Arevalo v. State

• Docket Number: 11-22-00123-CR
• Decision Date: 31 August 2023
• Parties: REY AREVALO, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

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REY AREVALO, Appellant
v.
THE STATE OF TEXAS, Appellee

No. 11-22-00123-CR

Court of Appeals of Texas, Eleventh District

August 31, 2023

On Appeal from the 161st District Court Ector County, Texas Trial Court Cause No. B-22-0014-CR

Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.

OPINION

W. STACY TROTTER JUSTICE

A grand jury indicted Appellant, Rey Arevalo, for the offense of continuous violence against the family, a third-degree felony. Tex. Penal Code Ann. § 25.11(a), (e) (West Supp. 2022). After a jury trial, Appellant was convicted of the charged offense, and the jury assessed his punishment at nine years' imprisonment in the Texas Department of Criminal Justice, Institutional Division, and a $5,000 fine. The trial court sentenced him accordingly.

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Appellant contends on appeal that the trial court (1) abused its discretion when it admitted evidence of extraneous offenses or bad acts committed by Appellant; (2) erred when it refused to include a lesser-included-offense instruction on the offense of assault-family violence in its charge; (3) erred when it submitted an "overly broad, non-tailored definition" of "knowingly" in its charge; (4) erred when it raised the issue of punishment enhancement in the presence of the jury at the beginning of the punishment phase; and (5) erred when it submitted a parole-law instruction in its punishment charge pursuant to Article 37.07, Section 4(c) of the Texas Code of Criminal Procedure that was incomplete. We affirm.

I. Factual Background

Appellant was in a tumultuous dating relationship with the victim, Tina Torres, for approximately one year. During that time, he lived with Torres and her three children intermittently, depending on the status of their relationship at any given time.

The first incident for which Appellant was indicted occurred on May 14, 2021, when he accosted Torres at the Dollar Tree in Odessa where she worked. Surveillance video footage shows Appellant entering an "employees only" area in the back of the store, where he attacked Torres; he struck and pushed her several times. Torres testified that, during this incident, Appellant told her she was "going to be his girl and that [she] was never going to be nobody else's girl." Torres also testified that she and Appellant were separated at the time, but that they had resumed dating again some weeks after this incident. According to Torres, Appellant began texting her, saying that he wanted to work things out between them. Torres testified that the text messages scared her, because she was afraid that rebuffing

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Appellant's advances would result in Appellant committing even more acts of violence against her.

The second incident for which Appellant was indicted occurred on August 8, 2021. On August 29, police were again called to the Dollar Tree because Torres was afraid that Appellant had entered the store. Torres reported to Officer Gary Potter of the Odessa Police Department that she was afraid because Appellant had vandalized her vehicle the day before. Appellant had appeared at her apartment and "keyed" her vehicle by scratching the paint on all sides of the vehicle and scratching the word "cheater" on the hood. Torres then showed Officer Potter a healing scar on her face and explained that Appellant had thrown her cell phone at her face during an argument between them a few weeks prior, on August 8, which resulted in a bloody cut on her cheek. Torres showed Officer Potter pictures of her injury and he captured images of these pictures with his cell phone by using an evidence collection photography application.

In a third, unindicted incident that occurred on June 25, 2021, Officer Jere Strong of the Odessa Police Department was off duty and driving his personal vehicle when Torres ran into the road in front of his vehicle, causing him to "slam on" the brakes. Officer Strong then observed that Torres was fleeing from a Hispanic male. Officer Strong exited his vehicle and spoke with Torres, who stated, "[h]e is following me and he hit me." Torres explained that Appellant had taken her keys, had thrown her cell phone at her face, had driven her vehicle after she exited it to get away from him, and was now pursuing her on foot. Officer Daniel Chapa of the Odessa Police Department responded to the scene to investigate the incident; Appellant initially provided a false name to Officer Chapa. Appellant was subsequently charged with assault and failure to identify.

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After these incidents, Appellant was indicted for a single count of continuous violence against the family. Torres testified that, approximately two weeks before Appellant's trial commenced, Appellant appeared outside of her residence; he was accompanied by another woman. Torres testified that Appellant told the woman to attack Torres. Torres then fled to her friend's vehicle. Prior to trial, the trial court revoked Appellant's bond based on this incident.

II. Standards of Review

A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019); Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). This standard also applies to a trial court's decision to admit or exclude extraneous-offense evidence. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); Barron v. State, 630 S.W.3d 392, 410 (Tex. App.-Eastland 2021, pet. ref'd). We will not reverse a trial court's decision to admit or exclude evidence, and there is no abuse of discretion, unless that decision lies outside the zone of reasonable disagreement. Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018); De La Paz, 279 S.W.3d at 343-44; Barron, 630 S.W.3d at 410. Furthermore, we will uphold a trial court's evidentiary ruling, even if the trial court's reasoning is flawed, if it is correct on any theory of law that finds support in the record and is applicable to the case. Henley, 493 S.W.3d at 93; Dering v. State, 465 S.W.3d 668, 670 (Tex. App.- Eastland 2015, no pet.).

Appellate review of alleged charge error is a two-step process. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012) (citing Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994)). First, we must determine whether charge error exists. Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015) (citing Kirsch,

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357 S.W.3d at 649). Second, if error does exist, we must then conduct a harm analysis to determine whether the error resulted in sufficient harm to warrant reversal. Id.; Phillips v. State, 463 S.W.3d 59, 64-65 (Tex. Crim. App. 2015); Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005); Ybarra v. State, 621 S.W.3d 371, 384 (Tex. App.-Eastland 2021, pet. ref'd).

Although "the jury is the exclusive judge of the facts," it is "bound to receive the law from the court and be governed thereby." Tex. Code Crim. Proc. Ann. art. 36.13 (West 2007). The purpose of the trial court's charge is to "inform the jury of the applicable law and guide them in its application to the case." Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007) (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996)). Charge error stems from the denial of a defendant's right to have the trial court provide the jury with instructions that correctly set forth the "law applicable to the case." Bell v. State, 635 S.W.3d 641, 645 (Tex. Crim. App. 2021) (quoting Crim. Proc. art. 36.14). Because the trial court is obligated to correctly instruct the jury on the law applicable to the case, it is ultimately responsible for the accuracy of its charge and the accompanying instructions. Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018) (citing Delgado, 235 S.W.3d at 249). Therefore, when the charge is inaccurate, the trial court errs, and the error is subject to a harm analysis. See Bell, 635 S.W.3d at 645.

III. Analysis

As relevant to this appeal, a person commits the offense of continuous violence against the family if, during a period that is twelve months or less in duration, the person commits two or more assaults that cause bodily injury to another person who has or had a dating relationship with the defendant. See Penal §§ 25.11(a), 22.01(a)(1); Tex. Fam. Code Ann. § 71.0021(b) (West 2019) (defining

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"dating relationship"). It is undisputed that Appellant and Torres were in a dating relationship; that the two assaults allegedly occurred within a twelve-month period is not an issue on appeal.

A. Extraneous-Offense Evidence

In his first issue, Appellant contends that the trial court abused its discretion when it admitted evidence of extraneous offenses or bad acts committed by Appellant-specifically, evidence of the June 25 incident in which he was charged with assault and failure to identify and Torres' testimony concerning harassing text messages that she received from Appellant. We conclude that (1) Appellant has failed to preserve this issue for our review or he has waived it; and (2) even if Appellant had preserved this issue, the trial court did not abuse its discretion when it admitted the complained-of evidence.

1. Preservation and Waiver

To preserve a complaint for appellate review, the complaining party must present a specific, timely objection or motion to the trial court which states the specific grounds for the desired ruling. Tex.R.App.P. 33.1(a)(1)(A); Montelongo v. State, 623 S.W.3d 819, 822 (Tex. Crim. App. 2021); Burg v. State, 592 S.W.3d 444, 448-49 (Tex. Crim. App. 2020); see Tex. R. Evid. 103(a). Further, the complaint and arguments raised on appeal must comport with and correspond to the objections made, if any, at trial or they are waived. Tex.R.App.P. 33.1(a)(1)(A); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995); Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991); Dominguez v. State, 474 S.W.3d 688, 699 (Tex. App.-Eastland 2013, no pet.). As...