## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00191

- CR

CHADWICK DARAY HEATH , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 336th District Court Fannin County, Texas Trial Court No. CR

- 22

- 28584

Before Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice Rambin2 

### ME MORANDUM OPINION
A Fannin County jury convicted Chadwick Daray Heath of stalking 1 and, after finding the State’s punishment

- enhancement allegations true, asse s s ed a sentence of twenty

- seven years’ imprisonment. On appeal, Heath argues that (1) the jury’s verdict is not supported by sufficient evidence, (2) the trial court erred by denying his motion for mistrial after the State mistakenly played an in a dmissibl e , unredacted recording instead of the redacted recording , and (3) the trial court erred by refusin g to submit the lesser

- included offense of harassment. We find that the jury’s verdict i s supported by legally sufficient evidence, the trial co u r t did not ab u se its di scretion b y denying the motion for mistrial, and Heath was not entitled to a
lesser

- in cluded

- offense instruction. As a result, we affirm the trial court’s judgment.
I. The Jury’s Verdict of Guilt Is Supported by Legally Sufficie n t Evidence
H e ath was a ccused of stalking Marquista Owens , the mother of his two young children. In his first point of error, Heath argues that the evidence is legally insufficient to support the jury’s verdict of guilt. To examine this point, we must r ev i e w the en tire record.
A. The Evidence at Trial
The record established that Heath and Owens were in a dating relationship for several years and lived together in Dallas, Texas , with their children

. 2 Carol White Okusolubo , Owens’s

c ousin, described th e relation ship between Heath and Owens as “kind of toxic.” Owens , who was hesitant to testify, said there were several incidents between her and Heath that made her

1 See T EX
. P ENAL C ODE A NN
. § 42 .072(b) (Supp.)

.
2 Owens ’s oth er biological children , who w ere not related to Heath , also lived in the apar tment

.3

feel as if Heath would hurt her. Although O wens did not elaborate about most of t hose inc idents,
sh e testified that s h e left Heath and move d from Dallas because of “an altercation . . . [that] was just too much for [her] to handle.” According to Owens, on March 18, 2021 , an altercati on in their shared apartment became physical, Heat h threate ned her by pointing a firearm in her direction, and she became “really frightened.” Owens called 9

- 1

- 1, but Heath “just threw the phone , ” causing her to hang up.
Ow en s again called the police, was able to leave the apartment, and obtained an eme r gency
pr otective o rder against H eath “for him to stay away from [them] .” That month, Owens moved into her family home next door to her grandmother’s house in
Tr en ton, Texas, “[t]o be safe.” When the emergency protective order expired, Owens beca m e

“ [ n]ervous .” She test ified that she r ec eived harassing and “aggressive[]” text messages from
Heath and told him “[c]onstantly” to stop sending t he messages, but to no avail. Owens said, “ I t was such a nightmare.”
Okusolubo said that Heath drove to O w ens’s hou se sometime in May and “kept b lowing his horn” in the middle of the street. Okusolubo said th at she spoke with Heath because Owens “was fearful” of him. Owens testified that , o n May 17, 2021, “[Heath] was at [her] house, and
all of [her] yard s t uff was g one, and it ma de [ her] nervo us .” Owens cla rified that items fr om her yard were thrown into an empty yard across the street. On seeing th at , Owens drove to the Trenton Police Department (TPD) and spoke with investigator Greg Ro o kwood

. Accor d ing to
Ro o kwood , O wens was “[v]ery kin d o f frantic” and “[v]ery concerned” while reporting “[t]hat4

her ex had been to her house and [had] thrown her children’s bikes and other items across the

street

. ” Ro o k wood said that Owens wanted to get a protective o r der agai nst Heath

. Heat h had left by the ti me Owens returned home from speaking with Ro o kwood but
came back after 10:00 p.m. , after Owen s and her children were sleeping. According to Owens, Heath “banged on” her bedroom wind ow and asked to be l et in

. Owens te stified that Heath was “already agitat ed ” and “was not talking like his self [sic] ,” which made Owens feel “[s]cared.” According to Owens, Heath was “pacing back and forth by [her] window, talk ing outside his
self , mad, agitated.” After p acing for fifteen minutes, Heath t hreatened Owen s and said that he
would force her and the children to come out of the house

. According to Owens, Heath went “to his car and [got] something and pour[e d] it out . . . [o]n the corner of the house” by her w indow, making O wens believe they “ we re going to be hu rt . . . [by] a fire to [her] home. ” Owens became “terrified” and called the police. S he told the jury tha t , before Heath retrieved the liquid,
her “ level of fear

. . . was at a seven or eight,” but o nce she saw the liquid, it “was like, off the charts” be cause she thought “[there w a s] about to be a fire.”
Owens’s 9

- 1

- 1 call, whi ch was received at approximate ly 11:00 p.m., was played fo r the jury. On the call, Owens reported that Heath was “outsi de [her] door being real aggressive” an d
asked responders to come immediat ely

. In tears, Owens said that she had made a complaint
earlier w ith Ro o kwood but , even so, Heath was “hollering” outside of her house. Owens told the dispatchers that her dau ghter said He ath was trying to break the win dow. Marcus Puccini, a serge an t with the Fannin County Sheriff’s Offic e, arrived on the scene,
where he fo und Owens “scared to death” and “scared for her life.” William Griffin, a TPD5

officer, described Owens as “very upse t and emotional.” He k new Owen s was afr aid of Heath
because o f her “r epeated statements” that she was “just worried and scared for her kids, scared for her safety.” On P uccini ’ s body

- cam era recording , Puccini noted that a protective ord er following an assault had been issued again st H eath but was e xpired. He als o saw that Owens ’s belongings from her front yard were strewn in the empty lot across the street. Owens told
Puccini that her encounters with Heath had been going on for four m onths. Pu ccini testified that
Owens “was ter

rifie d, sh e was crying, wiping her eyes. ” H e continued, “ I c[ould ] hear the tremor in her voice.” Owens told Puccini that Heath had started pouring a liquid on the ground.
Puccini questioned Heath, who said he had arrived at Owens’s house at 11:00 a.m. ,

s ta yed until 7 :00 p.m., and returned late r that night. Body

- camera footage showed that Heath was carrying a bottle of rubbing alcohol and olive oil, which he said was prayer oil. 3 Heath, who
told the offic ers that he had been try ing to see his children for three weeks , deni ed throwing any of Owens’ s property into the neighboring yard. Griffin issued a criminal

- trespass warning to
Heath and warned him not to return. Despite the criminal

- tr espass warning , Owens testi fied that “there was no change” and
that Heath continued to return to her home “[a]ll th e time.” Owens said she felt harassed by Heath and that “[i]t was very overwhelming.”
Grif fin testified that , on May 27, he saw Heath at a local convenie nce store and asked him why he was in town

. This encou nter was recorded on Griffin ’ s body cam era
. When Heat h

3 Heat h al so claimed that the alcohol was for pra yer.6

said he was goi ng to deliver a “ Coke ” and money to Owens, Griffin warned him about the criminal trespass and told him no t to go. Heath admitted Owens told him that he had scare d her.
On M ay 31, 202 2, w hile on another call, Ro o kwood s aid he encount ered Heath at Owens’s residence. On the body

- cam era recording of that enc ounter , Ro o kwood reminded
Heath that he could not be n ea r the property and asked him to leave and not return

. Ro o kwood
testified th at “Heat h co uld not be around Ms. Owens,” including for reason s ot her than the criminal trespass

. After hearing thi s evidence, the j ury convicted Heath of stalking.
B. Standard of Review “In evaluating legal sufficiency, we revi ew all the evidence in t he lig ht m ost favorable to the trial court’s judgment to det er mi ne whethe r any rational jury could have found the e ssential
elemen ts of the offen se beyond a reasonable doubt.” Williamson v. State , 589 S.W.3d 292, 297 (Tex. App.

— Tex arkana 2019 , pet. ref’ d) (citi ng B roo ks v. State , 323 S.W.3d 893, 912 (Tex. Crim. Ap p. 2 010)). “ Our rigorous review focuses on the quality of the evidenc e presented.” Id. (citing Brooks , 323 S.W.3d at 917

– 18 (Cochran, J., concurring)). “We examine legal sufficiency
under the d irecti on o f t he Brooks opinion, while giving deference to th e re sponsibil ity of the jury ‘to fairly resolve conflic ts in testimony , to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’” Id. ( quoting Hooper v. Sta te , 214 S.W. 3d 9, 13 (Tex. Crim. App. 2007)). “In our review , we consider ‘events occurring before, during and afte r the commissio n of
the offens e and may rely on actions of the defendant which show an understanding and common7

design to do the prohibited a ct.’” Id. (q uoting Hooper , 214 S.W.3d at 13). “It is not r eq ui red
that each fact ‘point directly and independentl y to the guilt of the appellan t, as long as the cumulative force of all the incriminating circumstances is sufficient to support the convic ti on.’”
Id. (q uoting Hooper , 214 S.W.3d at 13). “Circumstant ia l evidence and direct evidence are equally probative in establishing t he guilt of a defendant, and guilt can be established by circumstantial evidence alone.” Id. (citing Ramsey v. State , 473 S .W.3d 805, 80 9 (Tex. Crim. App. 2015); Hooper , 214 S.W.3d at 1 3)

. “Furth er, ‘we must consider all of the evidence
admitted at tri al , even if tha t evidence was improperly admitted.’” Id

. (quoting Fowler v. State , 517 S.W.3d 167, 176 (Tex. App.

— Texarkana 2 017 ) , rev ’ d i n part , 544 S.W.3d 844 (Tex. Crim. App. 2018)).
T he jury, a s “the sole judge of the credibility of t he witnesses and t he weight to be given their testimony[, could] ‘believe all of [the] witnesses’ testimony, portions of it, or none of it.’ ”
Id. (s econ d alteration i n original) (quoting Thomas v. State , 44 4 S.W.3d 4, 10 (Tex. Crim. App. 2014)). “We give ‘almost complet e deference to a jury’s decision when that decision is based upon an evaluation of credibility.’” Id. (quoting Lancon v. St a te , 253 S.W. 3 d 699, 705 (T ex. Crim. App. 2008)). “Legal suffic ie nc y of the evidence is measured by the elements of the offense as d ef ined by a hy pothetically correct jury charge.” Id. at 298 (citing Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 19 9 7)). He re, t he State alleged in the in dictment that Heath,

o n mo re than one o ccasion, and pursuant to the same scheme or course of con du ct that was directed specifically at Marquista Owens,

. . . knowingly engage [d] in conduct that the defenda nt knew or rea sonab ly s hould have known that the8

complainant would regard a s threatening b odily injury or death to the complainant or that an offen se would be co mmitted against the complainant ’ s property , namely: threaten [ing] t he complainant with bodily injury or d eat h; th reat en [ing] the complainant with bodily injury or deat h us ing a firearm ; interfer[ing] with an emergency call; r emov [ing] proper ty from the co mplaint ’ s [sic] residence; threaten [ing] to burn property; threaten [ing] t o kill himself; threa ten [ing] pr ope rty d amag e; going to complainant ’ s residence multiple times a nd harassing, y elling, or causing a disturbance; attempt [ing] to go to c om plainant ’ s r esidence; attempt [ing] to break a window at complainant ’ s residence; pouri ng an unknown liquid around comp lai nant ’ s re sidence; and tell [ing] the complainant he will mak e co mplainant com e outside the residence or “ he would die, and she would t oo
. ” And the d efendant ’ s conduct caused the complainant to be placed in fear of bodily injury or death or in fear that a n o ffens e wi ll be committed against the complainant ’ s property , or to feel hara ssed, annoyed, alarmed, abused, tormented , embarrassed, o r offended

. A nd the defendant ’ s conduct would cause a reasonable person to fear bodily injury or death or th at an offen se would be committed against the complainant ’ s property or to f ee l harassed, a nnoyed, alarmed, abused, to rmented, embarrassed, or offen de d

. C. Analysis
As applied to this case, t he statutory text for the offense of stalking specifically ref ers to the off ense of h arassment but requires additional factors

. See A ct o f May 24, 201 3 , 83 d Leg.,
R.S

. , ch. 1278, § 2, 2013 Tex. Gen. La ws 3 23 1, 3231 (amended 2023) (current version at T EX
. P ENAL C ODE § 42.072 (a)(1 ) )

. 4 Under the applicable por tion of the harass ment sta tute , Section 42.07, a person commits the offense of h ar as sment “ if, with intent to hara ss, annoy , a larm, abuse, torment, or embar rass a no ther, the person: . . . threatens, in a manner reasonably likely to alarm the person receivi ng the threat, to inflict bodi ly injury on the person or to commit a felony agai ns t . . . the person’s pro perty. ” See Act of May 12 , 2021, 87th Leg., R.S., ch. 1 78 , § 1, 2021

4 Sec ti on 4 2 .072 was amended by the T exas L e gislature in 2023

. See Act of May 25 , 2023, 88th Leg., R.S., ch. 947 , § 2, 2023 Tex. S ess. Law Service 3028, 3029 (codified at T EX
. P ENAL C ODE § 42.072 ) ( e ffective Sep t. 1, 2023). This amendment took pl ace after Heath ’ s o ffense. As a result, we appl y the former law applicable to Heat h ’s offense.9

Tex. Gen

. Laws 38 5, 385 (amended 2023) ( current version at T EX
. P ENAL C ODE § 42.07(a)( 2 ) )

. In con trast, a per son commits the offense of stalking if he,

on mor e th an one occasion and pu rsuant t o the sam e scheme or cou rse of conduct that is d ir ecte d specifically a t a n other person, knowingly engages in conduct that: ( 1) constitutes an offense under Sec tion 42. 07, or that the actor knows or reasonably should know th e other person w ill rega r d as threatenin g: (A) bodily injury or death for the o th er p erson;

. . . (C) that an offense will be committed against th e other person’s property; (2) causes t he oth er per son
. . . to be placed in fear o f bodily injury or d ea th or in fear that an o f fense will be c ommitted against the other person’s prope rt y , or to feel harassed, annoyed, alarmed, abused, tormented, embarr assed, or offended ; and (3) would cause a reas on able person to: (A) fear bodil y injury or death for hi mse lf o r herself

. . . (C) f e ar that an offe nse will be committed against the person’ s property ; or (D) feel harassed, annoyed, alarmed, abused, torment ed, embarrassed, or offended

. Act of M ay 24, 2 01 3 , 83 d Leg., R.S

. , ch. 1278, § 2, 2013 Tex. Gen. La w s 3 2 3 1, 3231 (amended 2023).
While h arassment can be accomplished by one threat reasonably likely to alar m the recipie nt , stalking requires a sche me or course of conduct that the actor knowing ly engag e s i n. See Act of May 12 , 2021, 87th Leg., R.S., ch. 1 7 8 , § 1, 2021 Tex. Gen

. Laws 38 5, 385 (amended10

2023) ; Act of May 24, 201 3 , 83 d Leg. , R.S

. , ch. 1278, § 2, 2013 Tex. Gen. La ws 3 23 1, 3231 (amended 2023) ; Seg ura v. State , 100 S.W.3d 652, 656 (Te x. App.

— Dall as 2003 , no pet. )

. Unlike harassm ent, which merel y re quires alarm to the recipient, stalk in g also requires the recipient of the threat to (1) be placed in fear of bodily injury or death , (2) be placed in fe ar that
an off ense will b e committed ag ainst a pe rson’s property, or (3) feel ha rassed, ann oyed, al ar me d, abused, tormented, embarrassed , or offended

. See Act of May 12 , 2021, 87th Leg., R.S., ch. 1 78 , § 1, 2021 Tex. Gen

. Laws 38 5, 385 (amended 2023) ; Act of May 24, 201 3 , 83 d Leg., R.S

. , ch. 1278, § 2, 2013 Tex. Gen. La ws 3 23 1, 3231 (amended 2023)

. It a ls o requires such fear or feeling s to be reason able under the circumstan ces. See Act of May 24, 201 3 , 83 d Leg., R.S

. , ch. 1278, § 2, 2013 Tex. Gen. La ws 3 23 1, 3231 (amended 2023)

. As a resu lt, u nde r th e hypothetically corre ct jury charge, th e State h ad t o prove that (1) Heath , ( 2 ) “ on more than one occasion , and pursuant to the same sche me or course o f
conduct t hat was direct ed specifically at ” Owens , ( 3 ) knowingly enga ge d in conduct listed in the
i ndi ctment , ( 4 ) which Heat h k new or reasonably believe d th at Owens would regard either as (a) threatening bodily injury or death , (b) threatenin g an offense a gainst her property , or ( c) harass ing , annoy ing , alarm i ng , abus ing , t orment ing , embarrass i ng , or o f fen sive , ( 5 ) that
caused O we ns to have such fears or fe el ings , and ( 6 ) that would cause a reasonable person to have such fears or feelings

. Se e Plo eger v. Sta te , 189 S.W.3d 799, 808 (Tex. App.

— Houston [ 1st Dist.] 2006 , no pet

. )

.11

Here , the State establis hed that Owens had reason t o fear Heath. He had threa te ne d her life during an argument in Dallas by pointing a firearm in her direction. 5 The even t caused
Owe ns to seek a p rotective order and move to Tr enton with her children to ensure her safety

. Even afte r moving, O wens testif i ed that she received aggres si ve and harassing text messages from Heath, who did not listen to her pleas to stop sendi ng s uch messages

. Okusolubo t estified
that , even though Owen s fear ed Heath, he cont inued trave l ling to T r ento n. The jury heard
evidence t ha t items from Owens’s yard we re thrown into a neighboring lot. Even though Heath denied disturbing Owens’s property, the jury could h ave rejected h is self

- serving testimony. Th e evidence showed that, on May 17, 2021, He a th rema ined on Owens’s property f ro m 11:00 a.m. until 7:00 p. m. , causing her enough fear to contact the TPD. Heath returned to Owens’s home that night and was “holleri ng” in an aggr essive manner, causing Owens t o fear for her safety

. When he started pou ring a l iqui d on her home, Owens f ea re d that Heath would burn he r house
down. Even after TPD issu ed a criminal

- trespass warning to Heath, he fa iled to abid e by it, even though he admitted that he had scared Owens. Owens said Heath ret urned to her home “[ a]ll the
tim e,” and the record show s that he was caught in the a ct on May 31.

5 “ In a prosecution for stalking, e ach party may offer testi mony as to all rel evant facts and circumsta nces tha t would aid the trier of fact in determining whether the actor ’s c onduct would cause a reasonab le pers on to experience a fear des cribe d by Section 42.072(a)(3)(A), (B), or (C), Pen al Code

. . . .” Act of May 19, 201 1, 82 d Leg. R.S., ch. 591 , § 3, 2011 Tex. Gen. L aws 1432, 1433 (c urrent version at T EX
. C ODE C RIM
. P ROC

. ar t. 38.46(a) ) . Such eviden ce
“ includ e[ s] the facts a nd ci rcumstances surrounding any existing or previous relationship between t he actor and th e a lleged v ictim .” Id. In a multifarious poi nt, Hea th c omplains that, although the Dallas event “ was relev an t and admissible unde r [A]rt icle 38.46 ” of the Texas C ode o f Criminal Procedure, “[i]ncluding the Dallas event as an all egation in the indictment

. . . was erroneous.” There wa s no objection to the Stat e’s ind ictment. Even so, f or purposes of our legal

- s uf ficienc y analy sis, we co nsider only the events occur ring in Trenton and determine whether those events esta blished the scheme o r cou rse of conduct contemplated by the stalking statute. Rega rding t hose event s, the Dallas event constitutes a relevant fa ct f rom whi ch the jury could determine the reasona blenes s of Owens’s fear of Heath.12

We find that the totality of the evidence show s th at Owe ns kno wingly engaged in a
course of conduct , liste d in the indictment, that was speci fically d irected at Owens. Becaus e of
the pro tective order previous ly issued against him in Dal la s and Owens’s r eplies to Heath’s harassing text messages, Heath kn ew or should have known th at Owens would be threatened b y his acts or, at the very least , would feel harassed, alarmed, or ann oyed eac h ti me he returned to
her h ome or sent aggressive text m es sages . Owens testified that she did have such feelings, and
the ju ry was fr ee to find tha t any reasonable person in her circumstances would have felt t he
same way. As a result, we conclude that su ffic ient e vidence support s the jury’s verdict and

overru le Heath’s fir st point of error.
II. The Trial Court Did Not Ab use Its Disc retion by Deny ing the Motion for Mistrial
I n his second point of error, Hea th argues th at the trial court erred by denying a m otion
for mistrial.
A. Factual Background
T he Sta te i ntroduced Exhibit 6, which was the body

- cam footage from Ma y 31

. On the

re cording , Ro o kwood told Owens that he was g oing to report Heath’s failure to abide by t he
criminal

- trespass war ning to Heath ’s p arole officer

. As soon as this statement was made , th e prosecutor stopped the footage , asked to approach the bench , and sa id, “I had it redacted. I mig ht have got the wrong copy. I did not do this intentionally.” Heath obj ected that there was “in adve rtent discl o sure of 404 and 609 material,” asked

“ fo r an instruction and, second to that, a mist rial.” The trial court immed iately instructed the jury to “ disregard that exhibit , ” but denied the motion for a mistrial. In its w r itten instructi ons,13

the tri al court furt h er instructed the jury to “not consi de r for an y purpose an y offer of evi dence
that w as stricken by the Court ” and reminded them that they had to “ treat it as though [they] had

ne ver heard it.”
B. Standard of Review
We review the trial co urt’ s denial of a motion for mistrial for abuse of di s cr et ion.
H awkins v. Stat e , 135 S.W.3d 72, 77 ( Tex. Cri m. App. 2004). A trial court abuses its disc retion
when its decision falls outside the zone of reasonable disagreement, t hat is, when the decision is “so clearly w rong as to lie outside the zone with i n wh ich rea sonable people might disagree.”
Hen ley v. S tate , 493 S.W.3d 77, 83 (Tex. Crim. App. 2016 ) (plurality op.) (quoting Taylor v.
State , 268 S.W.3d 571, 579 (Tex. Crim. A pp. 2008)).
A m istrial is a n extreme re m edy, to be sparingly used “for a nar r ow c lass of highly prejud i cial and incurable er rors” co mmitted during the trial process. Turner v. State , 570 S.W.3d 250, 268 (Tex. Crim. App . 2018). “Therefore, a mistrial sh ould be granted o nly in c ases where the ‘ r eference was clearly calculated to i n fl am e the m inds of the ju r y or was of such damn ing
char acter as to suggest it would be impossible to remove the harmful impression from the ju rors’ minds.’” Young v. State , 283 S.W.3d 854, 878 (Tex. Cr im. App. 2009) ( p er curiam) (quoting Rojas v. State , 9 86 S .W.2d 2 41, 250 (Tex. C rim. App. 1998)).
C. A nalysis Here, nothing suggests that the State playe d the unredacted version of Exhibit 6 on
p urpose to inflame the jury. The pr osecutor’s statem ent that the exhibit was played by mistake was not challenged

. Al so, bec ause “ [o] rdina r ily, a prompt instruc tion to disregard will cure14

error
. . . even one rega rding extraneous offenses , ” we cannot say that the trial court abused its
dis cretion by conclu ding tha t it was possibl e to remove any harmful impressio n lef t on th e jury by inst ructing them to wholly disrega rd the unredacted Exhibit 6

. Ovalle v. State , 13 S.W.3d 774, 783 (Tex. Crim. App. 2000 ) (per curiam) ; see Young , 283 S .W.3d at 878 ; Campos v. State , 5 89 S .W.2d 42 4 , 428 (Tex. Crim. App. [Pane l Op .] 1979) (a n instruction to disrega rd evidence
of an extraneo us arrest was sufficient to cu re any error)

. This is because “[t] he law generally
pre su mes that instructions to disre gard and other cautionar y instru ctio ns will b e duly obeyed by the jury. ” Arc hie v. St at e , 340 S.W.3d 734, 741 ( Tex. Crim. App. 2 011) ; see Gamboa v . State , 296 S.W.3d 5 74, 580 (Tex. Crim. App. 2009)

. As a result, we conclud e, as have many Texas courts , th at the trial court’s ins truction to disregar d the reference to parole contain ed in Exh ib i t 6 cured the error. S ee Murray v. Stat e , 24
S.W .3d 881, 892 (Tex. App.

— Waco 2 000 , pet. ref’d ) (instruction to disregard sufficient to cure error from officer’s testi mony that he contacted t he defen dant ’s parol e officer when searching for
him ) ; Strong v. S tate , 739 S.W.2d 506 , 508 (Tex. App.

— Fo rt Worth 1987), af f’d , 773 S.W.2d 543 ( Tex. Crim. App. 1989) (instruction to disregard cured witness ’ s remark that the defen dant was on parole); Kemp v . State , 846 S.W.2d 2 89, 308 (Tex. Crim. App. 19 9 2) ( error in ad mi ssion of testimony t hat defendant “ha d recentl y been released from the penit entiary ” was cured by an instruction to disregard that t estimo ny) ; Crawford v. State , 5 95 S.W.3d 792, 804 (Tex. Ap p.

— San A nton io 2019 , pet. ref’d ) (instruction to disr egard wi t ne ss ’s statement that th e defendant “had just gott en out of prison” was sufficie nt to cure any error); see also Brezina v. State , No. 07

- 22

- 00 110

- CR, 2023 WL 1415623, at *3 (Tex. App.

— Amarillo J an. 31, 2023 , pet. r e f’d )15

(mem. op., not designa t ed for publi c at io n) (error in referen ce to defendant’ s parole s tatus was cured by instruction to disregard) ; Davila v. State , No. 13

- 19

- 00068

- CR, 202 0 WL 5 051370, at
*2

– 3 (Tex. Ap p.

— Corpus Christi

– Edinburg A ug. 27, 2020 , pet. ref’d ) (mem. op., not design a ted for publ ic at io n) (instruction to d isregard cured e rror in of ficer’s testimony that defenda nt had “an active parole warrant ”) ; Hill v. State , No. 05

- 18

- 00490

- CR, 2019 WL 316246 2, at *2 (Tex. App.

— Dallas Ju ly 16, 2 019 , pet. ref’d ) (mem. op., not desig n ated for pub lica ti on ) (instruction to disregard cured a ny error from statement that defendant had a “parole violation”). Consequently,
we overrule Hea th’s second point of error.
I II. Heath Was Not Entitle d to a Lesse r - In clude d
- Offense Instruction Next, Heath argues tha t th e trial court erre d by failing to submit the lesser

- included
offense of ha rassment in the jury charge.
A. Standard of Review “We emp loy a two

- step process in our review of alleged jury

- charge error.” Mu rriet a v. State , 578 S.W.3d 552, 5 54 (Tex. App

. — Te xa rk ana 2019, no pet.) (citing Abdnor v. State , 871 S.W.2d 726, 731 (Tex. Crim . App. 1994)). “Initially, we determine whether error oc curre d and
then evaluate whet her sufficient harm resulted f rom the erro r to r equire reversal.” Id

. (quo t ing
Wilson v . St at e , 391 S.W.3d 131, 1 38 (Tex. App.

— Te xarkana 20 12, no pet.) (citing Abdnor , 8 71
S.W.2d at 731

– 32)). Our review of “whether a jury must be c harged on a lesser inclu ded offense” also involves “a two

- step ana lysis

. ” Arms trong v. State , 179 S .W.3d 84, 86 (Te x. A pp.

— Fort Worth
200 5, no pet.) (cit ing Moore v. State , 969 S.W.2d 4, 8 (Tex . Crim. App. 1998)); see Cavazos v.16

State , 382 S.W.3d 377 , 382

– 83 (Tex. Crim. App. 201 2) . “The first step is to dec ide whet her the

o f fense i s a ‘lesser included offense’ as defi ne d in article 37.09 o f the code of cr iminal
pro cedure.” Armstrong , 179 S.W.3 d at 86 (quoting T EX
. C ODE C RIM
. P ROC
. A NN
. art. 37.09).
“An offense is a lesser incl uded offense if . . . it is es tablishe d by proo f of the same or less than

a l l the facts requ ir ed to establish the commission of th e offense charged.” Id. (quoting T EX
. C ODE C RIM
. P ROC
. A NN
. art. 37.09(1)). Here, we find th e firs t step met since the record shows that the proof requir ed to es tabl ish

t hat Hea th stalked Owens wou l d necessaril y sub su me the elements of harassme nt

. See Act of May 12 , 2021, 87th Leg., R.S., ch. 1 78 , § 1, 2021 Tex. Gen

. Laws 38 5, 385 (amended 2023) ; Act of May 24, 201 3 , 83 d Leg., R.S

. , ch. 1278, § 2, 2013 Te x. Gen. La ws 3 23 1, 3231 (amended 2023)

. In the second step, w e co nsider “ whether there i s some eviden ce that would permit a rational jury to find that, if the appellant is g uilty, he is guilty only of the lesser o ffense. ” Cavazos , 382 S.W.3d at 3 83

. “ If the evi denc e raised at trial casts doubt on the greater offen se , a lesser

- included offen se instruction allows the jury to vote for a rational alternative. ” Id. at 3 85.

“ W h ile it is true that the eviden ce may be weak or contradi cted, the evidence must st ill be
d irec tly germane to the lesser

- included offense and mus t ri se to a level that a ra tional jury could find that if Appellant is g uilty, he is guilty only of the lesser

- i nclu ded of fense. ” Id. “ Meeti ng this threshold requires more than mere sp eculatio n

— it req uire s affirmative evidence that both
raises the lesser

- i nc lu ded offense and rebut s or negates an element of the greater offens e. ” Id.17

B. Analysis

“ Stalking r e quires a ctio ns (1) on more than one oc casion; (2) pursuant to th e same scheme or c ourse o f con duc t; a nd (3) directed specifically at one person. ” Segur a , 1 00 S.W.3d at 656 . “ The elements of harassment, on the other hand, may be satisfied with only one o f fense a n d
wi thout actions directed at one specific person. ” Id

. Heath argues tha t “the jury her e co uld have rationally concluded there was only one in ci de nt , May 17, where Owens was threatened or felt threatened by Heath.” We disagree.
Owe n s testified that , a fter he r m ove from Dallas , but before May 17, Heath would leave
items for he r and the chi ldre n while they were away, making Owens feel “ [n]e rvou s
. ” He also
sent her haras sing and aggressive text messages. Even after Owens spoke to Ro o kwood about
obtainin g a p rotec tive order against He ath on the afternoon of May 17 , Heath conti nued to return to O wens’s home “[a]ll the time , ” in cluding on the nigh t of May 17, without an inv itation

. Okusolubo said that Heath d r ove to Owens ’s house sometime in May , that he “kept blo w i ng his horn” in the middle of the street , and that Owens feared Heath

. On May 27, when Griffi n caught
Owens in Trenton , Heath admitte d Ow ens told him he had scared her. Yet, o n May 31, He ath again returned to Owen s’s home

. On several occa sions, Owens t e stified that sh e felt harassed by
and scared of Heath. Heath argues t h at “[a] rea sonable juror could have . . . declined to believe Ow en s felt any
threat from Heath ba sed upo n him stoppin g by her house after May 1 7.” “[ I ]t is not enough that the jury m ay d isbelieve crucial evidence pertaining to the greater offense, bu t r a ther th ere must be some evidence directly germane to the lesse r - in cluded offense for the find e r o f fact to18

consider before an instru ction on a les ser - included offense is warranted.” R ansi er v. State , 670 S.W.3d 646, 650 (Tex. Crim. App. 2023) (alteration in orig inal ) (quoting Bullock v. State , 509 S.W.3d 921, 925 (T ex
. Crim. App. 2016) ). 6 In this ca se , we find that th ere was no affirmative
evi dence from any source suggesti ng that He a t h committed harassing acts only on one date. S ee Coalwell v. State , No

. 04

- 16

- 0035 8

- CR, 2017 WL 4014707, at *5 (Tex. App.

— San Antonio
S ep t. 13, 2017 , no pet.) ( mem. op. , not designated fo r publication) (“ That the jury might have believed only a single i n c ident of harassment occurred is not affirmative evidence that the
haras s ing [te x ts] were sent, not on multiple dates, but on only one d a te .” )

. Also, Heath points to

no evidence from which a rat ional jury could find that he was not acting pursuant t o the s ame scheme or course of conduct that was directed at Owens.
Bec ause n ot hing s howe d that , if Heath were guilty, he was only guilty of h ar assme nt , we find that Heat h was not entitled to the lesser

- included

- offense instruction. Accordingly, we
overrule his l ast point of error.

6 Moreover, the question is whether Owens felt t hreat ened or harass ed, annoyed , or alarmed. Owe ns testified th at she felt “unea sy” around Heath, including when he came to h er h ouse on May 31 without a n invitation. Owens said th at , on that date, Heath “was pretty animated , ” and she told him , “ Y ou ca n’t be here

. ” She f urther testified that, since that day, s he was “not o n gu ard as much.” At the very least, the evidence show ed t hat Owe ns was annoyed or alarmed by Hea th’s presence on May 31.19

IV. Disposition
We affirm the trial c ourt’s jud gmen t.

Jeff Rambin Justice
Date Submitted: May 21 , 20 2 4 Da te Decided: June 14 , 2024
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