Fernandez v. State

• Decision Date: 05 March 2020
• Docket Number: No. 02-18-00483-CR,02-18-00483-CR
• Parties: CHAD MICHAEL FERNANDEZ, Appellant v. THE STATE OF TEXAS
• Court: Texas Court of Appeals

CHAD MICHAEL FERNANDEZ, Appellant v. THE STATE OF TEXAS

No. 02-18-00483-CR

Court of Appeals Second Appellate District of Texas at Fort Worth

March 5, 2020

On Appeal from the 297th District Court Tarrant County, Texas

Trial Court No. 1550055R

Before Kerr, Bassel, and Womack, JJ.

Memorandum Opinion by Justice Womack MEMORANDUM OPINION

I. INTRODUCTION

Appellant Chad Michael Fernandez appeals his conviction and fifteen-year sentence for stalking.¹ In four points, Fernandez argues that (1) the trial court abused its discretion by allowing the State's expert witness to testify about domestic violence in general and how those generalizations applied to the facts of this case, (2) the State's expert's testimony was more prejudicial than probative, (3) the stalking statute is facially unconstitutional, and (4) because the stalking statute is facially unconstitutional, this court should remand this case for a new trial.² We affirm.

II. BACKGROUND

Fernandez and the complainant in this case, Daisy Leza, began dating in November 2015 after meeting on Match.com. The relationship was tumultuous, and in mid-July 2016, Leza broke off the relationship. Fernandez began to leave angry and threatening voicemails on Leza's phone. Leza eventually blocked Fernandez's number and began to periodically stay with relatives in order to avoid contact with him. At trial, Leza testified that the couple's relationship had a pattern wherein Fernandez would do or say something that disturbed Leza, she would break off the relationship, but Fernandez would continue to communicate with her until she agreedto go out with him again. Following that pattern, in late July 2016, Leza and Fernandez celebrated Fernandez's birthday together in Dallas. Soon thereafter, Leza again broke off the relationship.

Around 4:00 a.m. in mid-August 2016, Fernandez entered Leza's backyard and knocked on her bedroom window. In an effort to keep Fernandez from coming to her house again, Leza agreed to unblock Fernandez's phone number to allow him to communicate with her. Over the next few weeks, Fernandez would follow Leza in her car, show up at her house uninvited with gifts, and persistently call her. At this point, Leza permanently moved in with her parents to avoid him.

Leza told Fernandez that she wanted him to leave her alone, but he continued to call her so she again blocked his phone number. However, Fernandez would use other phones to contact Leza, so she obtained a new phone number in early September 2016. A few days later, Leza saw Fernandez in the employee parking lot of her work. Later that same day, Fernandez went into the reception area of Leza's work. When security guards talked with him, he said that he was there to see Leza, but the guards told him to leave. According to Leza, security guards began to escort her to her vehicle when she would leave work until she was given a space in a secured lot.

On September 28, 2016, Leza went on her lunch break, and as she approached her parent's neighborhood, a vehicle started swerving close to hers and then drove in front of her, blocking her from moving. It was Fernandez, who got out of his vehicleand approached Leza's vehicle. Scared, Leza rolled down her window slightly, and after Fernandez pleaded with her to communicate with him, Leza gave Fernandez her new email account. From there, Fernandez sent several threatening emails,³ so Leza blocked his email address.

Undeterred, Fernandez began to frequently drive around the perimeter of her work. He also confronted her outside of a yoga class she had attended. In an attempt to appease Fernandez, Leza unblocked his email. Fernandez again began to send threatening emails, including threats to kill anyone who attempted to date her.

On November 11, 2016, after returning from a trip, Leza stopped by her house to pick up some things. She found flowers and letters from Fernandez in her mailbox. While inside her house, she heard a knock on her back window. After looking outside and seeing Fernandez's truck, she called the police. The police issued Fernandez a criminal trespass warning and advised Fernandez to no longer contact Leza. But Fernandez again sent numerous threatening emails,⁴ and on November 15, 2016, after obtaining an arrest warrant, police arrested Fernandez.⁵

At trial, the State called Lacy Hensley as a domestic-violence expert witness. After conducting a Rule 705 hearing,⁶ the trial court allowed Hensley, director of intake and client services at One Safe Place,⁷ to testify before the jury. Hensley averred that she has extensive experience regarding domestic violence and stalking behavior. According to Hensley, she had collected eighteen months of data covering more than 1,400 clients during the years of 2017 and 2018 at One Safe Place, and 78% of the clients had reported some form of electronic stalking via email, messaging, or unwanted phone calls. Hensley also said that the overarching umbrella of "domestic violence" includes emotional abuse or abuse through communication alone.

Hensley went on to explain the "Power and Control wheel," an educational tool used by domestic-abuse counselors to help explain to victims the cycle of domestic abuse. As she explained the Power and Control wheel, the State introduced a visual aid that Hensley had brought with her that she described as "a visual representation [designed] to help explain the types of behaviors that happen in an abusive relationship." Even though the visual aid has the words "physical" and "sexual violence" prominently displayed on its outer circle, Hensley said that domestic violence is "not just physical and sexual violence like we typically think of, there are many other types of abuse that also occur in those relationships, and the top eight are listed inside of the wheel." Specifically, Hensley pointed out the top eight that were listed on the visual aid: coercion and threats; intimidation; emotional abuse; isolation; minimizing, denying, and blaming; using children; economic abuse; and male privilege. After expressing these eight categories, Hensley again emphasized how domestic abuse "doesn't have to be physical or sexual abuse."

Hensley then testified that another tool used by domestic-abuse counselors is the "cycle of violence" and that there are three distinct phases of domestic abuse: tension building, an abusive incident, and a honeymoon phase. Like she did when describing the Power and Control wheel, Hensley repeatedly stated that an "abusive incident" does not have to be physical and includes incidents of verbal and emotional abuse. She also said that people can be in fear or put in fear for their life or livelihood through words alone.

Hensley testified that she had read some of the emails and texts that Fernandez had sent to Leza, although she had not met with either of them personally. Hensley opined that she could see multiple "cycle[s] of violence throughout the text messages and e-mails" and that these communications could have definitely placed Leza in fear, as general victims of stalking would be. Hensley said that common terms used by domestic abusers like "I'll show you" and "I'll never give up" were found frequently in Fernandez's communications to Leza and that the communications would escalate in tone and frequency if Leza did not communicate back. Hensley also said that she had reviewed emails and messages wherein Fernandez had explained to Leza how he knew her routine schedule⁸ and that this would deliver the message to any domestic-abuse victim that the abuser was in control of when and where he might show up.

Hensley explained that it is common in domestic-abuse scenarios for the victim to leave the relationship but to also leave open lines of communication with the abuser and that this communication did not lessen the fear for the victim. She also said that it is not uncommon for a victim to meet with an abuser after leaving in hopes of deescalating stalking behavior or to re-open lines of communication when an abuser begins to show up at locations uninvited. And Hensley stated that when a victim is being repeatedly exposed to stalking behavior, they often live in a constant"what's going to happen next" state of mind. Hensley defined stalking behavior as the totality of the circumstances and not just the individual isolated incidents.

Ultimately, a jury found Fernandez guilty of third-degree felony stalking but found the State's deadly-weapon (a vehicle) allegation not true. After Fernandez pleaded true to the State's repeat-offender notice, the trial court sentenced Fernandez to fifteen years' confinement. This appeal followed.

III. DISCUSSION

A. The Admissibility of Hensley's Testimony

In his first point, Fernandez argues that the trial court abused its discretion by allowing Hensley to testify about domestic violence "because it did not assist the jury in deciding an ultimate issue in this case, went beyond the scope of admissible expert testimony, and supplanted the jury's decision." We disagree.

1. Standard of Review

We review the trial court's determination as to the admissibility of expert testimony for an abuse of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). Expert testimony is admissible when scientific, technical, or other specialized knowledge will assist the factfinder in understanding the evidence or in determining a fact issue. Tex. R. Evid. 702; Cohn v. State, 804 S.W.2d 572, 575 (Tex. App.—Houston [14th Dist.] 1991), aff'd, 849 S.W.2d 817 (1993). Evidence admissible under Rule 702 may include testimony that compares general or classical behavioral characteristics of a certain type of victim with the specific victim's behavior patterns.See Duckett v. State, 797 S.W.2d 906, 917 (Tex. Crim. App. 1990) (holding testimony of expert on whether the reaction of complaining child was similar to the reaction of most victims of child abuse was helpful to the jury in determining if an assault occurred);⁹ Fielder v. State, 756 S.W.2d 309,...