## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-15-00400-CR

JOHN ALLEN LESSNER APPELLANT V. THE STATE OF TEXAS STATE

---------- FROM THE COUNTY COURT AT LAW OF HOOD COUNTY TRIAL COURT NO. 47971

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### MEMORANDUM OPINION 1

---------- John Lessner appeals his conviction bya jury for misdemeanor assault. See Tex. Penal Code Ann. § 22. 01(a)(1) (West Supp. 2016). 2 In his sole point, appellant contends the trial court abused its discretion by admitting the expert

1 See Tex. R. App. P. 47.4.

2 The jury also assessed his punishme nt at 365 days’ confinement and a $4,000 fine.2 testimony of Jerri Vaughn about family viol ence in general an d typical behaviors of victims of family viol ence because the te stimony was not re levant and was unfairly prejudicial. We affirm. Background At trial, the complainant testified th at on March 22, 2015, during the course of an argument 3 at the house she had been livin g in with appellant, appellant grabbed her by the hair and wrist, “slamm ed” her to the floor and used her body to wipe up spilled tea, grabbed her by the face and “slung” her against the refrigerator, and––while pinning her against the refrigerator with his forearm––bit her on the cheek, no se, and chin, leaving visible bi te marks. At some point during the struggle, the comp lainant was able to call 91 1 using a panic button on the phone. But when the po lice arrived, she told an officer that nothing had happened and that she did not want to press charge s. The complainant testified that she was afraid to get appellant in trou ble and felt panic at the thought that he would get angry. Nevert heless, after speaking wi th the complainant and appellant, and observing the bruises and swelling on th e complainant’s face, the police decided to arrest appellant. The complainant refused to complete a written statement for the police, but she did request an emergency protective order and allowed an officer to take

3 Appellant and the complainant were liv ing in his parents’ house; he got angry with the complainant for spilling tea “all over” the kitchen floor and “disrespecting” hi s parents’ house.3 photographs of bruising on her arms a nd face. She also drove herself to the hospital where she told hospital staff that appellant had assaulted her. The complainant allowed police to take addition al photographs of her injuries the next morning and four days later. After appellant was charged with assault, the complainant signed two affidavits of nonprosecution. At trial, she testified that she had lied in at least one of the affidavits because of fear that appe llant would “get in tr ouble.” In addition, she sought to vacate the protective order, also “to protect [appellant].” On cross-examination, appellant’s counsel questioned the complainant about her affidavits of nonprosecution, her wavering willingnes s to testify, her differing versions of events over the course of the case , and the fact that she had willingly engaged in sadomaso chistic activities with ap pellant in the past and enjoyed “rough sex,” with her as the submissive partner. The complainant also testified that as part of that rough sex, appellant often bit her, particularly on the thighs, arms, and ears, bu t he never bit her face. After the complainant testified, ov er appellant’s rule 702 and 403 objections, 4 the trial court admitted the expert testimony of State’s witness Jerri Vaughn about the dynamics of family viol ence and typical behavior of domestic violence victims in relation to their abusers. Tex. R. Evid. 403, 702. More

4 Appellant also objected that Vaughn was not qualified to testify as an expert and that her testimon y was not reliable. On ap peal, appellant’s challenge to the admissibility of Vaughn ’s testimony is limited to relevance and whether the evidence should have been excluded under rule 403.4 specifically, Vaughn, a licen sed master social worker and executive director of the Family Crisis Center in Johnson County, testified that victims of family violence often are reluctant to report their experiences for many reasons, including fear of economic consequences. Vaughn testified that it is “fairly common” for victims of domestic violence to sign affidavits ofnonprosecution out of fear, denial, and hope th at the abuser will change. She also said that it is common for victims to minimize the abuse they have suffer ed due to shame, embarrassment, and denial. According to Vaughn, abusers often control the finances in a relationship, and “[f]amily violence is all abou t power and control [with] . . . the ultimate goal . . . to keep [the victim] in th[e] re lationship where they have all the power.” Admissibility of Vaughn’s Testimony A trial court’s determination as to the admissibility of ex pert testimony is governed by an abuse ofdiscretion standard. Montgomery v. State , 810 S.W.2d 372, 391 (Tex. Crim. App. 1 991) (op. on reh’g). An appe llate court must affirm a trial court’s ruling if it was at least with in the “zone of reasonable disagreement.” Id. We consider the ruling in light of what was before the trial court at the time it made the ruling. Billodeau v. State , 277 S.W.3d 34, 39 (Tex. Crim. App. 2009). Admissibility of expert testimony is governed by rule 702 of the Texas Rules of Evidence, which states, A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other5 specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue. Tex. R. Evid. 702; Tillman v. State , 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). The threshold determination is whether the proponent of the expert testimony proved by clear and convincing evidence that the testimon y is “sufficiently reliable and relevant to help the jury ” in understanding the evidence or determining an issue of fact. Tillman , 354 S.W.3d at 435 (citing Kelly v. State , 824 S.W.2d 568, 572 (Tex. Cr im. App. 1992)). Expert testimony is relevant or “fit[s]” the case if it assists the trier of fa ct and is sufficiently tied to the facts of the

case. Id. at 438; Jordan v. State , 928 S.W.2d 550, 555 (Tex. Crim. App. 1996);

see Tex. R. Evid. 702. “Evidence admissible under rule 702 may include testimony which compares general or classical behavioral characte ristics of a certain type of victim with the specific vi ctim’s behavior patterns.” Scugoza v. State , 949 S.W.2d 360, 363 (Tex. App.—San Ant onio 1997, no pet.) (citing Duckett v. State , 797 S.W.2d 906, 917 (Tex. Crim. App. 19 90) (holding that expert’s testimony comparing reaction of complaining child wi th general behavioral characteristics of abused children helped jury in dete rmining whether assault occurred); 5 Fielder v. State , 756 S.W.2d 309, 321 (Tex. Crim. App. 1988) (holding same as to female

5 The court of criminal ap peals has disapproved of Duckett , but only to the extent that it could be read “to hold thateven expert testimony that is relevant as substantive evidence may yet be inad missible unless it serves some rehabilitative function.” Cohn v. State , 849 S.W.2d 817, 819 (Tex. Crim. App. 1993).6 victims of domestic violence)); see Brewer v. State , 370 S.W.3d 471, 474 (Tex. App.—Amarillo 2012, no pet.). Because the average juror w ill not typically be familiar with the effect of family viol ence on victims and the dynamics of the relationship between abuser and victim, expert testimony has generally been held to be admissible to explain recantat ions, delays in repo rting, lies to the police, and why a complainan t would continue living with a family member after an alleged assault. See Salinas v. State , 426 S.W.3d 318, 323 (Tex. App.–– Houston [14th Dist.] 20 14) (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 Dist.] 2007, pet. ref’d); Scugoza , 949 S.W.2d at 363; see also Mendoza v. State , No. 08-13-00293-CR, 2015 WL 5999596, at *2, *4–5 (Tex. App.—El Paso Oct. 14, 2015, pet. ref’d) (not designated for publication) (holding testimony regarding cycle of family violence relevant when assault was witnessed by third party but victim refuse d to cooperate with police and testified for defense); Capello v. State , No. 03-05-00553-CR, 2006 WL 2453021, at *4 (Tex. App.—Austin Aug. 25, 2006, pet. ref’d) (mem. op., not designated for publication) (determining that expert te stimony on cycle of abuse was relevant because it assisted jury in understanding why victim ofdomestic vi olence might lie to police). Appellant acknowledges that such evidence can be admissible but nevertheless argues that th e admissibility of such ev idence is limited to only those cases in which the opponent of the evidence or the eviden ce itself raises a7 material issue requiring such explanation and that no material issue was raised here. We need not decide the issue as framed by appe llant because the evidence was relevant to a material issue raised by t he evidence in the case. Appellant’s counsel told the jury in hi s opening statement that the complainant had told numerous versions of the events of March 22, 2015, that she had put in writing her desire to drop the charges, and that she has “zero” credibility. According to appellant’s counsel, he and the complainant had merely engaged in consensual “rough sex” on March 22, 2015, and she thereafter leveraged the threat of charges to extort him and his fa mily for money. Additionally, appellant cross-examined the complainant exte nsively regarding the affidavits of nonprosecution, her wavering willingness to testif y, her extensive cooperation with the defense, and her different vers ions of events. Accordingly, the complainant’s inconsistentbehavior was clearly rais ed by the evidence, and Vaughn’s testimony explaining why a victim of dom estic violence would report an assault but then refuse to press charges, sign affidavits of nonprosecution, and cooperate extensively with the defense wa s relevant to provide another possible explanation of that behavior. See Dixon , 244 S.W.3d at 480; Capello , 2006 WL 2453021, at *4. Appellant contends that even if Vaughn’s testimon y was relevant, it was nevertheless inadmissible under rule 403. Under rule 403, a court may exclude relevant evidence if its prob ative value is subs tantially outweighed by a danger of unfair prejudice, confusion of the issues, th e jury’s being misled, undue delay, or8 the needless presentat ion of cumulative evidence. Tex. R. Evid. 403; Gigliobianco v. State , 210 S.W.3d 637, 640–41 (Tex. Crim. App. 2006) (“Relevant evidence may be excluded if its probativ e value is not worth the problems that its admission may cause. Th e issue is whether the search for truth will be helped or hindered by the interj ection of distractin g, confusing, or emotionally charged evidence.” (quoting J. McLaughlin et al., Weinstein’s Federal Evidence § 403.02[1][a] at 403–6 (2006 rev.)). In deciding whether to admit evidence over a rule 403 objection, a trial
court must balance (1) the inherent probat ive force of the proffered item of evidence along with (2) the prop onent’s need for that evidence against (3) any tendency of the evi dence to suggest decision on an improper basis, (4) anytendency of the evid ence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence w ill consume an inordinate amount of time or merely repeat evidence already admitted. Id. at 641–42. We review the trial court’ s decision for an abuse of discretion. Id. at 642–43. Vaughn’s expert testimony was pr obative to expl ain behavioral characteristics of victims of family vi olence, generally, and the complainant’s behavioral patterns by comp arison. For the reasons st ated above and similar to those cited in Scugoza , Vaughn’s testimony helped explain why someone who had been a victim of fam ily violence would report an assault but later sign an9 affidavit of nonprosecution, 6 waver in deciding to testify, 7 tell different versions of what happened to different people, and cooperate extensively with the defense. 949 S.W.2d at 363. Appella nt’s argument that Vaughn did not research this particular case, its facts, or have any interaction with or knowledge of the complainant or appellant detracts little, if any, from the evidence’s probative value. See id. at 361, 363; see also Tex. R. Evid. 703; Mendoza , 2015 WL 5999596, at *4 (noting thatexpert is not required to interview witnesses or conduct an investigation of the facts for expert’s testimony to be admissible). Appellant argues that Va ughn’s testimony was un duly prejudicial because it could have led the jury to believe that he had comm itted extraneous acts of violence against the complainant or th at he had engaged in the types of controlling behavior that Va ughn had described, thus influencing the jury to convict him for being an abuser in general . Here, Vaughn’s description of the cycle of violence, traumaticbonding, victim behavioral characteristics, and subsequent opinion fi nding similarity with the comp lainant’s behavioral patterns

6 Vaughn testified that this practice is “fairly common” ather shelter and typically results from (1) aggressor intimidation by the aggressor himself, his family members, or so meone else, (2) fear of financial or livelihood instability, (3) a hope that the aggressor changes, and (4 ) denial or minimiza tion of abuse and a lack of control.

7 Vaughn testified victims may commonly hesitate to testify because they still value the relationship or they have experienced “traumaticbonding,” in which victims irrationally identify with a perpetrator who is providing economic and emotional sustenance. Al ternatively, Vaughn stated victims may waver due to brain trauma-induced swin gs in mood or focus.10 naturally assumes the presence of abuse , but it does not suggest a decision on an irrational basis beyond that of the underlying assault. See Duckett , 797 S.W.2d at 913 (noting child sexual ab use accommodation sy ndrome evidence assumes the presence of ab use but properly explains sexually abused child’s reactions to it). And although Vaughn’s testim ony tends to make the complainant’s testimony more plausible, it is well-settled that we should not exclude otherwise admissibl e substantive evidence fo r mere injury to an appellant’s case. See Pawlak v. State , 420 S.W.3d 807, 81 1 (Tex. Crim. App. 2013) (noting that rule 403 excludes on ly unfairly prejudic ial evidence because “all evidence against a defendant is, byits very nature, designed to be prejudicial”). Moreover, other evidence su ggested that a history ofdomestic violence did exist and that the complainant’s and appell ant’s relationship sh ared some of the typical relationship characteristics about which Vaughn testified. From October 2014 through March 2015, the complainan t was not employed. She often went with appellant during the daywhile he worked in his landscaping business. The complainant and appellant lived in appella nt’s father’s and stepmother’s home and did not pay rent. Appellant was allo wed to use his parents’ truck, but the complainant was not. Although the comp lainant testified that she received monthly checks from her fath er’s estate during that ti me, she had no car and no cash saved.11 The complainant testified that she refe rred to appellant’s father as “Big Papa.” According to the co mplainant, as the police were arresting appellant and he walked past her, he told her to “[c]all Big Papa and tell him our [8] truth,” which she said meant “[t]o say it was all sex.” She also said, “That’s what I always told my family.” When the comp lainant contacted appellant’s father before going to the hospital, he suggested t hat she contact the arraig nment judge. So after leaving the hospital, she waited five hour s in the parking lot of the Hood County Jail until the arraignment judge arrived. She tried to prevent the judge from signing an emergency protective order, but the judge would not consider her request. In explaining why she went to see the arraignment judge, the complainant explained that she “was just trying to right my wrongs,” which meant that she “had to make it right” and that appellant “cou ldn’t get in trouble.” She further stated, “[Appellant] always told me to right my wrongs.” 9 [Emphasis added.] The complainant testified that appella nt’s attorney called the day after appellant’s arrest and told her that she could sign an affi davit of nonprosecution. As the complainant was leaving for the a ttorney’s office, appellant’s stepmother

8 The jury could have reason ably inferred that “our truth” was different from “the truth.” See, e.g. , Temple v. State , 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).

9 The complainant admitted wh ispering, “Don’t let him go,” during a meeting at the prosecutor’s office because she “couldn’t right th is wrong, . . . and he was going to be mad. He was going to be mad because I couldn’t get this one right.”12 drove up, so the stepmother drove the complainant. The co mplainant testified that she lied in the affidavi t so that appellant would no t “get in trouble” because he was “all [she] had”: “He protected me. I had to protect him.” In reference to her statement in the affidavit that nothi ng had happened, sh e testified, while crying, “And I did our truth: It was rough sex. I did. I did. I tried.” The complainant also signed the second affi davit of nonprosecution at appellant’s attorney’s office. Finally, after appellant was arrested and the complainant returned to his parents’ house, appellant’s parents told her that she had to move out in four days. The complainant had already told them that she was not going to fight them because she knew t hat appellant would “come home,” so she would go somewhere else instead. The police took he r to a safe house. Thus, there was evidence before the trial court that the complainant was financially dependent on appellant and his parents––consistent with a typical victim’s motive to recant––t hat appellant appeared to be in a position of power and control in the relationship, both ec onomically and sexually, and that the complainant was afraid of what woul d happen after she called the police and appellant was arrested. Vaughn’s gene ral testimony––which she made clear was not based upon any know ledge of the complainan t or the relationship between appellant and the complainant––was no more likely to suggest that appellant was an abuser in general t han this specific testimony of the complainant.13 Appellant’s reliance on the analysis in Gonzalez v. State , No. 03-07- 00323-CR, 2008 WL 2736889 (Tex. App. ––Austin July 10, 2008, pet. ref’d) (mem. op., not designated for publication), is misplaced. In that case, the evidence showed that Go nzalez, who was married to but separated from the complainant, took her to a motel against her will and fo rced her inside after the complainant had met him to disc uss their income tax refund. Id. at *1. The complainant cried out to a maid who was standing nearby. Id. The maid notified the front desk attendant, who called the room; when Gonzalez answered and said he and his wife were having marita l difficulty and everyt hing was fine, the motel staff accepted his answer an d did not take any other action. Id. After Gonzalez threw the complainant on the bed and tried to gag her, she became afraid; after initially refusing his reques ts for sex, she fina lly agreed because she was afraid she “wouldn’t walk out of that room alive” if she did not. Id. at *2. Afterward, the complainant accompanied Gonzalez to a restaurant, where she called her divorce attorney a nd 911 from the restroom. Id. Gonzalez was charged with and convicted of aggravated kidnapping and aggravated sexual assault. Id. at *1. Over Gonzalez’s rule 403 objection, th e trial court admitted testimony from a San Marcos police officer about the cycle of domestic violence and why a victim would return to an abus er or keep the abuse secret. Id. at *4–5. The trial court also allowed the office r to testify about an unrela ted investigation in which she had been involved; in that case, t he wife had been abused and sexually14 assaulted by her husband fo r years but did not call th e police until the husband strangled her and she lo st consciousness. Id. at *5. The State contended that the evidence rebutted the defense’s theorythat the entire encounter with the complainant was consensual as supported by the eviden ce that she did not cry out or try to get help when they were leav ing the motel and that no one heard any unusual noises from outside the mote l room during the alleged assault. Id. The Austin court of appe als held that the evidence was inadmissible under rule 403. Id. The court concluded that the testimony had very little probative value because no evidence showed (1) t hat the complainant had displayed the typical characteristics of an abused spou se that had been described by the officer, (2) that the complainant delayed in making an outcry , or (3) that the complainant’s version of ev ents was inconsistent. Id. Moreover, the same evidence failed to explain why the comp lainant would have cried out when she and Gonzalez were entering the room but not when they were leaving. Id. The court thus concluded that the slight probative value of the evidence was substantially outweighed by the danger ofraising a suspicion in the jurors’ minds that Gonzalez had abused th e complainant in the past. Id. Gonzalez is thus distinguishable from th is case, in which the expert’s testimony was relevant and other evidence tended to show that appellant had assaulted the complainant in the past. We therefore co nclude that the probative value of the evidence was no t substantially outw eighed by the possibility of unfair prejudice derived from an inference th at appellant had en gaged in abusive15 conduct described beyond the offense for which he was on trial. Accordingly, the trial court did not abuse its discretion byadmitting Vaughn’s expert testimony under rule 403. See Cohn v. State , 849 S.W.2d 817, 82 0–21 (Tex. Crim. App. 1993).Because the trial court did not abus e its discretion by admitting the evidence over appellant’s rule 403 and 702 objections, we overrule appellant’s point. Conclusion Having overruled appellant’s sole point, we affirm the trial court’s judgment. PER CURIAM PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ. DAUPHINOT, J., dissents without opinion. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: August 25, 2016