 

admissible for other purposes. Id.; Montgomery v. State, 810 S.W.2d 372, 387–88 

(Tex. Crim. App. 1990) (op. on reh’g). Permissible purposes listed in Rule 404(b) 

include motive, opportunity, intent, preparation, plan, knowledge, identity, absence 

of mistake, or lack of accident. TEX. R. EVID. 404(b)(2). But “this list is not 

exhaustive.” Garcia v. State, 201 S.W.3d 695, 703 (Tex. Crim. App. 2006). 

The State contends the challenged evidence of the December 18 incident was 

admissible for two non-character-conformity purposes: (1) to contextualize the 
10

nature of Jamerson and Hyson’s relationship, and (2) to rebut Jamerson’s defensive 

theory that Hyson fabricated the motel-room strangulation. As support for its 

contentions, the State relies primarily on two decisions from our sister court in Fort 

Worth, the court from which this appeal was transferred, and our sister court in 

Austin. See Williams v. State, No. 02-18-00382-CR, 2019 WL 2223214, at *2 (Tex. 

App.—Fort Worth May 23, 2019, no pet.) (mem. op., not designated for 

publication); Tran v. State, No. 03-17-00155-CR, 2018 WL 3118464, at *1 (Tex. 

App.—Austin June 26, 2018, pet. ref’d) (mem. op., not designated for publication).

In Williams, the defendant appealed his conviction for causing bodily injury 

to his mother, contending the trial court erred by allowing the State to elicit the 

mother’s testimony about the defendant having previously assaulted her. 2019 WL 

2223214, at *1. At trial, the mother expressed embarrassment over the assaults and 

stated that she would not have testified against the defendant had the State not 

subpoenaed her to do so. Id. at *2. The appellate court determined that it was “well 

within the zone of reasonable disagreement for the trial court to have found . . . that 

the disputed evidence was admissible for a non-character-conformity purpose.” Id.

at *3. Specifically, the trial court could have reasonably concluded that the evidence 

of the defendant’s past assaultive behavior toward the mother was necessary for the 

jury to understand why she did not want to testify at trial, as well as the nature of her 
11

relationship with the defendant and the defendant’s motivation for assaulting her

again. Id.

The defendant in Tran, like Jamerson here, was found guilty of assaulting his 

wife by strangulation. 2018 WL 3118464, at *1. On appeal, he argued that evidence 

of a prior arrest for family violence against his wife was inadmissible 

extraneous-offense evidence under Rule 404(b). Id. at *2. The appellate court 

disagreed, noting there were multiple permissible purposes for admitting the 

evidence of the prior arrest. Id. at *3. The evidence suggested that the assault for 

which the defendant was on trial was not an accident or mistake. Id. In addition, 

because the wife refused to comply with a subpoena instructing her to appear and 

testify, the evidence of the prior assault could suggest to the jury that she failed to 

appear because she was in fear or had been manipulated by the defendant, not 

because the defendant did not commit the assault. Id. Finally, the evidence was 

admissible to rebut the defense’s theory that the defendant had assaulted his wife in 

self-defense or mutual combat. Id.

Beyond these two cases, we recognize a significant body of case law 

recognizing the special dynamics in family violence cases and the need for this type 

of evidence. See, e.g., Nash v. State, Nos. 02-17-00236-CR, 02-17-00237-CR, 2018 

WL 4495440, at *6 (Tex. App.—Fort Worth Sept. 20, 2018, pet. ref’d) (mem. op., 

not designated for publication) (evidence of defendant’s prior violence and 
12

relationship with victim was relevant to explain why victim’strial testimony differed 

from her statements to police and nurse examiner and was admissible as more than 

mere character-conformity evidence); Espinoza v. State, No. 05-17-00547-CR, 2018 

WL 6716619, at *6 (Tex. App.—Dallas Dec. 21, 2018, no pet.) (mem. op., not 

designated for publication) (“[T]he nature of the victim’s relationship with 

[defendant] and, additionally, [defendant]’s statements that he repeatedly assaulted 

her in the days prior to the offense were relevant to explain her apparent 

unwillingness to cooperate with law enforcement and the prosecution.”); Gonzalez, 

541 S.W.3d at 312–13 (defendant’s prior conviction for assaulting same complainant

was admissible to rebut defensive theory of fabrication and given complainant’s 

reluctance to testify and recantation); McCleery v. State, No. 03-17-00154-CR, 2017 

WL 4766722, at *6 (Tex. App.—Austin Oct. 20, 2017, no pet.) (mem. op., not 

designated for publication) (photographic evidence of injuries sustained in a prior 

assault was admissible for non-character-conformity purpose of rebutting defensive 

theory of fabrication and providing context for complainant’s failure to report for 

more than one month). 

The record in this case is distinguishable from these cases in some respects. 

For instance, unlike the complainants in Williams and Tran, Hyson did not refuse to 

cooperate with law enforcement or the prosecution. At trial, she was firm in her 

desire to testify against Jamerson, and she did not recant her allegations against him.
13

But that distinction does not place the trial court’s decision to admit the challenged 

evidence for a non-character-conformity purpose outside the zone of reasonable 

disagreement. 

During opening statements, Jamerson’s counsel reminded the jury that the 

charged offense was impeding Hyson’s breath or circulation, and he predicted the 

evidence would show “there were no visible injuries, no scratching, no bruising, no

any sort of redness around [Hyson’s] neck.” This opening statement may be 

reasonably understood as calling into question whether Hyson had fabricated the 

allegation of strangulation. The defense emphasized its theory through 

cross-examination of multiple witnesses on the lack of visible injury to Hyson. 

The State rebutted the defensive theory with testimony from Officer Perez and 

Hensley that a lack of visible injury did not, in their view, disprove the occurrence 

of strangulation. It is at least within the zone of reasonable disagreement that the 

testimony recounting the December 18 assault and the pocketknife recovered by 

Officer Marquez were admissible for the same non-character-conformity purpose of 

showing that Hyson’s allegation of a strangulation three days before was less likely 

to be fabricated, particularly given Hensley’s testimony that an occurrence of 

strangulation (as Hyson alleged took place in the December 15 motel-room assault) 

increases the odds of further, potentially more deadly, violence in a relationship (as 

Hyson alleged took place in the December 18 assault involving the pocketknife). 
14

The challenged evidence thus has some logical relevance aside from character 

conformity because it rebuts to some extent the defensive claim of fabrication. See 

Bass v. State, 270 S.W.3d 557, 562–63 (Tex. Crim. App. 2008) (case law supports 

decision that defensive theory presented in opening argument may open door to 

admission of extraneous-offense evidence); see also Gonzalez, 541 S.W.3d at 312 

(extraneous-offense evidence admissible to rebut defensive theory that assault never 

happened); McCleery, 2017 WL 4766722, at *6 (photographic evidence of prior 

assault was admissible to rebut defensive theory of fabrication). In addition, the 

context supplied by the evidence of the December 18 assault may have aided the 

jury in understanding Jamerson and Hyson’s relationship as part of the cycle of 

violence explained by Hensley. 

We are not persuaded that the challenged evidence was inadmissible because 

it concerns an act subsequent to the charged offense. Neither article 38.371 nor Rule 

404(b) contains any provision limiting their respective applicability to evidence of 

prior acts. TEX. CODE CRIM. PROC. art. 38.371; TEX. R. EVID. 404(b); see, e.g., 

Santellan v. State, 939 S.W.2d 155, 168–69 (Tex. Crim. App. 1997) (holding 

extraneous conduct subsequent to charged offense was admissible under Rule 404(b) 

for non-character-conformity purpose); Fernandez v. State, 597 S.W.3d 546, 565–

66 (Tex. App.—El Paso 2020, pet. ref’d) (holding child’s testimony involving other 

assaults by defendant against mother, including assaults occurring after charged 
15

offense, was admissible for non-character-conformity purpose under article 38.371); 

Corley v. State, 987 S.W.2d 615, 620 (Tex. App.—Austin 1999, no pet.) (noting 

there is no per se rule as to when extraneous offense is too remote in time to be 

admissible).

As we have explained, it was at least within the zone of reasonable 

disagreement that the challenged testimony and evidence was relevant to 

contextualize the relationship between Jamerson and Hyson and to aid the jury in 

determining whether assault by strangulation had occurred. We therefore hold that 

the trial court did not abuse its discretion by admitting the challenged 

extraneous-offense testimony and evidence.

But even if the trial court had abused its discretion by admitting the challenged 

evidence of the December 18 incident, our review of the record as a whole does not 

indicate that the error would be reversible. Error pertaining to the admission of 

evidence is non-constitutional in nature; thus, it must be disregarded unless it 

affected substantial rights of Jamerson. TEX. R. APP. P. 44.2(b); see Motilla v. State, 

78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (“[S]ubstantial rights are not affected 

by the erroneous admission of evidence if the appellate court, after examining the 

record as a whole, has fair assurance that the error did not influence the jury, or had 

but a slight effect.”) (quotation omitted). 
16

Jamerson does not contend that the challenged evidence of the December 18 

incident influenced the jury’s verdict on guilt or innocence—the unchallenged 

testimony and evidence from that phase of the trial established the elements of 

assault family violence, by impeding breath or circulation. See TEX. PENAL CODE

§ 22.01(b)(2)(B). Rather, Jamerson asserts harm is shown by the trial court’s 

assessment of punishment. Jamerson’s sentence is within the punishment range for 

the charged offense, as increased by the enhancement to the habitual offender range 

of 25 to 99 years or life. See TEX. PENAL CODE § 12.42(d). Jamerson pleaded true to 

the allegations in the habitual offender notice. And at sentencing, the trial court was 

permitted to consider a wide scope of evidence, including evidence of other crimes, 

wrongs, or bad acts. TEX. CODE CRIM. PROC. art. 37.07, § 3(a)(1) (relevant evidence 

at sentencing includes “the prior criminal record of the defendant, his general 

reputation, his character, an opinion regarding his character, the circumstances of 

the offense for which he is being tried, and, notwithstanding Rules 404 and 405 of 

the Texas Rules of Evidence, any other evidence of an extraneous crime or bad act 

that is shown beyond a reasonable doubt by evidence to have been committed by the 

defendant”); see Payne v. Tennessee, 501 U.S. 808, 820–21 (1991) (sentencing 

authority “has always been free to consider a wide range of relevant material”).

Even without regard to the December 18 incident, the evidence of other 

crimes, wrongs, or bad acts which the trial court could consider in assessing 
17

punishment was significant. The State presented, without objection, evidence of at 

least four additional incidents of violence perpetrated by Jamerson against Hyson, 

including one prior instance involving strangulation. Considering the record as a 

whole, we have a fair assurance that the evidence of the December 18 incident had 

but a slight effect on the trial court’s assessment of punishment. See King, 953 

S.W.2d at 273 (complained-of evidence has little to no effect on appellant’s 

substantial rights when it is insignificant or pales in comparison to other, properly 

admitted evidence).

We overrule Jamerson’s sole issue on appeal.

Conclusion

We affirm the judgment of the trial court. 

Amparo Guerra

Justice

Panel consists of Justices Countiss, Rivas-Molloy, and Guerra.

Do not publish. TEX. R. APP. P. 47.2(b).