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Click here for the full text of this decision FACTS:Toward the end of Donald Ray Jones’ stormy seven-year marriage to Theresa Davis, Davis visited the house of her niece, where she drank beer and celebrated a child’s birthday. Davis then elicited a ride from her mother and, upon arriving at the house which she shared with Jones, she discovered the front door locked. After she knocked loudly, either Jones opened the door to allow her to enter or she entered the house through another door. The court noted that the story line diverges between two versions at this point. Davis maintained that Jones called her while she was at her niece’s house, rudely instructing Davis to immediately return home. After she entered the house and put down her belongings, she asked Jones why he had told her to “Bring [my] ass home,” whereupon Jones picked up a walking cane and attacked her with it, striking her with the cane between 10 and 20 times. The beating ceased when Davis informed Jones that her mother remained outside the house in her car; when Jones went to determine the truth of the statement, Davis ran from the house. Shortly after Davis left the house, Jones ran to his truck, entered it and sped from the premises. Davis maintained that she had no knife during this incident. Davis had to seek medical treatment for the wounds that she suffered. Jones testified that Davis had been very drunk the evening before the incident and that he had called Davis’ niece the afternoon of the incident to leave word for Davis not to come home if she was intoxicated. When Davis entered the house, she was carrying a beer and acting belligerent. She put down the beer she was carrying and came at him with a knife, cutting his finger. Jones said that he then grabbed the cane and struck Davis repeatedly with it until she dropped the knife. Davis grabbed the cane while Jones was still holding, and they struggled over it. During this struggle, Jones let go of the cane, causing Davis to fall backward, striking her head on a stove. Jones then hurriedly left the house and went to the residence of his aunt Betty Jones. The common threads between the two stories are that Davis entered the house, Jones and Davis argued, and Jones repeatedly struck Davis with the cane. The incident came to a conclusion with Jones rapidly leaving the house, getting into his truck and leaving. Authorities arrested Jones and charged him aggravated assault with a deadly weapon. The jury convicted him and sentenced him to 30 years of confinement. The state was allowed to introduce evidence of two previous circumstances in which Jones had subjected Davis to physical violence. On one occasion in 1999, Jones had struck Davis in the mouth, causing a split lip, which needed to be sutured; on another occasion in 2004, Jones had choked Davis. On the first occasion, no criminal charges were filed, but Jones was convicted of family violence assault in 2004. Jones raised two points of error in his appeal: 1. he complained of the actions of the trial court in allowing the admission of evidence of the two alleged prior assaults of Davis by Jones, and 2. he excepted to the refusal of the trial court to submit the issue of the lesser-included offense of simple assault to the jury. HOLDING:Affirmed. Jones complained that the trial court erred in allowing evidence of two previous assaults of Davis by Jones. Texas Rule of Evidence 404(b), the court stated, provides that evidence “of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” In some circumstances, the court stated, positions or defenses first posited during an opening statement are subject to impeachment. The court noted that Jones plainly stated in his opening argument that he was to rely on a claim of self-defense in the altercation which occurred between him and Davis. Thus, the court found that Jones opened the door for the state to show other incidents in which Jones attacked Davis. In introducing evidence of previous assaults by Jones on Davis, the court stated, the state did nothing more than rebut the defense which had been raised by Jones in the opening statement. Second, Jones complained of the refusal of the trial court to instruct the jury that it could find Jones guilty of the lesser-included offense of assault rather than the aggravated assault with which he was indicted. The evidence, the court stated, was uncontroverted that Jones struck Davis repeatedly with a cane and that the cane (when used in the fashion Jones employed it) met the definition of a “deadly weapon.” There was neither evidence adduced at any time that Jones did not strike Davis with the cane nor was there any evidence presented that the cane was not a deadly weapon. The only real defense which Jones presented was that he struck Davis with the cane as an act of self-defense. Therefore, the court found no germane evidence presented for the jury to rationally consider that the lesser-included offense of simple assault took place; under the evidence presented, if the jury found that any assault occurred at all, it was an aggravated assault. OPINION:Moseley, J.; Morriss, C.J., and Carter and Moseley, JJ.

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