## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 21

- 00195

- CR

___________________________

On Appeal from County Criminal Court No. 5 Tarrant County, Texas Trial Court No. 1644138 Before Sudderth, C.J.; Birdwell and Bassel, JJ.

M emorandum Opinion by Justice Birdwell 

### C HRISTOPHER 

### G ADSDEN 

### , Appellant
V 

### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION A jury f ound Appel lant Christopher Gad sden guilty of assault causing bodily injury

. Following the jury ’ s verdict, the trial court made a finding of f amily violence and sentenced Gadsde n to 250 day s in jail an d a $500 f ine

. The trial court suspe nded imposit ion o f impr isonment and placed Gadsd en on probation for twenty months. Gadsden now appeals his conviction. In two point s of error , Gadsden contends t he trial court abused its discretion by (1) admitting extraneous

- offense evidence a s relationsh ip evidence under Ar ti cle 38.371 , se e Tex . Code Crim. Proc. Ann. a rt. 38.371, because the evidence did not comply with Rules 404(b) and 403 , s ee Tex. R. Evid. 40 3, 404(b) , and (2) admitting exp ert testimony and exhibits related to the dynamics of domestic violence because the evidence was no t suf ficiently tie d to the facts of the case to be relevant to aid in the jury ’ s decision , s ee Tex . R. Evid. 702. We hold tha t the trial court did not abuse its discr etion by admitt ing the challeng ed evidence or by allowing the e xpert testimony and e x hibits; we therefore affirm the trial court ’ s judgment. I. Background 1 On No v ember 5, 20 19, Gadsden ’ s wi fe, Heidi , 2 drove Gadsden to the Dallas

– Fort Worth airport for his flight to Me xic o. Gadsden a nd Heidi ’ s adopted d aughter,

1 Because Gadsd en does not c hallenge the suffici ency of the evi dence to sup port h is conviction, we o mi t a more detailed factual back gro und a nd will set for th additional fact s as necessary in our discussion.

2 Aliases have been used for Gadsden’s wife and their minor child. See Tex. R.3 Gia , was also in the vehicle. Th at morning, Gadsden, Heidi , and Gia left the ir house before su n rise ; it was dark and had been raining. As they entere d the air port premises , there was a ph ysical alter cat ion in the vehi c le between Heidi and Gadsden

. Heidi later filed a police report alleging that Ga dsden ha d assaulted he r . When he returned from his trip to Mexico, Gadsden was arrested at the airpor t and charged w ith family

viole nce assault

. At Gadsden ’ s trial, Heidi ’ s and Gadsden ’ s testimonies regarding the assault contradicted ea ch othe r . Heidi te s ti fied that on the morning she drove Gadsden to the airport, it had been dark and raining , and she had to drive t hro ugh busy tra ffic and road

c o nstruction

. Because of the dangerous driving conditions, Heidi drove cautiously

. As they entered the airport ’ s toll road , Heidi pulled up to a toll bo oth to ret rieve a ticket , and in doing so, she “ slig htly scratch ed ” the driver ’ s s i de mirror of the vehicle

. Gadsden then began punching Heidi in her right arm , c ursing at her, and call i ng her stupid

. Heidi testi fied that Gadsden hit her several times. Heidi then dropped Gadsden off at the term ina l, and as he le f t the vehicle, he to ld Heidi that he neve r wanted to see her again and that Gia could “ go to hell

. ” G a dsde n , on the other hand, testi fied that Heidi ha d been upset with him that morning because she did not want him to go back t o M exico

. Gadsden described Heidi ’ s demea nor as “ very a ngry. ” On the way to the airport, Heidi began speedi n g,

w eaving in and out of traffic, accelerating suddenly , and slamming on the brakes to App. P. 9.10(a)(3) ; McClendon v. State , 643 S .W.2d 936, 936 n.1 (Tex. Cr im. App. [Panel Op.] 1982)

.4 “ spite ” h im

. Gadsden to ld Heidi to slow d o wn several times. As they appro ached the airport toll booth, Heidi slammed on the brakes , and in the p r ocess, the driver ’ s side mirror hit the co ncrete post. When Heidi struck the toll booth, Gadsden r e ac hed o ver and “ g r abbed ” her arm and told her to slow down because she was “ going to kill [them]. ” Gadsden testi fied that he never hi t or punc h ed Heidi but that it was “ quite p ossible ” he could have bruised her arm when he reached o ver to grab h e r because she “ ha s always bru ised very easily

. ” 3 He also testified that Heidi had hit him as he got

ou t of the car at the terminal. Heidi “ snickered ” at Gadsden and tol d him that he was going to g o to jail and tha t she would g et cus tod y of Gi a. The State gave notice that it intended to introduce ev idence at trial to show the relationship between Heidi and Gadsden , i ncluding Heidi ’ s t estimony that Gadsden (1) had been controlling Heidi through out the relationship ; (2 ) had i so l ated h er f rom her friends and family; (3) had physically abused her several times throughout the relationship ; ( 4 ) had choked her ; ( 5 ) had pu nc h ed her ; ( 6 ) had pu shed her down the stairs ; ( 7 ) had forced her to perform se x ual acts ; ( 8 ) had threate ned her w i th imm i gration consequences involving their daughter, who they were adopting from Me xico ; ( 9 ) had sent harassing message s to Heidi ; and (10) ha d threatened to kil l Heidi

. The State also sought to introduce evidence t hat the ph y sica l vi o lence had increased in severity or fr equency in the year before the Nove mber 5, 2019 assault and

3 During Heidi ’ s testimony , the State entere d photos of Heidi ’ s bruis es into evidence. Heidi testifi ed that dur ing the week following the assault, she had taken those photos of her arm
— where Gadsden had punch ed her

— that show the pro gression of her bru ising

.5 that Gadsden had physically assault ed Gia on a t least one oc casion when he slapped he r in the face. At trial, Gadsden object ed to the admissi on of the e viden ce under Rules 403 and 404( b). The trial court determined that under Article 38.371(b) , e v idence of the nature of the relatio nship between Gadsden and H eidi was admissible and overrul ed Gadsden ’ s objection

. However , the trial court clari fied that Heidi could testi fy only about her r el a tionship with Gadsden and not about his relati onship with their daughter ; any testimony related to the allegat ion that G adsden had slapped Gia across the fac e w as inadmissible

. The trial court t hen issue d a limiting instruction in the writt en j ury charge: You are further charged that if there is any e vidence before you in this c ase tending to show that [G adsden] commi tted a crime, wrong, or act other than the offense alleged in the information, you cannot consider said evidence for any purpo se u nless you first find and believe beyond a reasonable dou bt that [Gadsden] committed sa id crime, wrong [,] o r act . If you find and believe beyond a reasonable doubt th at [Gads den] committed the crim e, wrong[,] or act , y ou may then c onsider the same i n determ ining the purpose for which it wa s introduced, namely, the nature o f the relatio nship of the parties, an d for no other purpose. In addition to the extraneous

- offen se evidence, the State sought to introd uc e the ex pert t estimony of Lacy Hensley regarding the dynamics of domestic violence

. When the State tender ed Hensley as an expert a t tria l, Gadsden objected under Rule 702 and argued that “ the dynamics of domestic vi olence ” was not a subject ma tter

re q uiring scient ific or te chnical knowledge for which a jury would need the a ssistance of an expert

. The trial court overruled th e objection and allowed the testimony

.6 Hensley testified generally about domestic violence and mor e specifi cally a bou t the cycle of violen ce , whic h des cribe s the three cyclic phases o f an abus ive relationship,

an d power and control , which explains th e differen t ways in w hich an abuser may maintain power and control o ver the ir victim

. To ai d in He ns ley ’ s t est imony, the State

o ffe red the power
- and

- control wheel and t he cyc le of violence as demonstrative exhibits , and Gadsden objected to rel evance and hearsay

. The trial cour t overruled the object ions and admitted both exhib its for d emonstr ati ve purpose s . I I. Discu ssion A. Standard of Review W e review the trial court ’ s admission of evidence for an abuse of discretion , and we will upho ld the trial court ’ s decision so long as it falls within the “ zone of reasonable disag reem ent ” and is cor rect under any th eory of law applicable to the

case. Beham v. State , 559 S .W.3d 474, 478 (Tex. Crim . App. 2018); Henley v. State , 493 S.W.3 d 77, 82

– 83 (Tex. Crim. App. 2016) ; Merrick v. State , 5 67 S.W.3d 359, 375 (Tex. App.

— Fort Worth 20 18, pet. ref ’ d

) ; Pe ttigrew v. State , No. 02

- 14

- 0 0494

- CR , 2016 WL 7405792, at *5 (Tex. A pp.
— Fort Worth Dec. 22, 2016, pet. ref ’ d

) ( mem. op., not designat ed for publication) . We also review a trial court ’ s ruling on an expert ’ s qualifications for an abuse o f discreti on. Rhomer v. State , 569 S. W.3d 66 4, 66 9 (Tex. Cri m. App. 2019); Rodgers v. State , 205 S.W.3d 525, 527

– 28 (Tex. Crim. App. 2006). We will uphol d the trial court ’ s cor rect decision under any applicable leg al theory even if the trial court gave a w rong or in complete reason for its rul ing. De L a P az v. State ,7 2 79 S.W.3d 336, 344 (Tex. Crim. App. 2009); Qualls v. State , 547 S.W.3d 663, 675 (Tex. App.

— Fort Worth 2018, pet. ref ’ d

). B. Admissibility of Evidence o f Extraneous Offenses In his first point of error , Gadsden compla ins about the tr ial court ’ s admissio n

o f the State ’ s evidence proffered under Article 38.371 of the Code o f Criminal Procedure. H e argues that the extraneous

- offense evidence was offered to show Gadsden ’ s character conformi ty in violati on o f Rule 404(b) and that the pr oba ti v e valu e of the ev ide nce was substantially outwei ghed by a risk of undue prejudice, conf using the issues, and m isleading the jury, in violation of Rule 403

. Se e Tex. R. Evi d. 403, 404(b)

. 1. The Extraneous
- Offen se Evidence At trial, the jur y heard e xtraneous

- offense evidence through Heidi ’ s testimony , who testified about her relati onship with Gadsden and his hi story of abuse. Heidi testified that she and Gadsde n go t marrie d in 2007 and that Gadsden beca me verbally abusive sho rtly th ereafter

. Specific al ly, Gadsden began yell ing and curs ing at Heidi in 2007, and he would “ twist things a round ” on her

. Heidi and Gadsden eventuall y decided to adopt a baby from Me xico , and when G ia was bo rn, Heidi began traveling back and fo rth to M e xico to be with Gi a . Whi le Heidi was in Me xico with Gia, Gadsden wou ld call Heidi to curse a t her and tell he r to come home to do his laundry. On one occasion when Heidi was home, Gadsden curse d at her and pushed her down
t he stair s while she was car rying a hamper of dirty laun dr y. On another occ asion when8 Heidi came home to surprise Gadsden, he becam e angry and slapped her across her cheek. Gadsden and Heidi eventuall y moved to Mexico together to be w ith Gia, and the abuse worsened

. Gadsden began drinking , and he would push , sho ve, and slap Heidi

. Heidi ultimately became Gadsden ’ s “ servant , ” and Gadsden would force her to perform sex ual acts she did not want to do and “ wear things ” she di d not wa n t to

wear. Heidi testified tha t , although she had considered leaving Gadsden while t hey live d i n Mexico, she stay ed with him because (1) he had threatened to report her to immigration services an d s ai d he would accuse her of k i dnapping Gia and (2) she had been a lone and felt she did no t ha ve any support . In Jul y 2019, Gadsden , Heidi , and Gia moved to Texas from Mexico, and Gadsden continued t o travel bac k and forth between Te xas and Mex ico for h is business. Heidi t e stified that t he a buse occurred even when G ads den was in Mexico. She de scribed Gadsden as contr olling ; he controlled her acce ss to fin ances , and s he always had to ask him for permissi on to use mo ney . While he was gone, he cont rolled h e r life through abu sive messages and abusive phone call s . When he wo u ld return from Mexico , h e woul d check the mileage on the vehicle he allowed he r to drive to see how far she had d riven while he was g one . During Heidi ’ s testimony , t he State entered evidence o f “ screen shots ” of messag es that Gadsd en had sent to Heidi vi a the texting applicat io n , WhatsApp. On Nove mber 17, 2019

— after the alleged ass ault

— Gadsden wrote9 Heidi answer the phone . . . . If y ou want [Gia ] to get he r paper a nswer or I swear t o [expletive] God I will c all the at tor ney tomorrow and tell them I d on ’ t want to cont inue with [Gia ’ s ] case and she will be deported

. . . . [ E ] ither y ou answer the phone [,] or it will be a very bad d ay for you tomorrow [

. ] After Heidi recei ved several missed phone calls from G adsden , Gadsd en threatened Heidi again: “ T here are goin g to be complicated and serious issues when I stop [Gia ’ s]

case [ . S ] he wil l be deported

. . . . [ I ] s that what you want? ” The next day, Gadsd en apologiz ed to Heidi : “ Look I ’ m really sorry an d was w ay out of lin e , and can ne ver be undon e, and I will pa y for it for the rest of my life [

. ] ” A few days later, after mor e missed phone calls, Gadsden told Heidi that th ey were both abusers : Wow re a lly so you ’ re throwing it all away? Oh and when you say “ abuse ” please check the Texas def[i]nition[.] I ’ ll email i t to you but it includes
“ willful destruction of property ” i e [s i c] the car mir ror[,] so I have a counter so we both are abusers [.] [W]hat do you think is goin g to happen to [Gia]? Heidi testi fied that she was not an abuser. She stated that to G a dsden, th e most i mportant thing in his life was his vehicle

. H eidi testified that befor e th e November 5, 2019 assault , she had not reported

an y o f Gadsden ’ s abus e to the police be cause he w ould threaten her and tell her that he would not complet e Gia ’ s adoption pr ocess , whi ch would prevent Gia from
ente ring th e United Sta tes. She decided to report the Nove mber 5, 2019 assault bec ause it was the fir st time Gadsden had hit he r in front of Gia, and she did not want Gia to grow up thi nking that kind of behavior w as acc ep table. But Heidi did not immediately call the police af ter the assa ult

. Sh e t estified t hat at firs t, she did not want10 to report it because she was “ very scared

. ” Heidi did not report t he as sau lt until that night

. 4 2 . Admissibili ty under Rul e 404(b) and Art icle 38.37 1 Rule 404(b) precludes the a dmission of evi d ence of a cri me , wro ng, or other a ct solely to prove a perso n ’ s character to sho w that he acted in conformity with that chara ct er on a particular occasion . Tex. R. Evid. 404(b). Howeve r , the eviden ce may be admitted for other purposes, “ suc h as proving mot ive , oppo rtun it y, in ten t, preparat ion, plan, knowledge, iden ti ty, absence of mistake, or lack of accident. ” Id.

“ Those listed p urposes ‘ are neither mutually exclusi ve nor collectiv ely exhaustive. ’ ” James v. State , 623 S.W.3d 533, 545 (Tex. App.

— Fort Worth 2021 , no pet. ) (quot ing De L a Paz , 279 S.W .3 d at 343 ) ; see also Garcia v. S tate , 201 S.W.3d 695, 703 (Tex. C rim. App. 2006 ) ( “ B ased on the clear language of the Rule, t his l ist i s not exhaustive

. ” )

. Indeed, Rule 404 (b) limits charac ter evid ence but is n evertheless a ru le of i nclusion. Tex. R. Evid . 404(b); De L a Paz , 279 S.W.3d a t 343; James , 623 S.W.3d a t 545

. Article 38.371 of the Code of Criminal Procedure provides anothe r non
character

- conformi ty purpose f or admitting extra neous
- offense evidence , w hich is evidence of “ all r elevant fact s and circumstances ” that may assist a trier of fact in a family

- violence prosecution

. Tex. C ode Crim . Proc. Ann. art. 38.371

. It expressly allows extraneous

- offen se e vidence regarding the nature of the rel ationship be tween

4 At trial, Heidi ’ s siste r testified t hat s he had seen th e bruises on Heidi ’ s arm when Heidi pick ed Gia up from her house that evening. She then tol d Heidi th at “ it was time. It was alr eady so many yea rs going through that stuff

. ” Heidi r eported the assault that night

.11 an accused and a c omplainant. Se e id. (allowing evidence to h elp determine “ whether the a ctor committed th e offen se . . . , i ncluding testimony or evidence re garding the

n ature of the relationshi p ” ); James , 623 S.W.3d at 545

– 46 (similar) ; F ranco v. S tate , No. 08

- 18

- 0 0040

- CR , 2020 WL 3168 560, at *8 (Tex. App.

— El P aso June 15, 2020, no pet.) (not designated for publicatio n) (“[T]h e Legislature has determined under [A] rticle 38.371 that the nature of the relationship itself is a pe rmissible, no n
characte r
- conformity purp ose for which evidenc e is admissible.” (citing Fe rnandez v. State , 597 S.W.3d 546, 564

– 66 (Tex. App.

— El Paso 2020 , pet. ref ’ d

)) ) ; Mourning v. State , No. 02

- 19

- 00168

- CR, 2 020 WL 6165309 , at * 5 (Tex. App.

— Fort Worth Oc t. 22, 2020 , no pet.) (mem. op. , not des ignated for publicati on ). Ex amples of admissible , extraneous

- offense evidence that complie s with Articl e 38.371 include evidenc e to rebut a defensive th eory, to explain wh y a victim of domestic violence is reluctant to testi f y , to prov ide context for an otherwi se isolated incident or outburst of violence, to describe the circumstances surrounding the relationship between the victim and the assailant at the time of the charged offense , or
to simply contextualize the nature of the relationship be tween the victim a nd the assailant. See Williams v. State , 3 01 S.W.3d 675, 687 (Tex. Crim. App. 2009) ; Garcia v. State , 201 S.W.3d at 704 ; Williams v. Sta te , No. 02

- 18

- 003 82

- CR, 2019 WL 2223214, at *3 (Tex. App.

— Fort Worth May 23, 2019, no p et.) (mem. op., not designated fo r publication ) ; Gonzal ez v. Sta te , 541 S.W.3d 306, 312 (Tex. App.

— Houston [1 4t h Dist.] 2017, no pet.)

. Notably, “ [w] hether extran eous [

- ]offense e vidence h as r elevance apart12 from character conform ity . . . is a question for t he trial court. ” Moses v . Stat e , 105 S.W.3d 622, 627 (Tex . Crim. A pp. 2003). Here, the trial court de termined that the ex traneous

- offense evid ence Gadsden complains of show ed t he n ature of his relationship wit h Heidi pursuant to Article 38.371(b)

. We conclude it was well within the zone of reason a ble disagreement for the trial court to have found in th is case that the complain ed

- of evidence was admissible for a non

- cha racter

- conformity purpose. Indeed, the extr aneous
- offense evidence provided a n explanation for Heidi ’ s failure to immediat ely report the November 5, 2019 assaul t , so the trial court could hav e reasonab ly concluded that evidence of Gads den ’ s past assaultive behavior was necessary for the jury to und erstand why Heidi was “ very afraid ” t o report the assa ult. See Williams , 2019 W L 2223214 , at *3 ( holding no abuse of d iscr etion when trial court all owed extra neo us
- offense evidence of defendant ’ s assault of the victim that ha d occurred more than ten years earlier , given victim ’ s reluc tance to tes tify against him ). The trial court cou ld have also concluded that the extraneous

- offense evi de nce w as ne cessary for the jury to understand the re lat ionsh ip between Ga dsden and Heidi , the circumstances surrounding th e ir relationship at the time of the assau lt , his motive for assau lting her on N ovember 5, 2019 , and his intent to commit the charged offense

. See id. Th e evide nce lik ewise could h ave been necessa ry to he lp the jury understand this otherwise isolate d incide nt or outburst of viole nce . See id.13 Further, during voir dire, defense c ounsel talked about the credi bility of witnesses and discussed when and to what extent a juror must believe a witness ’ s testimony

. G adsden then as serted

— in his opening s tatement, his c ase in chi ef, and hi s closing argument

— that he did not assau lt Heidi , as she ha d testifie d , b ut that he only gr abbed her to stop her reckless and dangerous d rivin g. Gadsden also cross
- examined Heidi on her alleged speeding and reckless driving , a nd he obt a ined a jury ch arge on
t he law of necess ity

. T hus, t he tr ial court could have re asonably concluded that Heidi ’ s testimony o f Ga dsden ’ s past a ssaultive con duct and the exhibits showing the
text me ssages Gadsden had sent to Heidi after the assaul t

— in which he threatened to ha ve th eir dau ghter deported, apo logized to Heidi , an d conceded that he was an abuse r
— w ere admissible to re but Gadsden ’ s theory of neces sity

. In addition, the trial court gave th e jury a li miting instruction r egardin g the
extra neous
- offense evidence

. “ Withou t evidence to the contrary, we must pres ume that the jury fol lowed the trial court ’ s instruction. ” Id. (citing Walker v. State , 300 S.W.3d 836, 850 (Tex. App.

— Fort Worth 2009, pet. ref ’ d))

. We therefore hold that the tr ial cour t did not a buse its discretion by admitt ing the extraneous

- offense evidence

. See Te x. Code Crim. Proc. A nn. art. 38.371(b) ; Tex. R. Evid. 404(b); James , 623 S.W.3d at 546 (holding evidence concer ning relationship betwee n accused and complainant was admi ssible) ; Mou rn ing , 2020 WL 6165309, at *4

– 5 ( “ The tria l court therefore did n ot abuse its dis cretion by allowing the ev idence

. . . as it was releva nt to expla inin g the nature of the[] relationship. ” ) ; Tran v . State , No.14 03

- 17

- 00155

- CR, 2018 WL 311846 4, at *3 (Tex. App

. — Austin June 26, 2018 , pet.

r ef ’ d

) (mem. op. , not designated for publication) ( “ We conclude t h at the trial court would no t have abused i ts discretion by admitting testimony about the 1994 arrest under Ru le 404(b) because the testimony wa s releva nt to the r elationship between [defendant] a nd his wife. ” )

. 3 . Admissibility under Rule 4 03 Within his first point of error , Gadsd en also argues that even if the extraneous

of fense evidence is admissible under Ru le 404(b), Rule 403 precludes its admissio n. Evidenc e admissible under R u le 404(b) may nevertheless be exclu ded under Rule 403

“ if i ts probative value is substantially outw eighed by a danger of one or more of the fol lowing: unfair pre j udice , confusing the issues, misl ea ding the jury, undue delay , or

ne edlessly presenting cumul a ti ve evidence. ” Tex. R . Evi d. 403. Ru le 403 generally favo rs the admiss ion of r elevant evidence, and there e xists a presumption that relevant evidence is more p r obati ve than prejudicial. Jones v. State , 944 S.W.2d 642, 652 (Tex. Crim. App. 1996); Mont gom e ry v. Stat e , 810 S.W.2d 372 , 389 (Tex. Crim. App. 199 1 ) (op . on reh ’ g)

. T o overcome this presumption, the par t y opposing admission of the evide nce must show that the probative va lue o f the eviden ce is substantially outweighed by the danger of unfair p reju dice or by the other dangers listed in Rule 403. Jame s , 623 S.W.3d at 547 ; Wells v. State , 558 S.W.3d 661, 669 ( Tex. App.

— Fort Worth 2017, pet. ref ’ d). Trial cour t s must conduct a bal an cing test when con sidering the admissibili ty of the evidence under Rule 403

. Gigliobianco v. State ,15 2 1 0 S.W.3d 637, 641

– 42 (Tex. Cr im. App. 2006) ; Mont gomery , 810 S.W.2d at 389. Thi s test requir es the trial co urt to consider (1 ) the i nherent probati ve force of the proffered evidence along with (2) the proponent ’ s need for tha t evidence , and balance those factors aga inst (3) any tenden cy of the evidence to su ggest a decision on an imp roper basis, ( 4) a n y tendency of t he evidence to con f use or distract the jury from
t he main issues, (5) any tendency that a jury that has no t b e en equipped to evaluate the probati ve force of the evidence wo uld give it undue w eight, an d (6) the likelihood
t hat presentati on of the evidence w ill consume an ino r dinate amount of time or merely repeat evidence already admitted. Gigliobianco , 2 1 0 S.W.3 d at 641

– 42 ; James , 623 S.W.3d at 547.

a. Probative Value and the State ’ s Need for the Evidence Probative value compares “ the inherent probative force of an item o f evidence

— that is, how str ongly it serves to make more or less probable the exi stence of a fa ct of c onse qu en ce to the litigation . . . with the proponent ’ s need for that item of evidence. ” Gigliobianco , 210 S.W.3d at 641. If the State ha s “ other compellin g or undisput ed evidence to e stabli sh ” what the extraneous

- offense evidence “ goes to prove , ” t he valu e of the evidence is much less. Id. (relying on Mon tg omery , 810 S.W. 2d at 390). Gadsden contends the probative value of the extraneous

- o ffense evidence was limited. Relying on James , he argues that the complai ned

- of evid ence d oes not have the same “ closeness in time ” or similarities to the charged offense a s that in James , 62316 S.W.3d at 547

. In James , we held that “ the timing o f the offenses [was] ke y ” becau se th e complain ed

- of evidence “ concern[ed] ac t s that occurred during a period of less than four months ” before James ’ s arrest and “ therefore had probativ e v alue as to his intent to commit the charge d offenses. ” Id. We also he ld that the evidence was probat ive of the nature of J a m e s ’ s abusive relat ion s hip with his victim , showing the patterns of abuse and the power and control that he had over her. Id. at 5 48. And it was probative to rebut the defensive theory of fabrication. I d. Here, the extraneous

- offens e evidence was probative of the na t u re of Gadsden ’ s abusive relationship with Heidi , showing the pa tterns of abuse and the power and control that h e had over her. See i d. While some o f the prior assaults and abuse certainly d id not o ccur “ during a period o f less than four months ” b ef or e Gadsden ’ s arrest , Heidi ’ s testimony indicated that the abuse worsened over the years , which continued when they moved bac k to Texas in 20 19

— just months before th is assault. And the e xhibits showing the messa ges Gadsden sent to Heidi after the November 5, 2019 assault indicated th at the abuse was ongoing. The complained

- of evidence helped the jury un derstand why Heidi did not imme diately repo r t the November 5, 2019 assault, why she ha d not reported any of Gadsden ’ s past abus iv e conduct, and why she had stayed with Gadsden

. See id. It also helped the jury unde rstand Gadsden ’ s motive and his intent to c ommit the as sault in this case, and it expla ined an otherwise isolated incident or outburst of violence.17 Additionally, the extraneous

- off ense evidence was probative to rebut Ga ds den ’ s d efensive theory that Gadsden did not punch Heidi , a s Heidi testified, but that he grabbed her out of necessity

. During vo ir dire, defense counsel ta lked about judgin g witness credibility and whether jurors mu st “ believe ev eryt hing that [a witnes s] say s on the witness sta nd. ” In the defense ’ s opening statement , defense

cou nsel indica ted that the case c ame down to the credibility of witnesses. H e told the jury that they would hear “ the rest of the sto ry ” from Ga dsden , which would ultimately show that Heidi had lied about the assault and about her own beha vior th at morning

. He con cede d that “ th ere was phy sical contact [and] pain ” but con tended that “ there was a reason

. ” He also told the jury that there was a reaso n G adsden had not been able to “ give his side of the story ” until trial. And Gadsden ob tained a jury charge on the law of necessity. Evidence of Gadsden ’ s prior a ssaults and abuse makes it less likely that Gadsden mere l y “ g rabbed ” Heidi out of necessity , i .e., to stop her alleged reckless and dangerous driving. See id. ; Foster v. S tate , No. 01

- 17

- 0053 7

- CR , 2018 WL 1914871, at *5 (Tex. App.

— Houston [ 1st Dist.] Apr. 24, 2018, pet. ref ’ d) (mem. op., not des ignated for publication); Mart in v. State , Nos. 02

- 07

- 309

- CR

– 02

- 07

- 31 6

- CR, 2008 W L 4831345, a t *12

– 13 (Tex. App.

— Fort Worth Nov. 6, 2008, pet. ref ’ d

) (mem. op., not designated for publication ). There fore, the extrane ous
- offense evidence showed t he jury th at it was less likely that Gad sden left bruises on Heid i out of necessity.18 For all these reasons, we hold th at the probative value of the e xtraneous

o ffense evidence was strong. See Upchurch v. Sta te , 656 S.W.3d 170, 179 (Tex. App.

— Fort Worth 202 2, no pet. ) ; James , 62 3 S.W.3d at 548; Foster , 2018 WL 1914871, a t *5; Martin , 2008 WL 4831345, at *12

– 13. In evaluati ng the State ’ s need for the evidence , “ we consider (1) whether the propo nent has other avail able evidence to establish the fact of conseq u ence that the evidence is relevant to show, (2) the strength of t he other evi dence, and (3) whether the fact of conseq uence is related to an issue that is in di spute. ” Upchurch , 656 S .W .3d at 179 (citing Erazo v. State , 144 S.W .3d 487, 495

– 96 (Tex. Crim. App. 2004) ). Here,
t he State had a strong need for the e xtraneous

- offense evidence because Heidi and Gia were the only witnesses to the charged offense, and Heidi ’ s credibility was implicitly at issue. See James , 623 S .W.3d at 5 48; Emich v. State , No. 02

- 1 8

- 00059

- CR , 2019 WL 311 153, a t *7 (Tex. App.

— Fort Worth Jan. 24, 2 019, pet. ref ’ d

) (mem. op.,

no t designated for publicat ion)

. Gadsden avers that the State should have called Gia

—his own daughter

— to testify as a witness

. However , Gadsden argued to the jury that Gia was a missing w itness and that the State ’ s failure to cal l her to testify created a presumption that, even if she had test ified, her testimony woul d not have helpe d the State ’ s case. T his argument impl ici t ly supported the State ’ s need for the extraneous

offen se e vidence. And as the State points out, Gia is the daughter shared by bo th Gadsden and Heidi

.19 Gadsden also asserts that the State did not have a great need for the
extraneous

- offense evidence beca use there was physical evidence of Heidi’s injuries. While it is true that the State presented photographs of Heidi’s bruises and that Heidi’s sister testified to seeing the bruises firsthand, Gadsden told the jury that the bruises were caused by his grabb ing her out of necessity. With the cause of Heidi’s “evident injuries” in dispute, the State had a strong need for the extraneous

- offense evidence, especially because Heidi’s credibility was at issue. See James , 623 S.W.3d at 548. Indeed, the State did not actually have “other compelling or undispu ted evidence to establish” what the extraneous

- offense evidence was offered to prove

— that is, the nature of Gadsden and Heidi’s relationship. See Gigliobianco , 210 S.W.3d at 641 (emphasis added); cf. Upchurch , 656 S.W.3d at 179

– 80 (distinguishing James , 52 3 S.W.3d at 548). These t wo factors weigh in favor of admission. b. Tendency of the Ev idence to Suggest a De cision on an Improper Basis Unfai r prejud ice “ refers to a te ndency to suggest [a] decision on an imprope r bas is, commonly, though not necessarily, an emotional one. ” Giglio bianco , 210 S.W.3d

a t 641. However, evidence is not excludabl e under Rule 403 if it is merely prejudicial,

as “ all ev idence a gainst a defendant is . . . design ed to be prejudicial. ” Pawlak v. S tate , 420 S.W.3d 807, 811 (Tex. Crim. App . 2013); see Tex. R. E vid. 403. Rule 403 is th us concerned with evidence that is un fairly prejudicial

. Pawlak , 420 S.W.3d at 811.20 Gadsden a rgues that the evidence was highly prejudicial. Specifically, he
conten ds the evidence that he threatened to end adoption p roceedings or to have Gia deported por trayed him as “ cruel and cold

- hearted , ” as well as the evidence of his controlling b ehavior and prior physical abuse, w hich w ould likely prevent the jury from evaluat ing the evidence “ dis passionately. ” “ Whe n the extraneous offense is no more he inous than the charged offense, evidenc e concerning the extraneous offense is unlike ly to cause unfair prej udice

. ” Norwood v. State , No. 03

- 13

- 00230

- CR , 2014 WL 40588 20, at *5 (T ex. App.

— Austin Aug . 15, 2014, pet. ref ’ d

) (mem. op., not designated for publi ca tion). T h e complained

- of evidence showed the na tu re of the relationship between Ga dsden and Heidi , includ ing the tactics he used to exert power and control over her

. That ev ide nce, while prejudici al, was not unfairly so. See James , 6 23 S.W.3d at 549; N orwood , 2014 WL 4058820, at *5 ; cf. Upchurch , 656 S.W .3d at 180 (holding factor wei ghe d in favor o f defendant when complained

- of e vidence involved

“ horrific ” and “ inf la mmatory ” fac ts related to aggravated assault by fire )

. Gadsden acknow ledges that e xtraneous

- offense evidence inherently carries the risk that a jury will c onvict on an improp er basis of character c onformity. W he n the evidence does tend to suggest a dec ision on an impr op er ba sis, a lim iting instruction

c an minimize the r i sk of the jury im properly relying on it in reaching its verdict. James , 623 S .W.3d at 549; Flores v. Sta te , No. 03

- 19

- 00489

- CR, 202 0 WL 3887976 , at *4 (Tex. App.

— Austin July 9, 2020, no pet.) (mem. op., not de signated for publication)

. Ga dsden argues , how e ver, that because the trial cour t did not give a limiting21 instruction w hen the evi dence came in, there w as a n enhanced risk that th e jury would consider the evidence as character

- conform ity evidence and give i t undue weight. H owever, Gadsden c ites no autho rity requiring the trial court to g ive the limiting instruction multiple times

. The trial co urt included a written limiting instruc tion in its jury charge. We presume that th e jury followed the tri al co urt ’ s limiting instructi on. See Thrift v. State , 176 S.W.3d 221, 224 (Tex. Crim. App. 2005); James , 623 S.W.3d a t 549. Gadsde n does not att empt to reb ut this presumption

. See Thrift , 17 6 S.W.3d at 22 4. Accordingly, we hol d that this third factor w ei gh s in favor of admission.

c. Tendency of the E vidence to Confu se or Mislead the Jury Confu sion of the issues alludes to the likel i hood that the evidenc e would confuse the jury or distract it from the case ’ s central issues. Gigliobian co , 210 S.W.3d at 641

. “ Evid ence that consumes an in ordinate amount o f time to present . . . might tend to confuse or distract the jury

. . . . ” I d. Misl eading the jury re fers to a tendency of an item of evidence to be given undue weight by the jury. Id. G adsden argues that the compl ained

- of evidence distra cted the jury from the

m ain issue. According to Gadsden, this was “ a simple he

- said, she

- said case, ” and the jury cou ld have determined “ whether to believ e [ Heid i ’ s] story that [Gadsden] punch ed her or Gadsden ’ s story th at he grabbe d her ” witho ut the complained

- of evi dence. The State contends th e evidence did not confuse or distract the jury but rather pr ovided a b etter picture of the c y cle of violenc e between Gad sden and Heidi , which hel ped to explain Heidi ’ s action s o n the day of t he ass ault. Furth er, t he22 evi dence consume d a large portion of Heidi ’ s testimony only because it was intertwined with the h ist ory o f Gadsden and Heidi ’ s marriage and Gia ’ s adopt ion. And the State argues that the e viden ce was not scientific or complex but in stead ca me in the form of Heidi ’ s testimony as a lay witness. We agree with the State. See Upchurch , 656 S.W.3d at 181; James , 623 S.W .3d at 5 50 ; E mich , 2019 WL 311153, at *7. Gadsden w as arraigned on the charges in the jury ’ s presence. The trial cou rt iss ue d a written limitin g instruction prescribing how the jury should use the
extraneous

- offense evidence, if a t all. Moreover, t he jury charge and ve rdict forms made clear th at the jury ’ s job was to det ermine whether Gadsden was guil ty or not guilty of the c harged offense. We ho ld that th ese factor s w eigh in favor of admission. d. Likelihood of Undue Delay and Needless Repetition This fact or f ocuses o n how efficient the trial is and not o n the risk of a n erroneous verdict. Gigliobianco , 210 S.W.3d at 6 41. He idi was the only w itn ess to testify to the extraneous

- offense evidence , and the length of the testimony was related to the his tory of G adsden and H eidi ’ s marriage and Gi a ’ s adoption

. Mo r eover, Gadsden conced e s that this factor does not weigh against admiss ibility of the eviden ce or that it does so only slightly. We agree. e. Resolution Balancing all six factors, w e hold th at the trial court did not abuse its discretion by dete rmining th at the probative value of the extraneous

- offense e vidence was not subst antial ly out weigh ed by the risk of “ unfair prejudice, confusing the issues,23 mislea ding the jury, undue delay, o r needles sly presenting cumulative e vidence

. ” Tex. R. Evid. 403; see James , 623 S.W.3d at 5 51 ; Flores , 2020 WL 3887976, at *5. All the Gigliobian co fac tors favor admission of the extraneous

- offense evidence

. Se e 210 S.W.3d at 641

– 42 . The probative valu e of the evidence was high because it re butted Gad sden ’ s theory of necessity a nd showed the nat ure of Gadsden ’ s abusive relati onship with Heidi . It h elped the jury understand why Heidi did not imme diately repo rt the November 5, 2019 assault , why she had not re ported any of Gadsden ’ s past abus ive condu ct , and why she had stayed with Gadsden

. See id. It also h elped the jury underst and Gadsden ’ s motive fo r the assault and his abusive behavior and explained an otherwise isolated incident or outb urst of violence

. For the sa me reasons, and b ecause Heidi ’ s cred ibilit y was implicitly at issu e, the S tate ’ s need for the evidence was high

. Gads den failed to meet h is burden of proof to establish that the evidence confused or misled the jury

. T he ext raneous
- offense evidence wa s not unduly prejudicial, and the tri al cou rt ’ s limiting instruction suf fic iently dimi ni shed the risk that the evidence had the potential to sw ay the ju ry to improperly convict Gadsden bas ed on character conformity. We overrule G adsden ’ s first point of err or. C. Admissibility of Expert Testim ony an d Exhibits In h is se cond poi nt of error , Gadsde n co ntends that the trial court abused its discretio n by allo wing the State to present Hens ley ’ s expert testimony and exhibits related to the dynami cs of domestic vi olence because the evidence was not s uffici ently tied to the fac ts of th e c ase to be relev ant to aid in the jury ’ s decision

. The State24 argue s t hat, because Gadsden did not raise this specific objection in the trial co urt, the point of error is unpreserved for our appellate review. A s suming, w ithout de ciding, that Gadsden ’ s sec ond point of error is preserved for appellate revie w, we hold that the trial court did not abuse its discretion by a dmitting Hen sley ’ s expert testimony and the accompanying exhibits. 1. Applicable L aw Rule 702 governs t he admissib ility of expert testimony. Tex. R. Evid. 702. Un der Rule 702, a witness who i s “ qu alified as an e xpert by knowledge, skill, experience, training, or educa tion ” may “ testify in the f or m of an opinion or otherwise if [her] sci entific, tech nical, o r other spe cialized knowledge will he lp the trier of fact t o understand the evidence or to determine a fact in issue. ” Id. Thus, expert testimony may be admitt ed onl y if (1) the witness qualif ies as a n expert by reason of her knowledge , skill, experience, tr aining, o r education ; (2) the testi mony ’ s subject matter is appropriate for expert tes timony; and (3) admi tting the expert testimony will aid the fact finder in dec i ding the case. Rhomer , 5 6 9 S.W.3d at 669

. These conditions are known as (1) qual ification, ( 2) reliab ility, and (3) relevan ce. Id. On appeal, Gadsden challenge s only relevan ce . 2. Relevance of the E xpert Te stimony Gadsden argues t hat Hensley ’ s testimony about the dyn amics of domestic violence was no t relevant because th is case was straightf orward and because the25 testimony covered dynamic s of abuse not tied to the fa cts of this case or ap plicable to G adsden and Heidi ’ s relati onship

. At Gadsden ’ s trial, Hens ley testified as follows about do mestic violence, the cy cle of violence, an d the power

- and

- co ntro l w heel:

• Domestic v iole nce invo lves power and control.

• Abuse is root ed in power and control.

• Abusers use p hysical and sexual abuse, emotion al abuse, intimidation, coercion, t hreats, isolation , ma le privilege, minim izing, denial, blame , and even their children to maintain po wer and con trol.

• T h e power
- and

- control wheel is a tool used to demon strate domest i c violence.

• The c enter of the wheel is power an d co ntrol, and each s poke of the wheel represents the different tactic s used by abuser s to exert powe r and control over their partner in the relationship.

• T h e abuser in an abusi ve r elationship may threaten to take children away from the victim or use immigration issue s to exert power and control.

• Emotional abuse i n cludes name

- calling, making t he victim feel worthless, and makin g the vict im feel like the abuse is th eir fault.

• Coercion in volves getting the v ictim to do somethi ng she may not want to do by using threa ts, including, for exa mple, threatening the victim that she would be ch arged with ki d napp ing if she left with a child

.

• Isolat ion l imits a victim ’ s ability to le ave the relationship

.

• Abuser s may r equire the victi m to seek per mission to use money , which is a common tactic u sed to exert power and contro l.

• Many victims describe their abuser as having strict, rigid bel iefs about ge n der roles in t heir relati onship in which the abuser is t he master of t he26 cast le and the v ictim ’ s role is to be submiss ive and to care for the children in the home.

• The cycle of violence consists of a circular pattern of three phases : tension buil ding, ex plosi on or violen ce, and honeymoon

.

• The cyc le repeat s ov er time an d ca n look different throughout the same relatio nship over time.

• A complete cyc le can occur in a day or may take years to complete.

• During the honeym oon pha se , the abuser may apologize an d promise to ch ange, which give s the victim a sense of false hope.

• The victim of domestic violence is often fe arful and typically does whate ver she can to just maintain peace in their relati onship.

• It i s common for victims of domestic violence to cho ose to not report abu se to the police out of fear of retaliation by the abu ser.

• T h ere are common trai ts that occur in most domestic

- violence relationships. The te stimony was re levant

. “ The average juror will not typical l y be familia r with the effect of dome s tic violence on victims and the dynamics of th e relationship between an abu ser and victim. ” J ames , 623 S.W.3d at 554 (citing Ferna ndez v. State , No. 02

- 18

- 0048 3

- CR, 2020 WL 105732 3, at *4 (Tex. App.

— Fort Worth Mar. 5, 2020, pet.

r ef ’ d

) ( mem. op., no t desi g nated for publica tion ) )

. And Gadsden conced es that the cycle of violenc e an d the power

- and

- cont rol wheel are generally accepted terms and tool s used by experts to explain the dome sti c - violence relationship. While the expert “ must make an effo rt to tie pert inent facts of the case to the

sc ientific principle s [that] are the sub ject of [her] testimony, ” hypothetical facts that27 “ mirror ” or “ parallel ” the facts of the case a re sufficient. T illman v. State , 354 S.W.3d 425, 4 38

– 3 9 (Tex. Crim. App. 2 0 11). Here, sev eral hypotheticals to which Hensley applied her theories and opin i ons m irrored th e facts of this case. For example, one hypothetical in which Hensley explained that an ab user may threate n to take a child

awa y or use i mmi gration issues to exe r t po wer and co ntrol over the victim mirror ed Heidi ’ s experien ces with Gadsden ’ s threa ts th at he would stop Gia ’ s adoption , which would interfere with Gia ’ s immigrat ion , and that Gia wo uld be deported

. Similarly, Hensley ’ s testimony th at an abuser may threat en to report the vic tim for kidnapping

as a coercion tactic parallels Gadsden ’ s thre ats to accuse Heidi of ki dnapping Gia. S everal other hypothetical s paralleled the emotional abuse that Heidi described , such as Gadsden ’ s name
- ca lli ng , cursing at her , t w

isting things a round, and making her feel like the abuse was her fault because , f or ex ample , she had scratched his car mirro r or had i gnored his phone calls

. Furth er, Hensley ’ s testim ony describing an abuser ’ s strict, rigid ideas t h a t there

are gen der ro le s in the relati onship and that the victim ’ s role is to be submissive is identica l to H eidi ’ s role in her relat ionship with Gadsden, in cluding his getting angry wit h her for not doing his laundry, his forcing her to perform sex ual a cts a nd “ wear things , ” an d her ultimatel y be coming his “ servant. ” O ther examples where He nsley ’ s testi mony desc ribing the common traits of a domestic

- violence relationship mirrors the facts of this case include Gadsden ’ s control over Heidi ’ s access to money , Heidi ’ s isolation whi le she lived in Mexic o with Gadsden and Gia , Gadsden ’ s abusive phone28 calls and tex t mes sages, Heidi ’ s fear, and Gadsden ’ s apology and promise to “ pay for it for the rest of [his] life

. ” Thus, Hensley ’ s testimony was sufficiently t ied to the facts of this c as e . See id. Whi le we agree with Gadsden to the exten t that Heidi ’ s testimony did not i dentify every as pect of power and control or describe in great detail each phase of the cycle of violence , we do not agree that such testimony was required for Hensley ’ s

e xpert testimon y t o be relevant. Rule 702 r equires that an expert ’ s testimony “ ta ke in to account enough of the pertinent facts to be of assistance to the trier of fact. ” Jordan v. State , 928 S.W.2d 550, 556 (Tex. Crim. App. 1996 ) (emphasis added)

. Hen sley ’ s testi mony was sufficiently tied to the facts o f the case to meet the simple req uirem ent that it be “ helpful ” to the jury

. See id. Indeed, “ [t] hat some facts were not ta ken into

a ccount by the expert is a matter of weight and c re dibili ty, not admis sibili ty. ” Id. Similar ly , that Heidi ’ s testimo ny about her relationship with Gadsden did not inc orporate every “ topic ” of Hensley ’ s testimony on th e dynamics o f dome stic violence is a m atter o f weight and credibility, not admissibility

. Se e i d

. Hensley ’ s t estimo ny was relevant to help the average juro r understand the dynamics of the relationship b etween Gadsden and Heidi , why Heidi would stay in a n

a busive relationshi p for so many year s , why she had not reported any of his past abusive co nduct, and why she did no t immediately re port the November 5, 201 9

ass ault

. For all these reasons , the trial cou rt did not abuse its discre tion by allowing29 Hensley ’ s expert testimony. See James , 623 S.W.3d at 555. We overrule Gads den ’ s second point of erro r. III . Conclusion Havin g overruled Gads den ’ s two point s of erro r, we affirm the trial court ’ s judgment

. /s/ Wa de Birdwell Wade Birdwell Justice Do Not P ublish Tex. R. App. P. 47.2 (b) Delivered : March 23, 2023