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Click here for the full text of this decision FACTS:Gerrard Eugene Dixon and Priscilla Smith became acquainted and started dating during 2003. After dating for approximately three months, they moved in together. On Feb. 18, 2004, Dixon accused Smith of trying to obtain another man’s telephone number. When Smith denied Dixon’s accusation, Dixon hit her repeatedly with his open hand, beat her with a tennis shoe and struck her with a baseball bat. The next day, Smith received medical treatment and gave a statement to police. State’s Exhibits No. 2 through No. 15 consist of photographs of Smith taken on Feb. 19, 2004. State’s Exhibits No. 2 through No. 8 depict bruising on both of Smith’s arms which, Smith testified, was caused by Dixon having allegedly struck Smith with a shoe. State’s Exhibits No. 9 through No. 15 depict a large bruise on Smith’s right thigh which, Smith testified occurred as a result of Dixon allegedly striking her with a baseball bat. Authorities charged Dixon by indictment with aggravated assault. The indictment included two enhancement allegations, both of which were prior convictions for aggravated assault. Dixon pleaded not guilty to the charged offense and not true to the enhancement allegations. The jury found Dixon guilty of aggravated assault. At the conclusion of the punishment phase of Dixon’s trial, the jury found that both enhancement allegations were true and assessed punishment at 38 years of confinement. On appeal, Dixon contended: 1. factually insufficient evidence supported the jury’s verdict; 2. the trial court erred in admitting the expert testimony of a police officer; and 3. the trial court erred in admitting testimonial hearsay during the punishment phase of his trial. HOLDING:Affirmed. Dixon claimed that the jury’s verdict was undermined by Smith’s testimony that after Dixon assaulted her, Smith and Dixon began dating again and lived together in a hotel room from approximately June to December of 2004, even though Smith knew Dixon was seeing other women. Dixon further contended the jury’s verdict is undermined by Smith’s testimony that she knew a warrant had been issued for Dixon’s arrest but did not report his whereabouts to the police until December of 2004. Viewing all the evidence in a neutral light, the court held that the evidence supporting the verdict was not so weak that the verdict was clearly wrong and manifestly unjust, nor was the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. Accordingly, factually sufficient evidence proved Dixon intentionally caused injury to Smith by using a baseball bat. In his second issue, Dixon argued that the trial court abused its discretion by admitting the expert testimony of Officer Kerry Bray regarding the dynamics of family violence. Dixon contended Bray was not qualified to give expert testimony pertaining to family violence and further argued that Bray’s testimony on family abuse dynamics served to bolster the complainant’s testimony. Texas Rule of Evidence 702 provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Bray testified that he had been a Houston police officer for 23 years and has been an investigator since 1989. Bray testified that he received training from the Houston Police Department pertaining to family violence. Bray testified that as a patrol officer he visited scenes where family violence had occurred and worked with victims of domestic abuse. Bray testified he joined the HPD Family Violence Unit in 1999 and since that time had been involved in more than 300 cases involving domestic violence. Bray further testified he had observed a common trend among victims of family violence. Based on Bray’s knowledge, training and experience, the court concluded that Bray was qualified to give expert testimony regarding the behavior of victims of family violence. Bray’s testimony, the court stated, assisted the trier of fact by helping the jury to understand the evidence regarding Smith’s post-assault behavior. Finally, Dixon contended that the trial court erred in admitting the alleged testimonial hearsay statements of Carrie Brownfield, who also claimed that Dixon assaulted her. State’s Exhibit 36 was an audiotape of a 911 call initiated by Brownfield. Brownfield was highly distraught and cried continuously throughout the 911 call, at times becoming hysterical. The court concluded that the statements of Brownfield recorded on the 911 tape fell within the excited utterance exception to the hearsay rule and were not testimonial. Thus, the court held that the trial court did not err by admitting State’s Exhibit No. 36 into evidence during the punishment phase of Dixon’s trial. But the court found that testimony of Deputy Benwood Russell regarding a statement by Brownfield following the 911 call was testimonial, because there was no ongoing emergency. Thus, because Dixon did not have a prior opportunity to cross-examine Brownfield, the court held that the trial court erred in admitting Russell’s testimony regarding statements made to him by Brownfield on Sept. 20, 2004, and the trial court’s error was a violation of Dixon’s right to confrontation under the 6th Amendment to the U.S. Constitution. The court found, however, that the improperly admitted testimonial statements of Brownfield were, by comparison with the strength and volume of the properly admitted evidence, inconsequential. In light of the evidence properly before the jury, the court found no reasonable probability that the testimonial statements moved the jury from a state of nonpersuasion to one of persuasion with regard to Dixon’s punishment. OPINION:Anderson, J.; Anderson and Fowler, JJ. CONCURRENCE:Frost, J. “Under Texas Rule of Evidence 702, Officer Bray qualifies as an expert in law enforcement, but his law-enforcement experience and training do not qualify him as an expert in the field of family violence dynamics or the behavioral propensity of abuse victims to return to their abusers post-assault. For this reason, Officer Bray should not have been permitted to testify regarding these matters.”

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