CHRISTOPHER WILLIAMS v. THE STATE OF TEXAS

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Court of Appeals of Texas, Beaumont.

CHRISTOPHER WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee

NO. 09-16-00075-CR

Decided: October 04, 2017

Before McKeithen, C.J., Kreger and Johnson, JJ.

MEMORANDUM OPINION

Andrea Piwko was found dead on July 30, 2015. In September of 2015, a grand jury indicted Christopher Williams for the offense of murder. See Tex. Penal Code Ann. § 19.02(c) (West 2011). A jury found Williams guilty of murder and sentenced him to confinement for life and assessed a $10,000 fine. Appellant appeals his conviction, raising three issues, each concerning the admission of evidence. We affirm the trial court's judgment.

Testimony and Evidence Presented At Trial

Rebecca Marlow, a dispatcher with the Polk County Sheriff's Office, testified that she accepted a call from a caller named “Chris” on July 30, 2015. The caller said “I tried to keep her breathing[.] ․ she's not doing good. ․ She fell and hit her head. ․ She hit her head on the chair last night.”

Amber McCarthy testified that she is a volunteer emergency medical technician and that, while working on July 30, 2015, she was called to a “bad scene [ ]” where a person was “wrapped up” on a bed inside a cabin. According to McCarthy, “[t]here [were] no signs of life. She had no pulse.” McCarthy described the scene at the cabin as “a disaster,” glass was on the floor, and she “noticed it was not safe and [ ] walked right back out.”

Lieutenant Craig Finegan with the Criminal Investigation Division of the Polk County Sheriff's Office testified that he received a call on July 30, 2015, regarding a possible homicide at a cabin. He discovered a deceased female at the scene and called the Texas Rangers for assistance. Finegan recalled seeing a bloody towel lying next to the body of the deceased.

Deputy William Jerry with the Criminal Investigation Division of the Polk County Sheriff's Office testified that on July 30, 2015, he was called to help apprehend Williams after receiving a call that Williams was on foot and there was an arrest warrant for Williams for an offense other than Piwko's murder. Deputy Jerry explained that he found Williams “hiding behind a tree[,]” and that Williams was sweaty and had a cut on his nose. The Deputy identified the defendant as Williams.

Ranger Ryan Clendennen, in the Rangers Division of the Department of Public Safety, testified that he was contacted by the Polk County Sheriff's Office to assist in the investigation of Piwko's death. Clendennen testified that State's Exhibits 45 through 53 accurately depict the scene at the cabin and State's Exhibits 2 through 4 depict the body found at the scene. According to the Ranger, he saw that Piwko's body was lying on the bed “covered up with two separate blankets[ ]” and he “immediately observed that she had trauma to the head and facial area[.]” The Ranger testified that upon arrival, he noticed that the exterior door of the cabin showed signs of a forced entry and that the door appeared to have been kicked multiple times. After observing footprints near the cabin door and the broken door, the Ranger concluded some kind of disturbance had occurred, and it appeared that somebody had tried to get away or barricade themselves inside the residence or would not let someone into the residence. Clendennen testified that Piwko's hair was matted and appeared to have blood in it, and that the photos depicted clumps of hair on the corner of a dresser and on the ground. The Ranger explained that he noticed evidence of trauma to Piwko's face: she had blood coming from her nose, black eyes, loose pieces of hair, and it appeared she had been beaten severely. Clendennen testified that he found bloody towels, garments, and other articles strewn about the cabin, and he found a bloody towel in the freezer. The Ranger explained that he found bloodstains on the bed and some blood spatter consistent with coughing. According to Clendennen, outside the cabin he found broken glasses and “gouge marks” that appeared to have been made by hand, which suggested to him someone had fallen or been pushed off the porch and had possibly crawled on their hands and knees.

Ranger Clendennen testified that after talking with various witnesses that day, including Williams, Williams became a suspect and was arrested on a different warrant. Clendennen identified the defendant as Williams. According to Clendennen, Williams told him that Piwko “tripped, spun around, and fell [ ]” but that it would have been nearly impossible for Piwko to have hit her head as Williams described based on the position of furniture in the room. Clendennen testified that Williams told him he had laid Piwko on the bed, turned her on her side to get blood off her, wiped her, and gave her mouth-to-mouth. The Ranger explained that Williams told him the abrasion on his nose was caused when he tried to choke himself the night before, but in Clendennen's opinion, Williams's injuries did not corroborate the fight that Williams described between him and Piwko. The Ranger agreed that Williams said “[i]t wasn't planned. It was not premeditated. I didn't mean for it to happen[,]” and that Williams claimed he told Piwko “I just want you to get better, baby, because I love you.” According to Clendennen, after talking with Williams, there was no issue as to who was involved in Piwko's death. The Ranger agreed that State's Exhibit 106 was an accurate redacted recording of Williams's statement to him at the scene on July 30, 2015, and Exhibit 106 was published to the jury.

Ben Bayne testified that he saw Piwko at the Whirlwind club “about one day or less[ ]” before she died. Bayne explained that he thought Piwko looked troubled, and he offered her a drink. According to Bayne, he gave Piwko a ride home and upon arriving at her cabin, Piwko did not want to get out of his vehicle and said she felt uncomfortable there alone. Bayne explained that he took Piwko to his residence, where he and Piwko had sex. Bayne testified that later, when they were outside talking with some people, Williams arrived in a blue truck. Bayne explained that Williams escorted Piwko into the truck, but Bayne thought Piwko looked “reluctant[,]” and Bayne was not sure whether Williams helped or pushed Piwko into the truck. According to Bayne, Williams got in the truck, Williams then exited the truck, and returned and told Bayne that he was “AB[,]” which Bayne understood to mean “Aryan Brotherhood,” and then Williams returned to the truck and left with Piwko.

Misty Casey testified she saw Piwko at Bayne's home on July 30, 2015. Casey explained that a big truck arrived and Williams jumped out and yelled “I'm AB [ ]” and that he was “coming to get her ․ and there ain't [anything] y'all can do about it. I'm AB.” Casey testified that Williams was “in a rage.” According to Casey, she told Andrea she was “stupid” if she went with him, and

․ [Williams] came over and got Andrea and got her by the hair, was dragging her back and forth. And they kind of scooted a little bit.

She was trying to get away. She got away for a second, and then he got ahold of her again. I'm steadily yelling at him. I told him “You just need to leave her alone. ․”

Casey explained that Williams grabbed Piwko by the hair on the back of her head and that Williams was trying to drag Piwko to the truck. According to Casey, Williams “forced” Piwko into the truck, and he pushed her into the back seat. Casey testified that Williams told Piwko “[w]e'll deal with this when we get home[ ]” and that she heard Piwko say “I'm not going. I don't want to go.”

Richard King testified that the night before Piwko was found dead, Williams knocked on his door at 2:30 a.m. and asked to use the phone. King testified that Williams said “I got my problems.” According to King, Williams appeared intoxicated, had blood on his torso and across his nose, and had scratch marks on his chest. King explained that Williams asked for help dialing the phone, and that Williams did not dial 911 but rather dialed two Livingston numbers.

Tamara Kimbro testified that she worked as a bartender at the Whirlwind where she saw Piwko about 11:45 a.m. on the morning before Piwko was found dead. Kimbro testified that Piwko “seemed lost, like something was wrong [.]” According to Kimbro, Bayne arrived a few hours later, and Bayne bought Piwko a drink.

Anson Reed testified that he was Williams's neighbor in July of 2015. Reed explained that he saw Williams at King's cabin after midnight and noticed a fresh cut on Williams's nose. According to Reed, he walked with Williams to his cabin, and Williams said that he had messed up. Reed explained that he looked into the cabin but did not walk in, that the cabin was “in very messy condition,” and that he saw Piwko on the bed underneath some blankets. According to Reed, Piwko was completely covered and was still moving.

Lola Nichol Morton testified that she had known Williams since they were about twelve years old and that she had given Williams a ride to pick up Piwko at Bayne's house the day before Piwko died. Morton testified that the following morning, Morton encountered Williams in her bedroom when Williams said “I need your help with Andrea.” Morton explained that Piwko had previously told her she had bipolar disorder, and Morton thought Piwko had suffered a manic episode. Williams had a laceration across his nose that Morton had not observed the previous day. According to Morton, she told Williams to call 911.

Karissa Wylie identified the defendant as Williams, and she explained that she knew Williams and she lived near Williams's father's home. Wylie explained that she first met Williams and Piwko about six or seven months before Piwko died when Wylie saw them walking down the street and they asked her for a ride. Wylie described Williams and Piwko as “happy[ ]” and “a normal couple[ ]” when she met them, and Piwko appeared “well kept[ ]” and was healthy and happy. Some months later, Wylie noticed a change, and Piwko's “hair started getting thin and matted. She became real skinny, more pale. Her clothing changed[ ]” and Piwko wore heavy, long clothing even when it was hot outside. On one occasion, Wylie offered Piwko some of her own clothes because Piwko was wearing what looked like men's pants and a jacket with no shirt or undergarment on underneath. When Piwko put the clothes on, Wylie observed bruises on Piwko's arm. The day Wylie offered clothes to Piwko and saw her bruises, Wylie was concerned about the possibility of abuse. Wylie asked Piwko about abuse, but Piwko “blew it off[ ]” and explained the bruises resulted from running into the door frame. Wylie explained that she offered to take Piwko to a Safe House for counseling, but Piwko did not show up to go with Wylie, and Piwko later told her that Williams would not let her go to Wylie's house that morning. According to Wylie, she never saw Williams physically hurt Piwko, but she saw Piwko change negatively as the relationship with Williams progressed.

Lisa Henderson, Piwko's mother, testified that Piwko developed problems with anxiety and depression during high school, and at age twenty-one, Piwko received a diagnosis of bipolar disorder. According to Henderson, Piwko struggled with mental illness, used both prescription and street drugs, and was unable to care for her own son due to instability. Henderson explained that in June of 2015, after Piwko had left home to be with Williams, Henderson took Piwko to a psychiatric hospital because Piwko was crying and said she was depressed. Henderson testified that when she picked Piwko up at Williams's home, she had never seen Piwko look so bad—that she was dirty, had sores, and wore baggy men's clothes. Henderson explained that she took Piwko to the hospital for an evaluation and she noticed a fresh bruise on Piwko's face. Henderson said Piwko told her several times that Williams had hit her. According to Henderson, Piwko frequently was unstable and erratic, but she became worse when she was with Williams.

Dr. Pramod Gumpeni, Assistant Deputy Chief Medical Examiner at the Harris County Institute of Forensic Science, testified that he performed an autopsy of Piwko. The State admitted Exhibits 6 through 35 over an objection by the defense, and Dr. Gumpeni testified that the exhibits were photographs of Piwko taken as part of his autopsy examination. According to Dr. Gumpeni, Piwko had forty abrasions and contusions on her face and more than forty on her body. In Dr. Gumpeni's opinion, the cause of Piwko's death was “blunt trauma of head and extremities with subdural hemorrhage[ ]” and the manner of death was homicide. Dr. Gumpeni testified that Piwko's injuries were not consistent with her having stumbled into furniture. According to Gumpeni, when Piwko first became unresponsive, it probably would have been possible to prevent her death, and he could not determine if any of the blows to Piwko's body occurred after she became unresponsive. The doctor explained that his examination revealed no signs of cardiopulmonary resuscitation.

Issues

In his first issue, Appellant argues that the court erred in admitting “the numerous, repetitious, and gruesome photographs of the [d]eceased[‘s] body taken during the autopsy.” According to the Appellant, the prejudicial effect of the autopsy photographs outweighed their probative value, and that the photographs were “repetitious and redundant[.]” According to Appellant, the autopsy photographs were “very gruesome, prejudicial, and highly inflammatory” as well as repetitive of the medical examiner's testimony. Appellant argues that the photographs were offered “for the sole purpose of inflaming the [j]ury with undue prejudice and the presentation of needless cumulative evidence to achieve their means.”

In his second and third issues, Appellant argues that the court erred in allowing certain testimony by witnesses Karissa Wylie and Lisa Henderson. Appellant argues that the complained-of testimony included “hearsay statements made by the Complainant.” According to Appellant, before admitting evidence under article 38.36, a trial court must first determine its relevancy as well as perform a Rule 403 balancing test. Appellant argues that the trial court “wholly failed to hold a proper hearing for the admissibility of the evidence under Texas Rules of Evidence 403 as to both of the witnesses['] testimony.”

Standard of Review

We review evidentiary rulings for an abuse of discretion. Salazar v. State, 38 S.W.3d 141, 153 (Tex. Crim. App. 2001). A trial court does not abuse its discretion if its decision falls within the zone of reasonable disagreement. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). That a trial court may decide a matter within its discretionary authority differently than an appellate court might does not demonstrate such an abuse. Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990) (op. on reh'g). Thus, we will not reverse a trial court's evidentiary ruling if it is within the zone of reasonable disagreement. See Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009).

Admission of Autopsy Photographs

Evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. Relevant evidence may be excluded by the trial court under Rule 403 “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” Tex. R. Evid. 403. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010); Andrade v. State, 246 S.W.3d 217, 227 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd).

Evidence is excludable under Rule 403 only when there is a clear disparity between the degree of prejudice and the probative value of the evidence. Davis, 329 S.W.3d at 806. A proper Rule 403 analysis includes, but is not limited to, the following factors: (1) the probative value of the evidence, (2) the potential to impress the jury in some irrational, yet indelible way, (3) the time needed to develop the evidence, and (4) the proponent's need for the evidence. Reese v. State, 33 S.W.3d 238, 240-41 (Tex. Crim. App. 2000).

Admissibility of photographs is within the sound discretion of the trial court. Rayford v. State, 125 S.W.3d 521, 529 (Tex. Crim. App. 2003) (citing Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002)). Autopsy photographs are generally admissible, unless they depict mutilation of the victim caused by the autopsy itself. Id.; Salazar, 38 S.W.3d at 151. A court may consider many factors in determining whether the probative value of photographs is substantially outweighed by the danger of unfair prejudice, including: the number of exhibits offered, their gruesomeness, their detail, their size, whether they are in color or black and white, whether they are close up, whether the body depicted is clothed or naked, the availability of other means of proof, and other circumstances unique to the individual case. Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997); Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991).

Autopsy or post-autopsy photographs can be used to illustrate injuries and to reveal cause of death. Drew v. State, 76 S.W.3d 436, 452 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd) (citing Ladner v. State, 868 S.W.2d 417, 426 (Tex. App.—Tyler 1993, pet. ref'd)). An important concern in determining whether to admit autopsy photographs is whether the jury might attribute certain injuries caused by the autopsy to the defendant, unfairly prejudicing the defendant's case. See Salazar, 38 S.W.3d at 151; see also Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim. App. 1998) (autopsy photographs were admissible because the gunshot wounds and trauma to the pelvic area depicted in the photographs were a result of appellant's actions, not the performance of the autopsy); Santellan, 939 S.W.2d at 173 (a change caused as part of the autopsy process which is of minor significance does not prevent the admission of the photograph when its disturbing nature is due primarily to the injuries caused by appellant). Therefore, if the troubling nature of the photographs is due primarily to the injuries caused by the defendant, then the changes to the body caused by the autopsy are only of minor significance. See Hayes, 85 S.W.3d at 816 (citing Santellan, 939 S.W.2d at 173).

Autopsy photographs that show mutilation caused by the autopsy may be admissible in some circumstances, such as when the photographs show an injury that would not have been visible otherwise. See Davis v. State, 313 S.W.3d 317, 331 (Tex. Crim. App. 2010) (trial court did not abuse its discretion in admitting photograph of cross-section of decedent's tongue; photo was necessary to show injury not otherwise visible); Gallo v. State, 239 S.W.3d 757, 763 (Tex. Crim. App. 2007) (autopsy photographs depicting decedent's brain, skull, and a fractured rib that had been removed were admissible; medical examiner used photos to show injuries that could not be seen from body's surface and were probative of full extent of injury to decedent). “A trial court does not err merely because it admits into evidence photographs which are gruesome.” Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995); see also Gallo, 239 S.W.3d at 763 (“Although these photographs are gruesome, there was no danger that the jury would attribute the removal of the rib, scalp, or skull cap to the defendant.”).

Objections to Photographs

To preserve error concerning evidentiary rulings, a party's objection must be timely, and it must specifically state the grounds on which the objection is based, if the grounds are not apparent from the context. Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a); Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh'g).

Appellant's issue on appeal challenges the admission of State's Exhibits 6 through 35. The medical examiner who performed Piwko's autopsy explained that State's Exhibits 6 through 31 depict Piwko's body as he examined her prior to making any incisions and that State's Exhibits 32 through 35 depict hemorrhages and contusions that were visible after certain incisions had been made during Piwko's autopsy. When the State offered Exhibits 6 through 31, the defense responded “I have no objection except to No. 10․ On No. 10, the probative value is substantially outweighed by the prejudice.” The trial court overruled the defense's objection to State's Exhibit 10 and admitted Exhibits 6 through 31. Because Williams only objected at trial to State's Exhibits 10 and 32 through 35, he failed to preserve error as to State's Exhibits 6 through 9 and 11 through 31.1

When the State offered Exhibits 32 through 35, the defense objected “on the basis, one, it's not relevant. The probative factor is far outweighed by the risk of unfair prejudice.” After taking the medical examiner on voir dire, the defense withdrew its relevancy objection and reurged its Rule 403 objection. The trial court overruled the defense's objection and admitted Exhibits 32 through 35.

The State's brief on appeal characterizes Exhibit 10 as “the only ‘bloody’ photograph introduced into evidence by the State.” At trial, the State explained that Exhibit 10 depicted “the condition of the decedent as a result of the defendant's hand.”

Appellant makes no specific argument regarding how State's Exhibit 10 is more prejudicial than probative and makes only conclusory arguments that the complained-of exhibits are gruesome, repetitive, inflammatory, and prejudicial. Appellant failed to make any argument as to how Exhibit 10 suggested a decision on an improper basis, confused or distracted the jury, or consumed an inordinate amount of time at trial. See Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).

The trial court could have reasonably concluded that the State demonstrated it needed the evidence to demonstrate the injuries of which Piwko died, that the evidence did not consume an inordinate amount of time or merely repeat evidence already admitted, and that the evidence did not have a tendency to suggest a decision on an improper basis or to confuse or distract the jury from the main issues in the case. See id. Weighing these factors, we conclude the trial court's decision to admit State's Exhibit 10 as more probative than prejudicial is within the zone of reasonable disagreement.

As to Exhibits 32 through 35, the medical examiner testified that State's Exhibit 32 showed the extent of hemorrhage in the tissue underlying the skin of the scalp, that State's Exhibit 33 showed the base of the brain with hemorrhage, that State's Exhibit 34 showed the front of the scalp with incisions to show that the hemorrhages were fresh and recent, and that State's Exhibit 35 showed contusions on Piwko's back. Appellant makes only conclusory arguments that State's Exhibits 32 through 35 were “very gruesome, prejudicial, and highly inflammatory” and repetitive of the medical examiner's testimony. Although the photographs depicting incisions made during the autopsy may have been gruesome, the record gives no indication that the jury would attribute the incisions to the defendant. See Gallo, 239 S.W.3d at 763. Rather, the record reflects that these autopsy photographs depict areas and injuries caused by the defendant's conduct, and any gruesomeness cannot be called “unfairly” prejudicial to the defendant. See Santellan, 939 S.W.2d at 173. We conclude that the trial court did not err in admitting State's Exhibits 10 and 32 through 35. See Tex. R. Evid. 403. Because we find no error, we need not conduct a harm analysis. See Tex. R. App. P. 44.2(b) (errors that do not affect substantial rights must be disregarded). We overrule Appellant's first issue.

Admission of Hearsay Statements of the Deceased

Article 38.36(a) states that

In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.

Tex. Code Crim. Proc. Ann. art. 38.36(a) (West 2005). “The nature of the relationship—such as whether the victim and the accused were friends, were co-workers, were married, estranged, separated, or divorcing—is clearly admissible under this Article.” Garcia v. State, 201 S.W.3d 695, 702 (Tex. Crim. App. 2006). Further, “in some situations, prior acts of violence between the victim and the accused may be offered to illustrate the nature of the relationship.” Id. The admissibility of evidence pursuant to article 38.36 is limited by the Rules of Evidence. See id.; Smith v. State, 5 S.W.3d 673, 679 (Tex. Crim. App. 1999).

Hearsay statements are generally not admissible unless the statement falls within a recognized exception to the hearsay rule. Tex. R. Evid. 802. Rule of Evidence 803 allows a party to introduce into evidence

․ [a] statement of the declarant's then existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of declarant's will.

Tex. R. Evid. 803(3). “[T]he type of statement contemplated by this rule includes a statement that on its face expresses or exemplifies the declarant's state of mind—such as fear, hate, love, and pain.” Garcia v. State, 246 S.W.3d 121, 132 (Tex. App.—San Antonio 2007, pet. ref'd).

Simply because evidence is “prejudicial” does not necessarily mean it is “unfairly prejudicial.” See Robbins v. State, 88 S.W.3d 256, 263 (Tex. Crim. App. 2002). The trial court is presumed to have engaged in the required balancing test once a party objects on the ground of Rule 403 and the trial court rules on the objection unless the record indicates otherwise. See Williams v. State, 958 S.W.2d 186, 195-96 (Tex. Crim. App. 1997). A trial court need not conduct its Rule 403 balancing test on the record. See Santellan, 939 S.W.2d at 173.

We first note that the testimony by Wylie to which Appellant cites in his brief was testimony during the voir dire of the witness that was conducted outside of the presence of the jury. Appellant's brief acknowledges such testimony was outside the presence of the jury, and it was not error for the trial court to consider such testimony. In making a preliminary determination whether evidence is admissible, a trial court is not bound by the rules of evidence. See Tex. R. Evid. 103(a); see also Ford v. State, 305 S.W.3d 530, 535 (Tex. Crim. App. 2009) (citing Granados v. State, 85 S.W.3d 217, 226-28 (Tex. Crim. App. 2002)) (“[A] trial judge is not bound by the rules of evidence in resolving questions of admissibility of evidence, regardless of whether those questions are determined in a pre-trial hearing or at some time during trial.”).

Appellant also cites to the reporter's record where Henderson testified before the jury and explained that she noticed Piwko's appearance changed somewhere between January and March of 2015. Appellant provides no argument concerning why the trial court erred in admitting such testimony. See Tex. R. App. P. 38.1(i).

Even assuming that other portions of Wylie's and Henderson's testimony before the jury included the hearsay statements about which Williams complains, we find no error. The jury charge included the following limiting instructions:

You are instructed that it is your duty to consider the evidence of all relevant facts and circumstances surrounding the death and the previous relationship, if any, existing between the accused and Andrea Piwko together with all relevant facts and circumstances going to show the condition of the mind of the defendant at the time of the alleged offense. You are instructed that evidence was admitted that Andrea Piwko told others that the defendant had struck her. You may only consider such evidence if you believe from the evidence beyond a reasonable doubt that Andrea Piwko actually made the statements. You are further instructed if you believe beyond a reasonable doubt that Andrea Piwko made such statements then you may only consider them for the fact that the statement was made and not for whether or not the defendant committed the acts asserted in the statements.

Evidence has been introduced that the defendant committed offenses, wrongs or acts, other than that for which he is on trial. You are instructed that you cannot consider such evidence for any purpose unless you first find from the evidence presented beyond a reasonable doubt that the defendant did commit those other offenses, wrongs or acts, if any. Therefore if the State has not proven the defendant's guilt of those other offenses, wrongs or acts, if any, beyond a reasonable doubt, or if you have a reasonable doubt of the defendant's guilt of those other offenses, wrongs or acts, if any[,] you shall not consider such evidence for any purpose.

If you find that the State has proven, beyond a reasonable doubt, the defendant's guilt of those other offenses, wrongs or acts, if any, you may consider them to explain the relationship between the defendant and Andrea Piwko, as well as evidence of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident, in relation to the offense for which defendant is on trial, and you may not consider those other offenses, wrongs or acts, if any, for any other purpose.

We presume the jury followed the court's instruction absent evidence to the contrary. See Elizondo v. State, 487 S.W.3d 185, 208 (Tex. Crim. App. 2016) (citing Reeves v. State, 420 S.W.3d 812, 819 (Tex. Crim. App. 2013)).

Wylie testified that Piwko had told Wylie that Piwko and Williams were not doing well and Piwko stated that Williams hit her. Henderson testified that Piwko did poorly when she was with Williams and that Piwko told her Williams had hit her. With respect to the applicability of article 38.36(a), we conclude that the testimony by Wylie and Henderson relate to and illustrate the nature of the relationship between Piwko and Williams. See Tex. Code Crim. Proc. Ann. art. 38.36(a); Garcia, 201 S.W.3d at 703-04. Additionally, Wylie's and Henderson's testimony of statements by Piwko would have been admissible under the exception outlined in Rule of Evidence 803(3). With respect to Rule 403, we cannot conclude that the probative value of either witness's testimony was substantially outweighed by the danger of unfair prejudice. See Gigliobianco, 210 S.W.3d at 641. Testimony that Williams had struck Piwko in the past was no more inflammatory or prejudicial than the evidence that he struck Piwko on the night of her murder. See Chavez v. State, 399 S.W.3d 168, 173 (Tex. App.—San Antonio 2009, no pet.). Finally, any potential prejudice was diminished by the trial court's limiting instruction. See Garcia, 201 S.W.3d at 704.

The record in this case does not suggest that the jury had reasonable doubt that Appellant murdered Piwko but convicted him anyway based on the evidence of the alleged hearsay statements and complained-of testimony of Wylie and Henderson. See Garcia, 201 S.W.3d at 704; cf. Robbins, 88 S.W.3d at 263 (no Rule 403 error to admit evidence of previous injuries the victim suffered while in defendant's care, and no reason to believe the jury had reasonable doubt concerning defendant's guilt but convicted based on relationship evidence). Finding no error, we overrule Appellant's second and third issues.

Having overruled all of Appellant's issues, we affirm the judgment of the trial court.

AFFIRMED.

FOOTNOTES

1.   Appellant's brief refers to State's Exhibits 109, 110, and 111 in passing. The record does not show that Williams objected to these three exhibits at trial; consequently, he has waived error for appeal. See Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a).

LEANNE JOHNSON Justice