Opinion issued February 1 3 , 2020

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO S . 01 - 19 - 00151 - CR 01 - 19 - 00153 - CR

——————————— JEREMY L. JONES , Appella nt

V. TH E STATE OF TEXAS , Appell e e
On Appeal from the 174th District Court

Harris County, Texas Trial Court Ca se No. 1551898 & 1551899

MEMORANDUM OPINION A jury convicted appellant, Jeremy L. Jones, of aggravated assault of a person with whom he has or has had a dati n g relationship 1 and aggravated assault , 2

1 Trial court number 1551898, appellate court number 01

- 19

- 001 5 1

- CR. The complainant in this case is Angela Gar cia.2

a n d the trial court assessed punishment at 38 years ’ confinement and 20 years ’ confinement, respectively. In two issues, appellant contends that the trial court

erre d by : (1) admitting evidence in both cases of a telephone call appellant m ade from jail over his T exas Rule of Evidence 403 objection and (2) refusing to charge the jury on the lesser

- included offense of aggravated assault in the aggravated

assau lt

- of

- a - family

- member case

. We aff irm. BACKGROUND A ppel lant an d Angela Garcia dated for s o me time , and, even a ft er they broke up, they maintained a casual, sexual relationship

. However, w hen Angela beg an dating Damarcus Jones , she attempted to sever ties with appellant completely, and he b egan threat ening her

. In April 2017, Angela spoke wit h police about appellan t ’ s threats , but she heard nothing further from the police about the matter. In the early morning hours of May 14, 2017, appellant broke through the back door of Angela ’ s apartment and shot he r and Dama rcus while they l ay in bed. Bot h Angela and Damarcus s uf fered serious injuries, and both identified appellant as the shooter. Appellant was charged with aggravated assault of a person with

2 Trial court numbe r 1551899, appellate court number 01

- 19

- 00153

- CR. The complainant in this case is Damarcus Jones

.3

whom he has had a dating relationship for shoo ting Angel a 3 and ag gravated assault for shooting Da marcus. 4 RULE 403 O BJEC TI ON In his first issue , appellant contends that the trial court erred by permitting the State to introduce evidence of a jailhouse telephone call from appellant to a friend over appellant ’ s object ion un der Texas Rule of Evidence 403. Background At trial, Da niel Miller, wh o was a ppel lant ’ s friend and Angela ’ s brother, testified about a telephone call that he received from appellant while appellant was in jail. 5 Daniel identified the State ’ s recording of the cal l, Ex hibi t 13, as a true and correct recording of a conversat ion between appellant and him

. On the tape, t here is some discussion between Daniel and appellant about whether “ she ” will be at an upcomin g c ourt appearance, after which appellant says, “ I ’ m de finitely not f

– - king with her no more. ” Daniel says, “ You ’ ve le arned your lesson , ” an d appellant responds, “ Yeah, I definitely won ’ t do that no more. ” Before the tape was admitted, appellant ’ s counsel objected that t he tape was “ more prej udicial than
pro bative ” a nd should be excluded pursuant to Texa s Rule of Evid enc e 403 . The

3 See T EX
. P ENAL C ODE § 22.02 (a) , (b)

.
4 See T EX
. P ENAL C ODE § 22.02 (a)

. 5 The telephone call was edit ed such tha t it did not reveal to the jury that it was made from the jail.4

trial court overruled appellant ’ s objection, and admitted the tap e of the telephone call

. Standard of Review and Applicable Law We review a trial court ’ s ruling to admi t or exclude e vidence for an abuse of discre tion. Weathe rred v. State , 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). A trial court abuses its discretion when its ruling falls outsize the zone of reasonable disagreement. Id

. Under Rule 403, “[t]he court may exclude relevan t evidence if its probative

va lue is subst antially outw eighed by a danger of .

. . unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” T EX
. R. E VID
. 403. “Rule 403 favors the admission of relevant evidence and carries a presumpti on that relev ant evidence will be more probative than prejudicial.” Davis v. State , 329 S.W.3d 798, 806 (Te x. Crim. App. 2010). “The term ‘probative value’ refers to the inherent probative force of an item of evide nce

— that is, how strongly it s erves to mak e more or les s probable the existence of a fact of consequence to the litigation

— coupled with the proponent ’ s need for that item of evidence.” Id. (quoting Casey v . State , 215 S.W.3d 870, 879 (Tex. Crim. App. 2007) ) . “ ‘Unfair prejudice’ refers to a tendenc y to suggest a d ecision on an improper basis, commonly, though not necessarily, an emotional one.” Id. “It is only when there exists a clear disparity between the d egree of5

prejudice of the offered evidence and its pr obative value that Rule 403 is applicab le.” Id. (quotin g Williams v. State , 958 S.W.2d 186, 196 (Tex. Crim. App. 1997) ). In conducting a Rule 403 analysis, a trial court must balance (1) the inherent
pr obative force of the proffered item of evidence along with (2) the proponent ’ s

ne ed for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tenden cy of the evidence to confuse or distract the jury from t he main issues, (5) any tendency of the evidence to be given undue weight by a ju ry that has not been equippe d to evaluate the probative force of the evidence, and (6) the likelihood that presentatio n of the evidence will consume an inordinate amount of ti me or merely repeat evidence already admitted. Gigliob ianco v. State , 210 S.W.3d 637, 641

– 42 (Tex. Crim. App. 2006) A trial court is entitled to broad discretion in rul ing on a Rule 403 objection. State v

. Mechler , 153 S.W.3d 435, 438 (Tex. Crim. App. 2005). Analysis Appellant argu es that “ [t]he proble m with the conversation in State ’ s Ex hibit No. 13 is that it is not clear what the men are talking about ” and that “ before evidence of that n ature is admitted the actual meaning of the statements has t o be crystal clear. ” Appellant further contends tha t “ [t]he phone call in question simply6

had no probative va lue because it required the jury to specul ate as to the appellant ’ s meani ng. ” We disagree with appellant ’ s premise that , just because the telephon e call might create conflicting in ferences (i. e., it is either a confession or appellant is talki ng about some thing else e ntirely) , it lac ks probative va lue

. 6 It is within the province of the jury to resolve any ambiguity or doubt as to the meaning of
app ellant ’ s statements. See Hernandez v. State , 470 S. W. 3d 862, 869 (Tex. App.

— Fort Worth 2015, pet . ref ’ d). Fur ther, “ [w] e presume the factfinder resolved
any conflicting inferences in favor of the verdict , and we defer to that resolution. ” Braughton v. State , 569 S.W.3d 592, 608 (Tex. Crim. App. 2018). Bec ause the jury resolved any conflicting in fere nces in favor of the verdict,

we assume that they found appellant ’ s statements to be “ tantamount to a confession , ” as a ppellant asserts in his brief

. The issue, thus, is whether the admission of statements tant amount to a confession are unduly prejudicial in violation of Rule 403. H ere, the probative value of appellant ’ s statement s 7 is high because it serves to make a fact of consequence

— whether appel lant shot Angela

— more or less

6 We also note that appellant does not make a Rule 401 relevan cy argument on appeal.

7 His statements include incu lpatory comments that he had “ learned his lesson, ” “ I won ’ t do that no more , ” and he wa s “ [d]efinitely not f

--- ing with her no more. ”7

probable. See Mechler , 153 S.W. 3 d at 440. And, while appellant ’ s statement s are undo ub t ed ly prejudicial, they are no t unfai rly prejudicial because they relate directly to one of the charged offenses and do not have a great potenti al to impress the jury in an irration al way. See id

. Arguably , however, the State did not have a
gre at need to intr oduce the telephone call with appellant’s inculpatory statements in light of the two eyewitness identifications of appellant by the com plainants. See id

. at 441. But, because of the streng th o f the State ’ s ident ification evidence, it is unli kely that th e jury gave undue weight to appellant ’ s statements in the telephone call or that it was unequipped to evaluat e the probative force of the evid ence. S ee Gigliobianco , 210 S.W.3d at 641. No undue amou nt of time was needed to develop the evidence

. The teleph one conversation had been edited and the jury heard only a one minute and 41 second ex cerpt from it. Id. at 641

– 4 2. Thus , the trial court, after balancing the Rule 403 factors, could have reasonably concluded that th e probative value of appell ant ’ s statem ents in the tele phone call was not substantially outweigh ed by the countervailing factors specif ied in the r ule. See i d. We overrule issue one.8 L ESSER - INCLUDED OFFENSE In his second issue on appeal, appellant contends that “ it was reversi b le error fo r the trial cour t to re fuse to instruct the jury on the lesser offens e of aggravated assault. ” 8 Background During her testimony, Angela explained th at she and appellant had dated for
a year , but, after they brok e up, they continued to have a se xual relatio nship, which

s he agreed could be described as being “ sex buddies. ” A ppellant contends that, considering this testimony, the jury should not have been charged only on the offense of ag gravated assault involving a dating relationship; it sho uld also have be en charged on the lesser

- i nclu ded offense of aggravated assault. St andard of Review and Applicable Law When reviewing alleged charge error, we first determine whether error exists and the n, if so, ascertain whether the resulting harm is suffic ient to warr ant a reversal. Price v. State , 457 S.W.3d 437, 440 (Tex. Crim. App . 2015). We follow a
two

- step test in determining whether a trial court is required to give a requested instruction on a lesser

- included offense. Bullock v. State , 509 S.W.3d 92 1, 924 (Tex. Crim. App. 2016). The first s tep is to determine whether the reque sted instruction pertains to an offense that is a lesser

- included offense of the charged

8 This issue relates only to the app eal in which Angela is the complainant.9

offense, which is a matter of la w. Id. Under this step, an offense is a lesser

included offense if i t is within the proof necessar y to establish the offense charged. S weed v. State , 351 S.W.3d 63, 68 (Tex. Crim. App. 2011). The second step is to ask whether there is evidence in the recor d that supports giving the instruction to the jury. Id. Under this s tep, a defendant is entitled t o an instruction on a lesser

included offense when there is some evidence in the record that would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser

included offense

. Rice v. St ate , 333 S.W.3d 140, 145 (Tex. Crim. App. 2011). The evidence must establish the lesser

- included offense as a valid, rational alternative to the charge offense. Id. Analysis The parties agree that , in this case , aggrava ted assault is a lesser

- included

o f fense of aggravated assault of a person with whom appellant has or has had a dating relationship , with t he only additional element requiring the State to prove a dating relationship between appellant and Angela. T hus, we turn to the second
pro ng of the t e st for a lesser

- included offen se, i.e., whe t her there is some evidence in the record that would permit a jury to rationally find that, if the appellant is guilty, he is guilty only o f aggravated assault

. In other words, is there more than a

sc intilla of e vidence that appellant and Angela did not have a dating r elationship ? We hold that there was not.10

A “dating relationship ” is st atutorily defined as “a relationship between individuals who have or have had a continuing relationship of a roman t i c or intim a te nature. ” T EX
. F AM
. C ODE § 71. 0021 (b)

. The existence of such a relationship shall be determined based on consideration of (1) the length of the relationship, (2) the nature of the relationship, and (3) the freq uency and type of interaction b etween the p ersons involved in the relationship. Id. A casual acquaintanceship or ordinary fraterniz ation in a business or social c onte xt does not

con stitute a “dating relationship. ” I d. § 71.0021(c). Applying these factors, the court of criminal appeals h as held tha t evidence of a “dating relationship” was sufficient when the record showed that t he defendant and the victim each “occasionally .

. . spent the night with the other at the other ’ s residence” from January 2005 through February 8, 2005. Villarrea l v. State , 286 S.W.3d 321, 324 (Tex. Crim. App. 2009). Appellant contends tha t the re is evidence that he and Angela did not have a dating relationship, and he points to her testimony , in which she stated, “ Well, I wouldn ’ t cal l it a relationship. We would just han g out , have intercourse, and go on about our days

. ” Angela agreed with defense counsel ’ s characterization of her relationship with appellant as just “ sex buddies. ” Essentially, appellant argues that bec ause his relationship with Angela had devol ved from dati n g to a pu rely sexual11

relationship with no commitment, he and Angela did no t “ have or have had ” a dating relationship. We disagree

. It is u ndisputed that Angela and appellant dated for some pe riod of time. Angela ’ s fa ther, Larry Gar cia, test ified that “ [ t ]h ey were in a relationship for a few good years. ” He also said that “ [t ]he had been datin g for about five or six years, ” before Angela left appellant. Gar cia testi fied that he was awar e that his daughter , Angela, had dated appellant for f o ur to five ye a rs. Gar cia stated, “ The ir relationship, as far as I seen, they were boyfriend and girlfriend the whole time I seen them. ” Appellant told Gar cia that he loved Angela. Angela ’ s c urrent bo yfriend and the other complainant in this case, Damarcu s Jones, test i fied that he was awar e of the on

- again

- off

- again relationship between Angela and appellant. He stated, “ I had known that they had a relationship before me and he r started talking, but on c e me and her started talking, she wa sn ’ t talking to hi m. ” An gel a ’ s b rother, Daniel Mil ler, testi fied that he was awar e of the dating relationship between his sister and appellant. He testified that they offici ally became boyfriend

- girlfriend “ maybe like a week or two ” after he introduced them. Miller testif

ied, “ They ’ ve been together for like

— I want to say five years before all this stuff happ ened, or four years, somewhere around there. ” He als o noted that Angela and appellant lived together as a couple for approximately six to eight12

months. Miller testifi ed that even w hen they did not live together, they saw each other “ constantly ; every day for years. ” Angela, however, testified that she only dated appellant fo r one year , but

“ [they ] had broken up, went [their] own way; ” and after th at “ [they] were just l ike on and o ff

. ” Angela testi fied, “ We ’ d see eac h other, we ’ ll have intercourse, and just go off and do our own things. ” She testified that this strictly sexual relationship continued for “ a couple of years, ” during which they w ould have se x

“ every other w eek o r so. ” As seen from the testi mony above, even if we were to disre gard the time that Angela claimed that she and appellant were just “ sex buddies, ” th ere is evidence that Angela and appella nt were in a dating relationship for, at most , four to five
yea rs, or at leas t , one year . While dating, they had a sexual relationship, lived
to gether for six to eight m on ths, and saw each other “ constantly. ” This was not a casual acquaintanceship or ordinary fraternization , and there is no controverting eviden ce to su ggest that i t was. The fact that the dating relationship ended sometime before the shoo ting is irrelevant becau se the statute require s only tha t they “ have or have had a continuing rela tionship of a romantic or intimate nature. ” See Hill v. State , No. 0 1

- 10

- 00926

- CR, 2012 WL 983338 (Tex. App.

— Houston [1st Dist.] Mar. 22, 2012, no pet.) (mem. op.) (interpreting T EX
. F AM
. C ODE § 71.021(b) and holding that jury permitted to find that “ a dating relatio nship existed13

if it found that [ the defendant] and [the c omplainant] had a continu i ng relationship of a romantic or intimate nature in the past, regardless of whether that relationship was ongoing at the time of the assault ” ) ; see also Sanc hez v. State , 4 99 S.W.3d 438 , 44 3 (Tex. Crim. App. 2016) ( “ If the legis la ture had intended for ther e to be an explicit limit on the length of time between the dating relatio nship and the ass a ult, it would have inserted on e into the statute ” ). Because there is no evidence that appellant and Angela never had a dating relationship , the trial court did not err by refusing to charge the jury on th e lesser

included offense of aggravated assault in the case in which Angela is the complainant. We overrule issue two. In light of our disposition of this issue, we need not also decide wh ether a n ongoing, but pure ly se xual relationship is a “ continuing relationship of a romantic or intimate nature, ” as required by section 71.021(b) of the Family Code , and we decli ne to do so. CONCLUSION We affirm the trial court ’ s ju dgment.

Sherr y Radack Chief Ju stic e Panel consists of Chief Justice Radack and Justices Kelly and Goodman

. Do not publish. T EX
. R. A PP
. P. 47.2(b).