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

at Fort Worth

___________________________ No. 02

- 18

- 00483

- CR

___________________________

On Appeal from the 297th D istrict Court Tarrant County, Texas Trial Court No. 1550 055R
Before Kerr, Bassel, and Womack, JJ. Memorandum Opinion by Justice Womack 

### C HAD 

### M ICHAEL 

### F ERNANDEZ 

### , Appella nt

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
I. I NTRODUCTION Appell ant Chad Michael Fern andez appeals his convicti on and fifteen

- year

se ntence f or stalking

. 1 In four points, Fernandez argues that (1) the trial court abused its discretion by allo wing the State ’ s expert witness to testify about domestic violence in general and how those generalizations appli ed to th e fac ts of th is case, (2) the
State ’ s expert ’ s testimony was more prejudicial than p robat ive , ( 3) the stalking statute is facially unconstitutional, and (4) because the stalking statute is fac ially

un constitutional, this court shou ld remand this case for a new trial. 2 We affirm.
II. B ACKGROUND Fernandez and the complainant in this case, Da isy Le za, began dating in November 2015 after meeting on Match.com. The relationship was tu multuous, and
in mi d

- July 2016, Leza broke off the rel ationship. Fernandez began to leave angry and threatening voicemails on L e za’s phone. Leza eventually blocke d Fer nandez’s number and began to p eriodically stay with relatives in order to avoid cont act with
him

. At tria l, Leza testified that the couple’s relationship had a pattern wherein Fernandez would do or say something that disturbed Leza, she would break o ff the
relations hip, but Fernandez would continue to communicate with her until she agreed

1 See Tex. Pe nal Code Ann. § 42 .0 72 ( a)(1) ( B)

.
2 F ernandez orig

inally fil ed a brief with two points, but in his reply brief he brought forth two more points , which he labeled “ supplemental

. ” For ease of reading, we have la beled them points on e through four.3

to go out with him a gain. Following that pattern , in late July 2016 , Leza and Fernandez celebrated Fernandez’s birthday together in Dallas. Soon ther e after , Leza

a gain broke of

f the rel ationship

. Around 4: 00 a.m. in mid

- A ugust 2016, Fernandez entered Leza’s backyard and
knocked o n her bedroom window. In an effort to keep Fernandez from coming to
her house again , Leza agreed to unblo ck Fernandez’s phone number to allow him to

comm unicate with her. Over the next few weeks, Fernandez would follow Leza in her car, show up at her house uni nvited with gifts, and persistently call her. At this point, L eza permanently moved in with her parents to avoid him

. Leza tol d Fernandez that she wanted him to leave her alone, but he continued to call her so she again blocked his phone number . However, Fe rnandez would use other phones to contact Leza, so she obtained a new phone number in early September 2016

. A few da ys later, Leza saw Fernandez in the employee parking lot of
her work. Later that same day, Fernandez went into the reception area of Leza’s

wor k. When security guards talked with him, he said that he was there to see Leza,
but t he guards told him to leave. Accor ding to Leza, security guards began to escort her to her vehicle when she would leave work until she was given a space in a secured
lo t. On September 28, 2016, Leza went on her lunch br eak, and as she approached her parent’s neighborhood, a vehicle start ed swerving close to hers and then drove in
f ront of her , blocking her from moving. It was Fernandez, who got out of his vehicle4

and approached Leza’s vehicle . Scared, Leza roll ed d own her window slightly , and after Fernandez pleaded with her to communic ate with him, Leza gave Fernandez her
new email accou nt. From there, Fernandez sent several threatening emails, 3 so Leza
blocked his email address

. Un deterred, Fernandez began to frequently drive around the perimeter of her
work. He also confronted her outside of a yoga class she had attended

. In an attempt
to ap pease Fernandez, Leza unblocked his email. Fernandez again began to send
thr eat en ing emai ls, including threats to kill anyone who attempted to date her. On November 11, 2016, after returning from a trip, Leza stopped by her house to pick up some things. She found flowers and letters from Fernand e z in her
mailbox. While inside her house, she heard a knock on her back window. After looking outside and seeing Fernandez’s truck, she called th e police. The police issued Fernandez a criminal trespass warning an d a dvised F ernandez to no longer contact
Leza. But F ernandez again se nt numerous threatening emails, 4 and on November 15, 2016, after obtaining an arrest warr ant, police arrested F ernande z. 5

3 The Sta te in tro duced more t han 260 exhibits c hronicling Fe rnandez ’ s texts, e mai ls, and uninvited encounters with Leza , as well as interactions with police regarding Fernandez ’ s persiste n ce to communicate with her. For example, one email that Fernandez s ent to Leza state d, “ It ’ s t im e n ow so grip hold of what[ ever because] I ’ m coming now. I ’ ll be right there at y ou[r] f*****g lowest so get ready [because] I ’ m coming. ”

4 For an exa mple of the threatening nature of Fernandez ’ s emails , in one email he stated , “ I ’ m at your w ork now .

. . . YOU CA N ’ T AV OID ME AND IF YOU THINK COPS CAN OR WHATEVER I’ LL JUST SEND ANOTHER MAN OR5

At trial, the State called Lacy Hensley as a domestic

- violence expert witness. After conducting a Rule 705 hearing, 6 the trial court allowed Hensley, director of
intak e and client services at One Safe Place, 7 to testify before the jury. Hen sley

ave rred that she has extensive experi ence regarding domestic violence and stalking
behavior. According to Hensl ey, she had collected eighteen months of data covering
more than 1 , 400 clients during the years of 2017 and 2018 a t O ne Safe P lace , and 78%
of the clients had reported some form of electronic stalking via e mail, messaging, or unwanted phone calls. Hensley also said that the overarch ing umbrella of “domestic
violence” includes emotional abuse or abuse thro ugh communic ation alone.

AN [] OTHER PERSON TO GET YOU TO REA[L]IZE [ BECAUSE ] I AM FOR [] EVER

. ”

5 The State introduced video from an officer’s body cam era showing Fernandez fleein g from poli c e wh en t hey w ent to his house to arrest him. Moments later, t he police were able to subdue Fernandez without a struggle

.

6 T exas Rule of Evidence 705(c) governs the re liability of expert testimony. Te x. R. Evid. 705(c). The rule states t hat “[a]n exp e r t ’ s opinion i s inadmissible if the underlying facts or data d o not provide a sufficient basis for the opinion.” Id

. The pro p onent of the expert must establish some fou ndation for the reliability of the
ex pert ’ s opinion , and this is done th rou gh a h eari n g before the t rial court

. Vela v. State , 209 S.W.3d 128, 136 (Tex. Crim. App. 2006)

.

7 On its website, One Safe Place describe s itself as a 501 ( C ) ( 3 ) organizat ion that serves as “a comprehensive crime pre ven tion agency devoted to preventing c rim e and viol e n ce in Tarrant County’s neighborhoods, schools[,] and homes.” O ne S afe P lace , https://www.onesafeplace.org/ (last visited March 2 , 2020 )

. Hensley testified t hat she works for a division of One Safe Place kn own as the Family Justice Center, w hic h she desc r i bed as a part nership of about twenty agencies that “provide one location for people experiencing intimate partner and/or fami l y violence.”6

Hensley went on to explain the “Power and Control w heel, ” an educational tool used by domestic

- abuse co unselors to help explain to victims the c ycle of
domestic abuse. As she explained the Power and Contro l w heel, the State introduced a visual aid that Hensley had brought with her that she described as “a visual representation [designed] to hel p explain the types of behaviors that hap pen in an abusive relationship.” Even though the visual aid h as the words “ physical ” and

“ sexual violence ” prominently displayed on its outer circle, Hensley said that domestic violence is “not just phy sical and sexual violence like we typical ly think of, there are many other types of abuse that also occur in those rel ationship s, and the top eight are
listed inside of the wheel.” Specifically, Hensley pointed out the top eight that were
listed on the vi sual aid: coercion and threats; intimidation; emotional abuse; isolation;
min imizing, denying, and blaming; using children; economic abuse; and male privil ege. After expressing these eight categ ories, Hensley again emphasized how domestic
ab use “doesn’t have to be physical or sexual abuse.” Hensley th en testif

ied that another tool used by domestic

- abuse counselors is the “cyc le of violence” and that there are three distinct phases o f domestic a buse: tension building, an abusiv e incident, and a honeymoon phase. Like she did when
descri bing the Power and Control w heel, Hensley repeatedly stated that an “abusive
incident” does not have to be physical and includes incid ents of verbal and emotional
abuse. She also said that people can be in fear or put in fear for their life o r live lihood through words alone.7

Hensley testified that she had read some of the e mails and texts that Fernandez
had sent to Leza, although she had not met with eithe r of th em personally. Hensley opined that she could see multiple “cycl e[s] of violence throughout the text messages
and e

- mails” and that these communications could have definitely place d Leza in fear , as general victims of stalking would be

. Hensley said that common terms used by
dom estic abusers like “I’ll show you” and “I’ll never give up” were found frequently
in Fernandez’s communications to Leza and that the communi cations would escalate in tone and frequency if Leza did not communicate back. Hen sley also said that she
had reviewed emails and messages where in Fernandez had explained to Leza how he
knew her routine schedule 8 and that this would deliver the message to an y domestic

a buse victi m that the abuser was in control of when and where he might show up

. Hensley expla ined t hat i t is common in domestic

- abuse scenarios for the victim
to leave the relationship but to also leave open lines of communication with the
abus er and that this communicati on did not lessen the fear for the victim. She also
said th at i t is n ot un common for a victim to meet with an abuser after leaving in hopes of de escalating stalking behavior or to re

- open lines of communication whe n an abuser begins to show u p at locations uninvited

. And Hensley stated that when a
vi ctim i s bei ng repeatedly exposed to stalking behavior, they often live in a constant

8 For example, in one email, Fernandez wrote Le za, “ S o [ you] pick up you [r] mail around 3:3 0ish and then you either stay ther e to do yoga or you go to you [r] boyfriend ’ s and parent [ ’ ] s house. It ’ s always one of those and you skip l unch breaks.

. . . Am I getting all th is right? How do I know all this while I ’ m working? That ’ s a secret my frie nd that [you will] never know and it ’ s best to be untold. Lol. ”8

“what’s going to happen next” state of mind. Hensley def ined stalking behavior a s the totality of the circumstances and not just the individual isolated inci dents. Ultimately, a jur y found F ernandez guilty of third

- degree felony stalking but
fo und the State’s deadly

- weapon ( a vehicle) all egation not tr ue. After F ernandez pleaded true to the State’s repeat

- offender notice, the trial cour t sent enc ed F ernandez to fifteen years’ confinem ent. This appeal followed.
III. D ISCUSSION A. The Admissibility of Hensley ’ s Testimony In his first point, Fernandez arg ues that the trial court abused its disc retion by allowing Hensley to testify a bout d ome stic violence “because it did not assist the jury in deciding an ultimate issu e in this case, went beyond the scope of admissible expert testimony, and supplanted the j ury’s decision.” We disagr ee. 1. Standard of Review
We review t he trial co urt’s determination as to the admissibility of expert

tes timony for an abuse of d iscretion. Rhomer v. State , 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). Expert testim ony is admissible when scientific, technica l, or other specialized knowledge wi ll ass ist the factfinder in understanding the evidence or in
deter mining a fact issue. Te x. R. Evid. 702; Cohn v. State , 804 S.W.2d 572, 575 (Tex. App.

— Houston [14th Dist.] 199 1), aff ’ d , 849 S.W.2d 817 (1993). Evidence admissible under Rule 702 may inc lu de tes tim ony that compares general or classical behavioral
charact eristics of a certain ty pe of victim with the specific victim’s behavior patterns.9

See Duckett v. State , 797 S .W.2d 906, 917 (Tex. Crim. App. 1990) (hold ing testimony of expert on whether t he re act ion of complaining child was similar to the reaction of

mo st victims of child abus e was helpful to the jury in determining if an assault occurred); 9 Fielder v. State , 75 6 S.W.2d 309, 321 (Tex. Crim. App. 1988) (h olding that expert testimony aided f

actfi nde r when expert explained inconsistency in appellant’s
behav ior consistent with that of typical battered women). Because the average juror will not typically be familiar w ith the effect of
domestic violence on vic tims and the dynamics of the relati on ship be tween abuser and victim, expert testimony has generally bee n held to be admissible to explain recantations, delays in reporting, lies to the police, and why a complainant would continue a relationship with an abu ser after an alleged assault. See Sa lina s v . State , 426 S.W.3d 318, 323 (Tex. App.

— Houston [14th Dist. ] 2014) (op. on reh ’ g), rev ’ d on unrelated grounds

, 464 S.W.3d 363 (Tex. Crim. App. 2015); Dixon v. State , 244 S.W.3d 472, 480 (Tex. App.

— Houston [14th D ist.] 2007, pet. ref ’ d); Scugoza v. S tate , 9 49 S.W.2d 360, 363 (Tex. App.

— San Antonio 1997, no pet.). And the cycle of
violence and the Power and Control w heel are generally accepted principles that experts on do mestic violence use to expla in the general relationship between an
ab user and v

ict im. See Young v. State , No. 09

- 17

- 00374

- CR, 2019 WL 1647679, at *2

9 The court of criminal appeals has disapproved of Duckett , b u t onl y to the extent th at it could be read “to hold that even expert testimon y t hat is relevant as subst antive evide nce may yet b e inadmissi ble unless i t serves some rehabilitative function.” Cohn , 849 S.W.2d at 819

.10

(Tex. App.

— Beaumont Apr. 17, 2019, no pet.) (mem. op., not designated for publication) (

holding cycle of v

iolence admissible to explain t ext messages in which the defendant apologized f or his violent actions and the complainant expressed forgiveness an d a desire to maintain their relationship and drop criminal charges);
Nwaiwu v. State , No. 02

- 17

- 00053

- CR, 201 8 WL 3763899, at *3 (Tex. App.

— Fort Worth Aug. 9, 2018, pet. ref’d) (mem. op. , not designated for publication) ( holding expert testimony on the c y cle of violen ce relevant to explain why victim would change her story and testify for the defendant ); s ee Run els v. State , No. 03

- 18

- 00036

- CR,
2018 WL 6381537, at *7 (Tex. App.

— Austin De c. 6, 201 8 pet. ref’d) (mem. op., not designated for publication) ( ho l ding trial court did not abuse its discretion by admitting expert testimony about the Power and Control w heel when vi ctim continued to communicate with the defendant after offense) ; Mend oz a v. S tate , No. 08

- 13

- 00293

- CR, 2015 WL 5999596, at *2, *4

– 5 (Tex. A pp.

— El Paso Oct. 14, 2015, pet. ref’d) (not designated for publication) ( holding expert testimony about the P ower and
Control w heel relevant to assist the jury in understanding domestic

- vi ol ence victim’s
actions and statem ents)

. A trial court’s admissio n o f expert testimony will rarely be disturbed on appeal ; “[b]ecause the possible spectrum of education, skill, and training is so wide, a trial court has great discretion in determining wh et her a w itness possesses sufficient qualifications to assist the ju r y as an expert on a specific topic in a particular case.” Rodgers v. State , 205 S.W.3d 525, 527

– 28 (Tex. Crim. App. 2006). But expert testimony11

that decides an ultimate fa ct for the jury , suc h as a direct opinion on the truthfulness of a witness, crosses t he line and is not admissible under Rule 702. Schutz v. State , 957 S.W.2d 52, 59 (Tex. Crim. App. 1997).
2. Rule 702 and Expert Testimony The admission of expert testimon y is governed b y Rul e 70 2 of the Texas Rules of Evidence, which states that a witnes s who is “qualified as an expert by knowledge, skill, experience, training or education may testify in the for m of an opini on or otherwise if the expert’s scientific, techn ical, or other sp eci aliz ed knowledge will help
the trier of fact to understand the e v idence or to determine a fact in issue.” Tex. R.
Evid

. 702. Thus, there are three requirements for the admis sion of expert testimony: (1) the witness qualifies as an expe rt by reason of h er know ledge, skill, experience, training, or education; (2) t he su bject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimo ny will assist the factfinder in deciding the case. Rhomer , 5 69 S.W.3d at 66 9. T hese are commonly referred to as (1) qualification, (2) reli abil ity, and (3) relevance. Id

. 3. The Relevan cy of Hensley’s Testimony Here, Fernandez challenges only the rel evancy of Hensle y’s testimony , albeit in three distinct ways. F irs t, F ernandez argues that Hensley’s testimony about the cycle
of violence “was n ot sufficiently tied to the facts of this case to constitute relevant expert testimony.” Fernan dez’s first argument under this point allege s that because

t h e c ycle of violence has three phases, one of which is the “abusive incident,” and12

because Hensley d id not testify to an abusive incident, the facts of this case are not
sufficien tly tied to the c ycle of violence theory. Fern andez’s argument is pred icated on his notion that an “abusive incident” must be phy sical in nature, and because there was no phys i cal assault in this case, Hensley should not have been able to te stify about
the c ycle of violence theory. But Fernandez ’s myop ic view of an a busiv e in cident is not supported by the record. Indeed, Hensley re peatedly said that abuse does not
have to be p hysical and that roughly 78% of the clients at One Safe Place ha d reported non

- phys ical abuse such as threatening or harassing phone calls or

messa ges
— the types of abusive incidents that Hensley clearly testifi ed that she identified multiple times in Fern a ndez’s communications to Leza. Fernandez does not cite to any a uthority that an “a busive incident” must be physical , and his
de finition is n o t sup port ed by the record. We overrule this portion of Fernandez’s
f irst point. The second argument that Fernan d ez makes under this point is that the visual
aid that F ernandez used when descri bing the Power and Control w heel states that “regular use of o t her abusive behaviors by the batterer, when reinforced by one or more acts of physical violence, make up a large r system of abuse.” Thus, Fern andez contends, the Power and Control w heel requires physica l violence, and b e c ause there is no evidence of physical violence from Fernandez to ward Leza in the record, Hensley failed to tie the Power and Control w heel theory t o the theory of this case.13

B ut Hensley direct ly testified to the language found on the P ower and Control

w h eel visual aid and acknowledged that the aid states on the “out er circle” physical
and sexual abuse , which are types of physical violence. Hensley explaine d multiple
times , however, that “abuse” in general is more far

- reaching than physical violence,
and she t est

i f ied that within the inner circle of the Power and Control w heel visual aid

w ere eight different, nonphysical types of abuse. In short, t here is n o support in the record, nor ha s Fernandez pointed to any a uthority to support the argument, that the
Pow er a n d Co ntrol w

heel theory requires a physical event. We overrule this portion of Fernandez’s first point. Third and finally, Fernandez argu es that H e nsley’s testimony went beyond comparing Leza’s behav iors to general behaviors of domestic abuse vi ctims

. Specifically, Fernandez argues that “Hensley’s testimony th at Fernandez’s messages would make Leza fear for her life, feel hopeless that he would nev e r stop, and feel like
she did not have a choice went beyond the scope of admissible exper t te s timony” and that Hensley’s testimony “constituted a direct opinion on L eza’s truthfulness.” 10 This
court has reviewed the record , and we disagree with F ernandez t hat Hensley’s

10 Th e State argues that Fernandez has failed to preserve this third sub

- argument o f h is first point for our review , conte nding that Fe rnandez never made this specif ic obje ct ion du ring the Rul e 705 hearing or later at trial when he requested a running objection

. But as can be read in the record of the Rule 705 h earing, F er n andez did object that Hensley woul d be “ testify[i ng] as to hearing stories from . . . th e victim, ” and he o bje cted that H e nsley would be “ curtailing her testimony to what she h as heard from this victim. ” Given these objections, and in the in ter est of justice, we h ave addressed th is sub

- argume nt.14

testimony was specific to Leza and that Hensley gave an opin ion regarding Leza’s truthfulness. Indeed, the prosecutor who questioned Hen sley went to great lengths to keep Hensley’s testimony as general as possible , and Hensley’s te stimony ne v er wavered from a compar ison of Leza’s behaviors to behaviors that Hen sley sa i d she had repeatedly seen in domestic

- violence or stalking scenarios in g eneral. We overrule Fernandez’s first point in its entirety

. B. The Probative Versus Prejud icial Ef fe c t of Hensley ’ s Testimony In his second point, Fernandez argues that the trial c ourt erred by allowing Hensley’s testimony because the prejudicial effect of the evidence greatly outweighed any probative val ue, and it was therefore inadmissible under T exa s Rules of Evidence
Rule 403. Tex. R. Evid. 403. We dis agr e e. 1. Stan dard of Review
We review trial c ourt rulings on the admissibility of evidence for abuse of
discretion. Carrasco v. State , 154 S.W.3d 127, 129 (Tex. Crim. App. 200 5). A tria l court
ab u ses its discretion when its ruling is arbitrary or unrea son a ble. State v. Mechler , 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). A trial court does not abuse its discretion if its decision is within “the zone of reasonable disagreement.” Bi gon v. State , 2 52 S.W.3d 360, 367 (Tex. Crim. App. 2008).
2. Rule 403
I n a n alyzing a R ule 403 objection, the trial court must engage in a balancing
process. Perez v. State , 562 S.W.3d 676, 689 (Tex. App.

— Fort Worth 2018, pet. ref ’ d).15

When undertaking this an al ysis, on one end of the scales the court must weigh (1) the
inher ent probative f

orce of the evidence along with (2) the State’s n eed for the
evidence. Gigliobianco v. State , 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). On the other end, the court weighs ( 3) any t e ndency of the evidence to suggest a decision on an impro per basis, (4) any tendency of the evidence to confuse or distra ct the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not bee n equip pe d to eva l uate the probative force of the evidence, and (6) the li kel i hood that p resentation of the evidence will consume an inord inate amount of time or merely repeat evidence already admitted. Id . at 641

– 42. Rule 403 carries a presumption that relevan t evidence will generally be more probative than problematic. Well

s v . State , 558 S.W.3d 661, 669 (Tex. App.

— Fort Worth 2017, pet.
ref ’ d). Thus, the balance is always slanted toward admission of relevant evidence. In De La Paz v. State , 279 S.W.3 d 336, 343 & n.17 (Tex. Crim. App. 2009)

. It w as Fernandez’s burden to ov erc o me this pre sumption by demonstrating that the probative value of the evidence was substantially ou tweighed by the danger of unfair prejudice or other factors. Wells , 558 S.W.3d at 669.
3. Balanc i ng the Factors in This Case Here, much like in his first po i nt, Fe rnand ez places the main focus of his objection under Rule 403 on the fact that there was no evidence presented at trial
demonstra ting that he had physically abused Leza and on his contentio n that Hensley16

directly commented upon Leza’s veracity. 11 As discussed above, there is no foundation for Fernandez’s contention that testimony regarding the cycle of violence

or t he Power and Control w heel require a physic al component. And as di scussed
ab o ve, this court finds nothing in the rec ord to supp ort Fernandez’s contention that Hensley commented on the veracity of Leza’s testimony. In his brief, Fernandez does not analyze nor attempt to demonstrate how the typical factors considered in a Rule
403 b alancing analysis support his contentio n. We con clud e that the factors weigh in
favor of the trial court’s decision.
As to the first factor

— the inherent pro b ative force of the ev idence

— Hensley testified regarding domest ic violence in general an d typical b e haviors of victims of domestic violence, inc luding the typical behavior of victims of stalking. This type of testimony has repeatedly been held to have inherent probative force in domestic

violence cases , and Fernandez has pointed to no eviden ce in the r e cord to show how
the trial court in his c ase should have concluded otherwise. Scugoza , 949 S.W.2d at

11 Although he does not anal yz e the case, Ferna ndez does cite Gonzale z v. State
a s an examp le of a case in which the court d etermined that testimony similar to Hensley ’ s was not admissib le. No. 03

- 07

- 003 23

- CR, 2008 WL 2736889, at *5 (Tex. App

. — Aus tin July 10, 2008, pet. ref’d) (mem. op., not designate d for publicat ion). B ut Fernandez ’ s reliance on Gonz alez is mi s placed. There, the victim did not display the “typical” behavior of an abuse d s pouse. Id

. Testimony about the cycle of violence, therefore, did not assist the jury in understanding the vict im’s actions o r rebut a defensive theory. Id

. Furth er, the te s timony unduly pr ejud iced the defendant by suggesting to the jury that he had abu sed the victim in the past. Id

. Here, evidence of Fernandez ’s past abuse was admitted into evidence, and the t heories relied upon by Hensley exp lained why Leza may have rema i ned in communicati on w ith Fernandez even though she feared him and did not wa nt to have any contact with him.17

363 (holding that expert’s testimony comparing reaction of complaining child with
gene ral behavioral characteristics of abused children helped jury in de t ermining whether assault occurred); Fie l der , 7 56 S .W.2d at 321 (holding same as to female
victims of domestic violence ). This factor favors the trial c ourt’s admitting Hensley’s testimony. As to the second factor, the State had a relatively st rong need f o r this evi dence
beca use Fernandez’s mai n de fense was that because Leza had repeatedly opened lines of communication with Fernandez, she could not possi bl y have been placed in fear by
his actions. Hen s ley’s testimony a bout how victims of both d omestic vio l ence and stalking often open lines of c ommu nication or agree to meet with their abusers was a
direct rebuttal to Fernandez’s theory that Leza’s continued, purposeful interactions
with Fe rnan dez showed th at she had not been placed in fear by his actions. T his factor weighs heavily in favor of t he t rial court’s admitting Hensley’s testimony. As to the third factor, the evidence in question had limited potential to cause unfair prejudice. Unf

air prejud ic e may be created by the tendency of the ev idence to
p r ove some adverse fact not properly in i ssue or to unfairly excite emotions against
the defendant. Montgomery v. State , 810 S.W.2d 372, 392 (Tex. Crim. App. 1990). But here, Hensley’s testimony did not tend to prove s om e ad verse fact ; rather, her
testimo n y was about the behaviors of domestic

- v iole nce and stalking victims in general and was predicated on theori es that have consistently been allowed into18

evidence in cases like this one. Scugoza , 949 S.W.2d at 363 ; Field er , 75 6 S .W.2d at 321

. Th is factor f

a vors the trial court’s admit ting Hensle y’s testimony. The remaining factors add no weight to the scales. As to the fourth and fifth factors, we do not per ceive any way in which the evidence would have confused or
dist ra cted the jury , and the e vidence was not of such scientific or t echnical cha ract er that it might have been given undue weight by an untrained jury. See Gigliobianco , 210 S.W.3d at 641. Fina lly, as to the sixth factor, the trial court could have reasona bl y

co ncluded t hat the pre sentation o f Hensley’s testimony would not consume an i nordinate amount of time. See id . at 641

– 42. In fact, Hensley’s testimony comprised
less than one

- eight h of the testimony in the State’s case in chief (41 record pages out

o f 5 93 t otal page s for the State’s cas e ). We do not believe th at this amount o f ti me was excessive. See Warren v. State , No. 02

- 19

- 00023

- CR, 2019 WL 4124377, at *5 (Tex. App.

— Fort Worth Aug. 2 9, 2019, no pet.) (mem. op., not designated for publication) (h o ld ing that expert’s testi mony on dom e stic violence in general did not

consume an inordinate amount of time given testimony constituted only 21 record pages out of 170 total pages for the State’s case and thus neither weighed in favor n or against admission of the testimony under Ru le 403). T h ese remaining fa ctors wei gh neutrally.
T hree factors weigh in favor o f admission, one of them heavily so. The remaining factors weigh neutrally. We therefore conclude that the trial court did not19

exceed the “consider a bl e freedom” it is afford ed in exerc i sing its discret ion under
Rule 403. See Mon tgomery , 810 S.W.2d at 37 8. We overrule Fernandez’s second point.
C. Fernandez ’ s Claims that the Stalking Statute is U nconstitutional In his third and fourth points, which F er nandez brings up for t he first ti m e in
his reply br ief, he argues that beca use this court has held that an element of the
harassment statute is unconstitution ally vague and because the stalking statute incorporates by reference the harassment statute , t h en the jury’s verdict wa s not found e d on a constituti onally v alid statute , an d th is case demands a remand. The State argues that Fernandez has failed to preserve these points for our review. We agree with the State.
Aft er Ferna n de z filed his opening brief, this c ourt, in Ex p arte Barton , d eclared
the ele ctro nic

- communication element of t he harassment statute facially
unconstitutional. 586 S.W.3d 573, 585 (Tex. App.

— Fort Worth 2019, pet. granted) (op. on reh’g). Based upo n Bart o n and the reference to the harassment stat ute in the

st alki n g st atute, Fernan dez raises a facial challenge to the constit utionality of the stalking statute for the first time on direct appeal. Generally, a facial challenge to the constitutionality of a st a tute may not be
raised for the first time on app eal. K aren e v v. State , 281 S .W.3 d 428, 434 (Tex. Crim. App. 2009). Failure to raise a facial challenge in the trial court may forfeit it on
appe al. Id

. One exception to the general rule is when the st atu t e under which an appellant has been convic ted is adjudg ed f a cial ly unconstitu tion al during the pendency20

of his appeal

— then he may raise a facial challenge first on appeal. Smith v. State , 463 S.W.3d 890, 895

– 97 (Tex. Crim. App. 2015). Because an u nconst i tutional statute is void from inception, a chall enge to a c o nviction under th at s tatute is neither waived nor forfeited when presented post

- conviction. Id . at 895; Ex parte Beck , 541 S.W.3d
846 , 855 (Tex. Crim. App. 2017). Here, Fernandez did not c halle n ge the facial constitutionality of the sta lking

statute in t he trial court. His claim, therefore, is forfeited unless binding authority has adjudged the stalking statute facially unconstitutiona l and the Smith exception to preservation applies. Smith , 4 6 3 S.W.3d at 896; Beck , 541 S.W.3d at 855.
N o cou rt has d ecl a red the stalking stat ute under which Fernan dez has been convicted facially unconstitutional. See Tex. Penal Code Ann. § 42.072. Rather, multiple courts, including this c ourt, have upheld the co n stitutionality of prior
versions of the sta lking statute
. S ee Ploeger v. Sta te , 189 S.W.3d 799, 812

– 15 (Tex. App.

— Houston [1st Dist.] 2006, no pet.); State v. Seibert , 156 S.W.3d 32, 37 (Tex. App.

— Dallas 2004, no pet.); Lewis v. State , 88 S.W.3d 383, 39 2 (Tex. App.

— Fort Worth 2002, pet. ref’d); Si sk v. State , 74 S .W.3d 893, 902 (T ex. App.

— Fort Worth 2002, no pet.); Battles v. State , 45 S.W.3d 694, 703 (Tex. App.

— Tyler 2001, no pet.);
Clements v. Sta te , 19 S.W.3d 442, 451 (Tex. App.

— Houston [1st Dist.] 20 0 0 , no pet.)

. Thus, the Smith exception does not e nable Fe rna n dez to raise a fi rst

- time facial challenge on direct appeal bas ed upon binding authority directly striking down the stalking statute. But Fernandez ’ s chall enge may still be brought for the first time on21

appeal under the Smith exception unless the statute that he was convi cted under is
material ly different than the portion of the harassment statu te that this court has held
unconstitutional. Beck , 541 S.W.3d at 85 8

. Fernandez claims that the e lectronic

- communications section of the
harassment s tatute is “ s ufficiently s imil ar” to th e stal king statute and thus it triggers
the Smith exception. We disagree.
A side

- by

- side comparison between the stalking statute that Fernandez w a s convicted of and the harassment statute that this court held unconst itution ally
overbroa d in Barton shows that the statutes are materially different: Elements of Stalking Elements of Harassment
1. A person 1. A person
2. on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at a not her p erson 2. (S tatute has no equivalent .)

3. k nowingly engages in conduct that 3. with i ntent to harass, annoy, alarm, abu se, torment, or embarrass another 4. constitutes an offense under Section 42.07, or that the actor knows or reasonably should know the o ther pe rson will reg ard as threatening: (A) bodily injury or death for the other person; (B) bodily injury or death for a member of the other person ’ s family or household or for a n indi v idual with whom the other person has a dating relationship; or (C) tha t an of

fens e will be 4. sends repeated electronic

communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embar r ass, or offend another

.22

committed against the other person ’ s property; 5. causes the other person, a member of the othe r pe rso n ’ s f amily or household, or an individual with whom the other person has a dating relationship to be placed in fear of bodily injury or death or in fear that an offense will be
c o mmitted against the other person ’ s property, or to feel harassed, anno yed, al arme d , abu sed, tormented, embarrassed, or offended; 5. ( Statute has no relationship requirement .)

6. would c ause a reasonable person to: (A) fear bodily injury or death for himself o r herself; (B) fear bodily injury or death for a member of the person ’ s fa mil y or house hold or for an individual with whom the person has a dating relationship; (C) fear that an offe nse will be committed against the person ’ s property; or (D) feel harassed , annoyed, alarmed, abused, tormented, embarrassed, or offended. 6. ( Statu te h as no r e asona ble pers on requirement .)

Tex. Penal Code Ann. §§ 42.07(a)(7); 42.072. As the State points out, and as can be seen by the comparison of the two
statutes, “[t]he stalk

i ng statute is materially different than the electronic

communications sect

ion of t he ha rassment s tatute.” Thus, the Smith exception does not apply to this case.23

Relying on the Texas Court of Criminal Appeals’ decision in Beck , Ferna ndez

a lso seems to argue that because the stalking statute incorporates the electro nic

comm unicati ons s ection of the harassment statute that this court held
unconstitutional in Barton , and even if this court compares the stalking statute with the
harassme nt sta t ute, “the stalking statute is sufficiently similar to the one in Barton for

t he Smith except

ion t o apply. ” 541 S.W.3d at 858

. Fernandez’s reliance on Beck , however, is misplaced. In B eck , the court did precisely what this court h as already
done in this case. See id

. That is, the Beck court engaged in a sid e

- by

- side comparison
of the i mproper

- rel a tionship statute at issue in that case with the online

- solicitation
statute that had been declared unconstitutional. Id

. The Beck co u rt concluded that even though the improper

- relationship statute referred to t he online

- solicitation
statute, the sta tute s were material ly different because the improper

- relationship statute
“contains the additional elements t hat the actor be a school empl o yee and that the recipient of the sexually explicit communications be a student. ” Id

. T hat same reasoning a pplies to t h e st atutes at issue in this case. Although the stalking statute refers to the harassment statute, it contains the
add itional elements that th e victim has a familial or dating relationship with the
offender and that the off

ender engaged in con duct placin g the victim in fear of bodily injury or death. Thus, like in Beck , the stalking statute applies in a much narrower

c ontext than the harassment statute. See id

. (“The improper

- relationship statute thus applies in a much nar rower context than d id the form e r on line

- solicitation provision,24

which applied broadly to any sexually explicit communications between an adult and a minor.”).
Because there is no binding authority declaring the stalking statute

unco nstitutional and b eca use the stalking sta tute is mat e ri al ly differen t from the
section of the harassment statute that this court has declared un constit uti onal, the
Smith exception does not apply; t hus, Fernandez’s first

- time facial constitutional challenge to the stalking s tat ute falls under the general rul e t ha t provides such compl aints may not be raised for the first time on appeal. See Beck , 541 S.W.3d at 855;
Smith , 463 S.W.3d at 895

– 97; K aren e v , 281 S.W.3d at 434. Accordingly, because
Fernand ez forfeited his third and fo urth points for appe llate revie w , we overrule

t hem.
IV. C ONCLUSION Having ove rruled all four of Fernandez ’ s points on appea l, we affirm t he trial

court ’ s judgment

. /s/ Dana Womack
Dana Wom a ck Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered : March 5, 2020