## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 21

- 00050

- CR

JASON DEAN CRAVEY , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 124th District Court Gregg County, Texas Trial Court No. 47888

- B

Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Justice Stevens2 

### ME MORANDUM OPINION
A Gregg C ounty j ury found Jason Dean Cravey g uilty of continuous dating violence , a third

- degree felony

. See T EX
. P ENAL C ODE A NN
. § 25.11(e) (Supp

. ) . A fter a punishment trial to the bench, the trial court sentence d Cravey to eight years ’ imprisonment and ordered him to pay a $500 .00 fine and court costs but suspended the sentence in favor of placing Cravey on community supervision for eight years

. O n appea l , Cravey argues that (1) a portion of the statute of offense violated the constitutional and statu tory requirements of a unanimous jury verdict in felony cases , (2) he was entitled to the lesser

- included

- offense instruction of assault family violence , ( 3 ) his motion for mistrial based on the victim’s testimony of Cravey’s drug use should have been granted , ( 4 ) the trial court erred by limiting cross

- examination o f the victim ’ s prior history of violent conduct , and (5) several fees were improperly assessed

. We find that Cravey failed to preserve his first issue for our review. We also find that Cravey was not entitled to a lesser

- included

- offense instruction , the trial court did not abuse its discretion by overruling Cravey’s motion for a mistrial , Cra v ey ’ s complaint about the limitation of his cross

- examination of the victim does not comport with the argument that he made at trial, and the Crime Stoppers fee was properly assessed

. However, because we agree that the sheriff fees must be reduced and th e ti me pa y ment fee eliminated, we modify the trial court’s judgment and bill of costs to reflect sheriff fees of $75.00 and by deleting the time payment fee. A s modified , we affirm the trial court ’ s judgment.3

I. Cravey Failed to Preserve His Fir s t Point of Er ror T h e relevant portions of Section 25.11(a) provide that a person commits continu ous violence against the family “ if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes ” i ntentional, k nowing, or reckless bodily injury against a person with whom the actor has or has had a dating relationship

. T EX
. P ENAL C ODE A NN
. § 25.11(a) (Supp

. ) (citing T EX
. F AM
. C ODE A NN
. § 71.0021(a)(1)(A) ; T EX
. P ENAL C ODE A NN
. § 22.01(a)(1) (Supp.) ) . Section 25.1 1(b) st ates: If the jury is the trier of fact, members of the jury are not required to agree unanimously on the specific conduct in which the defendant engaged that constituted an offense under Sect ion 22.01(a)(1) against the person or perso ns described by Subsec tion ( a), the exact date when that conduct occurred, or the county in which each instance of the conduct occurred. The jury must agree unanimously that the defendant, during a period that is 12 months or less in duration, two or more times engaged in condu ct tha t constituted an offense [of assault] under Section 22.01(a)(1) against the person or persons described by Subsection (a).
T EX
. P ENAL C ODE A NN
. § 25.11(b) (Supp.) . Cravey argues that Section 25.11(b) violate s the

c onstitution al and statutor y requir ements of a un animous jury verdict in felony cases. The S tate argues that Cravey has failed to preserve this issue for our review

.

“ As a prerequisite to presenting a complaint for appellat e review, the record must show that” it “wa s made to the t rial cou rt by a timely request, objection, or motion tha t

. . . stated the grounds for the ruling

. . . with sufficient specificity to make the trial co urt aware of the complaint, unless the specifi c grounds were apparent from the context ” a nd that either the tria l court “ruled on the request, objection, or motion, either expressly or implicitly , ” or “refused to rule on the request, objection, or motion, a nd the complaining party objected to the refu sal.”4

T EX
. R. A PP
. P. 33.1(a). “Even const i tutional error s may be waived by failure to object at trial.”
Minter v. State , 570 S.W.3d 941, 943 (Tex. App.

— Texarkana 2019 , no pet.) (quoting Briggs v. State , 789 S. W.2d 918, 924 (Tex. Crim. App. 1990 )).

“ The Texas Court of Criminal Appeals has held t h at a facial ch allenge t o the constitutionality of a statute falls within those rights that can be forfeited if not preserved at trial. ” Id. at 943

– 44 (citing Karenev v. State , 281 S.W.3d 428, 434 (Tex. Crim. App . 2009 ) )

.

“ Likewise, the Court of Criminal Appeals has he ld that ‘ [a]s applied ’ constitutional claims are subject to the preservation requirement and therefore must be objected to at the trial court in order to preserve error. ’ ” Id. at 944 (quoting Reyno lds v. State , 423 S.W.3d 377, 383 (Tex. Cri m . App. 2014) ( citing Fl ores v. State , 245 S.W.3d 432, 437 n.14 (Tex. Crim. App. 2008); Curry v. State , 910 S.W.2d 490, 496 & n.2 (Tex. Crim. App. 1995)).
Becau se our review of the record shows that Cravey failed to raise his constitutional complaint with the trial cour t, we ove rrule Cravey’ s first point of error as un preserved

. II. Cra vey W as N ot E ntitled to a L esser - I ncluded - O ffense I nstruction In his second point of error , Cravey argues that the trial court erred by denying his request for t he lesser

- included

- offens e instruc tion of assault family violence. “Our review of whether an instruction on a lesser

- included offense should be gi ven . . . involves a two

- step determination.” Shepherd v. State , 489 S.W.3d 559, 575

– 76 (Tex. App.

— T exarkana 2016, pe t. ref ’ d) (citin g Cavazos v. State , 382 S.W.3d 377, 382

– 83 (Tex . Crim. App. 2012); Feldman v. State , 71 S.W.3d 738, 750 (Tex. Crim. App. 2002 ) , superseded on ot her grounds by statute , T EX
. C ODE C RIM
. P ROC
. A NN
. art. 37.071 , a s recognized by Coleman v. State , No. AP

- 75 ,47 8 , 20095

WL 4696064 (Tex. Crim. App. Dec

. 9 , 2009) (per curiam) (not designated for publi cation) ; Car son v. State , 422 S.W.3d 733, 746 (Tex. App.

— Texarkana 2013, pet. ref ’ d)). “First, we determine whether ‘the proof necessary to esta blish the charged of fen s e also includes the lesser offense.’” Id

. at 576 (quoting Cavazos , 382 S.W.3d at 382 (citing Hall v. State , 225 S.W.3d 524, 535

– 36 (Tex. Crim. App. 2007); Feldman , 71 S.W.3d at 750; Carson , 422 S.W.3d at 746) ). Here, because the s tatutory definition of c o ntinuous family violence is comprised of the

c ommission of two or more incidents of family violence assault , we conclude that family violence assault is a lesser

- included offense of continuou s family violence

. See T EX
. P ENAL C ODE A NN
. § 25.11(e) ; see al s o Kemp v. State , No. 12

- 18

- 00030

- CR, 2 018 WL 4767181, at *2 (Tex. App.

— Tyler Oct. 3, 2018 , no pet. ) (mem. op., not designated for publication) (citing
Casanova v. State , No. 13

- 14

- 001 45

- CR, 20 16 WL 1072620, at *5 (Tex. App.

— Corpus Chri sti
Mar . 17, 2016 , n o pet. ) (mem. op., not designated for p ublication) ) (concluding that family violence assault is a lesser

- included offense of continuous viole nce against the family )

. 1
We next “ determine ‘whether there is some evidence that would permit a rational jury t o find that, if the [defendant] is guil ty, he is guilty onl y of the lesser offense.’” Shephe rd , 489 S.W.3d at 576 (alteration in original) (quoting Cavazos , 382 S.W.3d at 383 ) (citing Feldman , 71 S.W.3d at 750; Carson , 422 S.W.3d at 7 46). “This second in q u iry is a fact questi on based on the

e vidence admitted at trial and requires that there be some evidence that would allow a rational jury to acquit the defendant of the greater charge and convict him of the lesser

- included offense.”

1 “Although unpublished cases h a ve no pre cedent ial value, we may take guidance from them ‘as an aid in develop ing reas oning that may be employed.’” Rhymes v. St ate , 536 S.W.3d 85, 99 n.9 (Tex. App.

— Texarkana 2017, pet

. ref’ d) (quoting Carrillo v. State , 98 S.W.3d 789, 794 (Tex. App.

— Am a rillo 200 3, pet . ref’d)).6

Id

. (ci ting Cavazos , 3 8 2 S.W.3 d at 383; Fel dman , 71 S.W.3d a t 750

– 51). “The instruction m ust be given if there is evidence from any source, regardless of whether it is weak, impeached, or contradicted, that raises a fa ct issue of whether he is guilty only of the lesser offens e . ” Id

. (alteration i n original ) (citi ng Cavazos , 382 S.W.3d at 383; Carson , 422 S.W.3d at 746). “To determine whether there is some evidence raising an issue, we consider it in the context of the entire record.” Id

. (citing Carson , 422 S.W.3d at 746

– 47 ; Cavazos , 382 S.W.3d at 384

– 85). Kyle McBride, an officer with the Longview Police Department (LPD) , testified that he was dispatched to the scene of a domestic disturbance on July 13, 2017 , where he found the victim with a bruised a nd slightly swollen l e f t eye

. McBride said that C ravey had f l ed the scene

. According to McBride, the victim , who had “ grab marks ” and “ scratch marks , ” said that Cravey had “ forcefully grabbed her and tried to put her into his truck .” Photo s of her injuri es were shown to th e j ury . Konrad Roberts , another LPD o f ficer , testified that h e responded to a family violence call on July 23, 2017, and observed the victim with injuries to her nose and mout h and blood on her fac e, che st, and shirt. Roberts sa i d t hat he immedi ately as s umed she had been assaulted and took
p h otos of her injuries that were admitted into evidence. According to Roberts, the victim said that Cravey had knocked her down in the m iddle of the street a nd kicked her in the face afte r she had ref used to get in hi s truck. Cra vey had again fled the sce n e . The victim ’ s daug hter, who was a minor at the time of the incident, testified that the victim came home covered in blood

. Jason H ampton, an o fficer w ith the LPD, res p onded to “ an active assaul t

- in

- progress

c all ” on October 5, 2017. Hampton saw tha t Cravey was throwing objects at the victim, who7

was “ hysterical, crying, ” and had a swollen n ose and ripped shirt. According to Hampto n, the victim said Cr avey had headbutted her in the nose and thr ew her against a w a ll, causing her to hit the back of he r head. Hampton testi fied that the victim ’ s injuries to her head, nose, le ft hand, and shins were consistent with her version of events and that Cravey admi tted to headbutt ing her. Phot o s of th o se i njuries were sh own to the jury. The victim testified t hat Cravey became “agg ressive” and “scary” during an argument on July 13 , 2017

. She said that Cravey grabbed her throat ; pu shed her head in t o the dashbo ard of his truck , injuring her nose ; a nd pulled her hair

. A fte r the victim an d Cravey made up, Crave y picked her up on July 23, 2017, and bought her a beer. The victim said that t he two began arguing ab out the July 13 incident and that Cravey grabbed her by the throat, slammed her head into the dashboard, pulled her hair , kicked her out of his truck int o the road, an d got out of his truck to kick her again

. Despite that incident, the v ictim continued to date Crave y. On October 5, 2017, after the two had moved in together, the victim said th at she and Cravey go t i n to another argument where he placed h i s hands on he r throat and pushed her head “through the back door” with such force th at her head punched a hole in it. The victim testified that she had tri ed to fight back but that Cravey did not stop assaulting h er u ntil police officers arrived on the s c ene . The victim’s mino r daughter was at home during the incident and te stified that she heard the argument and t hat fights between her mother and Cravey ha ppene d frequently. Cravey does not challenge his involv eme n t in the October 5 incident, but he argues in his b rief that there is evidence that he is guilty of only one assault because the victim “was the only witness to the assaults alleged to have occu rred o n Jul y 13 th and July 23 rd , and her testimony8

regarding t h ose assaults was radically inconsistent w it h her initial statement s to police.” Cravey’s argument refer s to the fact that the victim , who was ashamed of he r continued relationship w ith him , did not want her children to know that she was still dating him i n July. As a result, the victim ’s initia l statements falsely stat ed that she came to be in Cravey’s pre sence fortuitously instead of voluntarily. Even so, McBride and Roberts both testified that th e vic tim identified Cravey as the aggressor at the time o f the incidents, her identification of Cr av ey as the aggressor at trial was not refuted by evidence, and her injuries from both July incidents were well doc umented and shown to the j ury. From our revie w of the record, we conclude that there is no evid e nce indicating that , if Cravey is guilty , he is guilty of only one i ncident of family violence assault. A s a result, we find that Cravey was not entitled to the lesser

- included

- offense instr uction. See C asanova v. State , No. 13

- 14

- 00145

- CR, 2016 WL 10 7 2 6 20, at * 6 (Tex. App.

— Corpus Christi Mar . 17, 2016 , no pet. ) (mem. op ., not designated for publication) . We overrule Cravey’s second point of error.
II I . T he T rial C ourt D id N ot A buse I ts D i scretion by O v erruling t he M otion for M istrial During trial, t h e victim testified that she resumed her relat ionship with Cravey afte r he

a bused her

. When asked why, she testified , “ He would tell me he was change d

-- he would change, he would stop doing t he drugs, he w ould .” Cra vey immediately objected and, a fter a d i scussion at the bench , the trial cour t instructed the jur y to “ disregard the

. . . statement by the witness .” Cravey moved for a mistri al , but it was denied, and the victim ’s tes timony resumed

. On appeal, Cravey argues that the trial court abus e d its di s cretion by overruling his motion for a mistrial

.9

“A trial cour t ’ s denial of a mistrial is reviewed under an abuse of discretion standard and must be upheld if within the zone of r easonable disagreem e nt.” Hollaway v. State , 446 S.W.3d 847, 855 (T e x. App.

— T exarkana 2014, no pet

. ) (quoting Broo ks v. State , 420 S.W.3d 3 37, 340 (Tex. App.

— Texarkana 2014, no pet.) (citing Coble v. State , 330 S. W.3d 253, 292 (Tex. Crim. App. 2010)).

“ An instruction to di sregard attempts to cure any harm or prejudice r esulting from events that have already oc curre d. ” Young v. State , 137 S.W.3d 65, 69 (Tex. Crim. App. 2004).

“ Where the prejudice is curable, an instruction eliminates the need for a mist ria l, thereby

conser ving the resources associated with beginning th e trial p r ocess anew. ” Id. “ Like an inst ructi on to disregard, a mistri al serves a corrective function. However, the class of events that requir e a mistrial is smaller than that for which a sustained objecti on or an instruction to disregard will suffice t o preven t or correct the harm. ” Id. “ A grant of a motion for mistrial should be reserved for those cases in which an objection could not have p revented, and an instruction to disregard c oul d not cure, the p rejudice stemming from an event at trial

— i.e., w here

an i nstruction would not leave the j ury i n an acceptable state to continue the trial. ” Id.

“ Only in extreme circumstances, where the preju dice is incurable, will a mistrial be requi re d. ” Hollaway , 446 S.W.3d at 855 (quoting Archie v. State , 221 S. W .3d 695, 699 (Tex. Crim. App. 2007) (quot ing H awkin s v. State , 135 S.W. 3d 72, 77 (Tex. Crim. App. 2004) ) ). “ In other words, we must determine wh ether the given instruction to disregard co u ld not cure the
pre judice from the State ’ s improper question. ” Id

. A mong o ther things, we consider the nat ure

o f the error, the persiste nce of the prosecution in committing the error, the flagrancy of the10

viola tion, the instruction given by the trial co urt, and the weight of the incriminating evidence. Waldo v. State , 746 S.W. 2 d 750, 754 (Tex. Crim. A pp. 1988 ).
In this case, the victim’s testimony was not a direct response to the State’s question , and the refer ence to Cravey’s drug use had little , if an y , material relev ance to the charged offense.
T he trial court inst r ucted th e jury that it was to disr egard t he ev idence , and w e presume that the jury followed this instruction. See Hollaway , 446 S.W.3d at 856 (c iting Ladd v. State , 3 S.W.3d 547, 567 (Tex

. Crim. App. 1999) ; Sharper v. State , 22 S.W.3d 557, 558

– 59 (Tex. A p p.

— Texar k ana 2000, no pet.) ); see also Hi noj os a v. State , 4 S.W.3d 240, 253 (T ex. Crim. App. 1999). T he State did not refer to Cravey’s drug use in any way during the remainder of trial o r its closing argument. Cravey does not argue that the State faile d to pres e nt sufficient evidence to
suppor t Cr a vey’s convict ion , which was suppo rted by the evidence recited above

. C onsider ing the totality of the circumstances, the trial court could ha ve reasonably concluded that the victim’s blurted

- out, nonresponsiv e remark a bout drug use was not so inflamm atory as to be inc urable by an instruc tion to disregard. As a result, we find no abuse of discretion i n the trial court’s denial of Cravey’s moti on for a mistrial. We ov errule Cravey’s third point of error. IV. C ravey’s A ppellate Comp laint About the Lim itati on of Cross
- Ex amination Does Not C omport w ith the Argument at Trial During cross

- examination, t he victim t estified that she consumed alcoh ol and had only been in t rouble for driving while intoxicated. The r ecord ne x t revealed an unrecorded confere nce a t the bench du ring which the trial court purportedly ruled to limit the scope of Cravey’s cross - ex amination of the victim

. Cravey submit ted a bi ll review stating that , h ad he11

been permitted to do so , he would have que s tione d the victim about her methamphetamine us e, wh ich had resulted in a re vocation of her community supervision , in addition to her alcoho l use

. Cravey a lso wanted to admit evidenc e that the victim (1) was c onvic ted of aggravated assault with a deadl y w eapon in 1999 , (2) was convicted of family vio lence assault for beatin g her ex

husband in 2001 , (3) was convicted of criminal m ischief for hitting his car, (4) assault ed a hotel clerk in 2014 as a result of her int oxication , (5) admitted to a pea c e officer that she had road
rage , and (6) made several comme nts on Facebook showing that she wa s “ okay with domesti c violence and distur bing the peace and aggravated assault with a deadly weapon .” At trial, Cravey argued t hat he wished to admit this evid e nce solel y “ to show her character for propensity for vi olenc e and conformity with th at character .” 2
F or the first time on appeal, Crav ey argues that he should have been allo wed to admit the evidence to impeach the v ictim ’ s character for truthfulness and to correc t the impression left by the victim that she w as no n violent. The State contends that this argument is waived, and we
agree . A “point of error on appeal must comport with the objection [or argument] made at trial.” Wilson v. State , 71 S. W.3d 34 6 , 349 (Te x. Cr im. App. 2002); see Swain v. State , 181 S .W.3d 359, 368 (Tex. Crim. App. 200 5). “[A] complaint is not preserved for a ppeal unless it was made to the trial court ‘by a timely request

. . . ’ that ‘stated the grounds for the ruling that the

co m plaining party sought from the trial court with suffici ent s p e cificity to make the trial c ourt aware of the complaint, unless the sp ecific grounds were apparent from the conte xt. ” Resendez
v. State , 306 S.W.3d 308 (T ex. Crim. App. 2009) (quoting T EX
. R. A PP
. P. 33 .1(a) (1)(A)). The

2 Crave y does not raise or brie f thi s argument on app eal.12

party must “let the trial j udge know what he wants , why he th inks himself entitled to it, and do so clea rly enough for the judge to understand him at a time when the trial court is in a pro per position to do something about i t. ” Id

. at 31 3 ( quoting Lankston v. State , 827 S.W.2d 907 , 909 (Tex. Crim. App. 1992)).
B ecause the arguments made in Cravey’s brief do not comport with the ones he raised at trial , he has failed to preserve his compl aint that the evidence should have bee n admitted to i mpeach the victim ’ s character for truthfu l ness or to correct any impression of her nonviolence

. A s a result, we overr

ule Cravey’s fourth point of error. V. Wh ile the Crime Stoppers Fee Was Proper, the Sheriff Fee s Should Be $75.00 , and th e Time Pay ment Fee Should Be Deleted The clerk’s bill of co st includes a $50 .00 Crime Sto ppers fee , $225 .00 in sheriff fees , and

a $15 .00 time payment fee

. On appeal, Cravey argues that the Crime Stopper fee is alr eady included in the consolidated court costs, bu t the State argues that the fee is separately autho rized as an additional conditi on of community supervision. Cravey also argues that the record only supports s herif

f fee s of $75.00 and that the time payment fe e must be deleted, and the State

co n cedes bot h iss ues. Section 133. 102 of the Texas Local Gove rnment Code sets th e rate for consolidated court costs and allocates a p ercentage to the “crime stoppers assistance account” and “compensation to victims of cri me account.” T EX
. L OC
. G OV ’ T C ODE A NN
. § 133 .102( e)(1), (8). As a r esult, Cravey argues t hat t he inclusion of a s eparate Crime Stopper fee is duplicative and should b e removed. Here, t he C rime S topp er fee was specifically included in the terms and condi tions of Cravey’s community supervi s ion

. Con ditio ns of community sup ervision may require a13

defe ndant to “pay a fin e in an amount not to exceed $50 to a crime stoppers organization.” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 42A.301 (b) (19) (Supp.)

. Because the sep arate assessment of the C rime S topp e r fee is a fin e authorized as a c ondition of Cravey’s c ommun ity supervision, we overrule this issue. See De ese v. State , No. 11

- 20

- 00056

- CR, 2021 WL 2 964517, at *1 (Tex. App.

— Eastland July 15, 2021, no pet.) ( per curiam) (mem. op., not designated for pub l ication). 3
Even so, we sustain Cravey’s arguments about the s heriff fee s and time payment fee. “We have the authority to modify the judgment to make th e record speak the truth.” Minter v. State , 570 S.W.3d 94 1, 944 (Tex. App.

— Texarkana 2019, no pet.) (c i ting T EX
. R. A P P
. P. 3.2(b);
F rench v. State , 830 S.W.2d 607, 609 (Tex. Crim . App. 1992); Rhoten v. State , 29 9 S.W.3d 349, 356 (Tex. App.

— Texarkana 2009 , no pet.)). As the State concedes, the record only suppo rts sheriff fee s of $75.00. As a result, we m odify the bill of costs and ju dgment accordi ngly.
Next , the time payment f ee must be deleted. The Texas Co urt of Criminal Appeals has recently conclu ded that a time payment fee like the one imposed here “mu st indeed be struck for being prematurely asse s sed becau se a d efendant ’ s appe al suspends th e duty to pa y cou rt costs and th erefore suspends the running of the clock for the purposes of the time paym ent fee.” Dulin
v. State , 620 S.W.3d 129, 129 (Tex. Crim. App. 2021). “As a consequence, even now,

ass e ssment of the t ime payment fee in this case would be pre matur e because appel late proceedings are still pendi ng.” Id

. Pursuant to Dulin , we strike the time payment fee “in [its] entirety, without prejudice t o [it] being assessed later if, more than 30 da y s after t he iss uance of

3 See supra note 1.14

the ap pellate mandat e, the defen dant has failed to c ompletely pay any fine, court co sts, or restitution” owed. Id

. at 133. VI. Conclusion We modify the bill of costs and judgment by reducing the sheriff fees from $225.00 to $75. 0 0 and b y deleti ng the imposition o f a time payment fee. As m odified, we affirm the trial court’s judgment.

Scott E. Stevens Justice Date Submitted: October 11 , 202 1 Date Decided : November 12 , 202 1 Do Not Publish