Jason Caine Stewart v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00646-CR

Jason Caine Stewart, Appellant

v.

The State of Texas, Appellee

FROM THE 207TH DISTRICT COURT OF HAYS COUNTY
NO. CR-20-2837-B, THE HONORABLE TRACIE WRIGHT-RENEAU, JUDGE PRESIDING

MEMORANDUM OPINION

A jury found Jason Caine Stewart guilty of violation of a protective order two or

more times within twelve months. See Tex. Penal Code § 25.072(e). The court assessed his

sentence at seven years in prison. Appellant contends that he received ineffective assistance of

counsel and that the trial court improperly denied his request to strike a potential juror for cause,

abused its discretion in admitting unauthenticated photographs of texts and phone calls

purportedly from Appellant, and abused its discretion by admitting irrelevant testimony

regarding Appellant’s behavior after the offense. We will affirm the judgment.

BACKGROUND

Sara 1 testified that she met Appellant in 2012. She recounted a series of events

that she described as abusive and controlling, including physical restraint, monetary control, and

monitoring. She testified that many of these behaviors combined on June 14, 2020, in an

1
“Sara” is a pseudonym for the complaining witness.
incident charged as an assault with family violence as a repeat offender. Appellant was arrested

and, for a time, jailed.

Sara obtained an emergency protective order that prohibited Appellant from

communicating directly with Sara in a threatening or harassing manner. Sara testified that, upon

his release from jail, Appellant started repeatedly calling her and was angry, which she said

aggravated and tormented her. She said she started answering to gauge her level of safety. She

also let him talk to their children. Sara testified that he called her “often” between June 15 and

June 26. The court admitted photos of her contact history showing a text exchange in which

“Jason” pleads with her not to divorce him, and she rejects that request and a list of phone calls

that includes several calls from “Jason Stewart” over the course of two days. These photos were

taken by law enforcement.

She eventually was granted a lifetime protective order and moved to Corpus

Christi to get away from Appellant. But Appellant would not stay away and was arrested for

violating the lifetime protective order in 2022. She filed for divorce in 2020, and it was granted

in 2022. She testified that she was afraid to come to court.

Appellant testified that he called Sara only to talk to the children. He denied

threatening suicide or threatening her. He denied controlling her money, taking her phone,

pulling a gun, grabbing her hair, or following her to Corpus Christi. On cross-examination, the

following exchange occurred regarding Appellant’s interaction with Hays County Deputy Sheriff

Halstead, who responded to Sara’s 911 call on June 14, 2020:

A. I asked him what she said, yes.

Q. And he doesn’t tell you, right?

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A. No, he did not.

Q. But even though he doesn’t tell you, you slip and you say, “She’s telling you
all this stuff like I grabbed her by the arm or something,” right?

A. She—when I heard them talking on the porch through the Ring, I heard her
say that I had grabbed her by the arm.

Q. We can play that if you want, but that’s not on there.

A. Yeah. Well, I had heard him say that when they were on the Ring.

Q. We have a recording of that. It is not on there. Would that surprise you?

A. I guess it wouldn’t, no.

There was an emergency protective order in June 2020 and a second protective

order signed on August 25, 2021. Appellant did not appear at that hearing and said he learned of

that order in December 2021. He said he was never served with a copy of the lifetime protective

order and was in denial about the divorce when recorded on phone calls saying, “Fuck that order,

I don’t give a fuck about that order.” He admitted that he called despite knowing an order

prohibited him from communicating with her. He pleaded guilty to violating the protective order

in Nueces County.

Appellant was convicted of assaulting Sara on or about June 14, 2020, and of

violating the protective order. The court assessed his sentence at seven years in prison. 2

DISCUSSION

Appellant contends that the trial court improperly denied his request to strike a

juror for cause, that the trial court abused its discretion in admitting unauthenticated photographs

2
This sentence runs concurrently with Appellant’s seven-year sentence for assault with
family violence as a repeat offender, see Tex. Penal Code § 22.01, that was tried with this
offense but appealed separately in Stewart v. State, cause number 03-23-00645-CR.
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of texts and phone calls purportedly from Appellant, and that the trial court abused its discretion

by admitting irrelevant testimony regarding Appellant’s behavior after the offense. He also

contends that he did not receive effective assistance of counsel.

I. The trial court did not abuse its discretion during voir dire by denying the motion to
strike a panelist for cause.

Appellant contends that the trial court erred by denying his motion to strike for

cause a panelist who agreed with the statement, “I’m just not the right [person] for family

violence, violation of a protective order” case. The State contends that he failed to preserve the

error for review and that he failed to show error.

To preserve error in the denial of a challenge for cause, the defendant must (1) use

a peremptory strike against the prospective juror upon whom the challenge for cause had been

made, (2) exhaust his peremptory strikes, and (3) request an additional peremptory strike to use

upon a specifically identified objectionable prospective juror, who, because the extra strike was

denied, actually sits on the jury. Nava v. State, 415 S.W.3d 289, 305 (Tex. Crim. App. 2013). If

a trial judge errs in overruling a challenge for cause, then a defendant is harmed if forced to use a

peremptory strike to remove the venire member and thereafter suffers a detriment from the loss

of the strike. Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010).

A trial judge’s ruling on a challenge for cause may be reversed only for a clear

abuse of discretion. Id. When reviewing a trial court’s decision to deny a challenge for cause,

we look at the entire record to determine if there is sufficient evidence to support the ruling. Id.

The test is whether a bias or prejudice would substantially impair the venire member’s ability to

carry out the juror’s oath and judicial instructions in accordance with the law. Id. The proponent

of a challenge for cause has the burden of establishing that the venire member understood the

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requirements of the law and could not overcome his or her prejudice well enough to follow the

law. Id. We review a trial court’s ruling on a challenge for cause with considerable deference

because the trial judge is in the best position to evaluate a venire member’s demeanor and

responses. Id. When a venire member’s answers are vacillating, unclear, or contradictory, we

accord particular deference to the trial court’s decision. Id.

Appellant has neither preserved the issue for review nor shown error. The

panelist he wanted struck for cause was not empaneled, but the record does not show whether

Appellant had to use a peremptory strike against her, nor does it contain any request for an

additional peremptory strike that was denied. Further, Appellant has not stated which

objectionable juror he was compelled to accept. The error is not preserved. See Nava,

415 S.W.3d at 305.

Moreover, the panelist was rehabilitated. Though she originally said she was

“just not the right [person]” for a family violence case, when asked, “Do you believe you can

render a verdict based only on those facts and law provided to you and set aside what happened

in your past to you or anyone else?” she replied, “I think I could, yes, I guess.” When pressed

for a yes-or-no answer, she replied, “Yes, I could put aside all that. Personally, I don’t think I

would want somebody like me to do that, but, yes, I think I could.” When asked by the court if

her issue related to domestic violence was so significant that some of her personal feelings

“would bleed into it in a way that would not allow you to give the Defendant a fair shake?” she

replied, “No, I don’t think so. It happened so long ago.” The court denied the request to strike

her for cause. Given the panelist’s vacillation that landed on the side of fairness toward

Appellant, we conclude that the requisite deference to the trial court’s decision would require

that we find no error shown even the issue had been preserved. See Westbrook v. State,

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846 S.W.2d 155, 160-61 (Tex. App.—Fort Worth 1993, no pet.) (holding trial court did not err

by denying challenge for cause because prospective juror was rehabilitated upon further

questioning by prosecutor and trial court).

II. The trial court did not abuse its discretion by admitting evidence of
telecommunications and actions after the violation of the 2020 protective order.

Appellant contends that the trial court erred by admitting unauthenticated

photographs of texts and phone calls purportedly from Appellant and by admitting irrelevant

testimony about his behavior after the violation of the 2020 protective order.

We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). An abuse of

discretion does not occur unless the trial court acts arbitrarily or unreasonably or without

reference to any guiding rules and principles. State v. Lerma, 639 S.W.3d 63, 68 (Tex. Crim.

App. 2021). We must uphold the trial court’s ruling unless the determination “falls outside the

zone of reasonable disagreement.” Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App.

2016). An evidentiary ruling will be upheld if it is correct on any theory of law applicable to the

case. Henley v. State, 493 S.W.3d 77, 93 (Tex. Crim. App. 2016).

A. Authentication

“To satisfy the requirement of authenticating or identifying an item of evidence,

the proponent must produce evidence sufficient to support a finding that the item is what the

proponent claims it is.” Tex. R. Evid. 901(a). Electronic evidence may be authenticated in a

number of different ways. Tienda v. State, 358 S.W.3d 633, 639 (Tex. Crim. App. 2012). The

identity of a person who sent a communication from a cell phone can be shown if a witness

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testifies that a message came from a phone number known to be associated with the purported

sender, though there is the possibility that someone other than the phone owner is responsible for

any particular message. Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015). Printouts

of emails, internet chat room dialogues, and cellular phone text messages have all been admitted

into evidence when sufficiently linked to the purported author so as to justify submission to the

jury for its ultimate determination of authenticity. Tienda, 358 S.W.3d at 639. However, that an

email on its face purports to come from a certain person’s email address, that the respondent in

an internet chat room dialogue purports to identify himself, or that a text message emanates from

a cell phone number assigned to the purported author is not, without more, sufficient to support a

finding of authenticity. Id. 642. The trial court’s determination of whether the proponent has

met this threshold requirement is subject to review for an abuse of discretion and should not be

countermanded so long as it is within the zone of reasonable disagreement. Butler, 459 S.W.3d

at 600. This is a “liberal standard of admissibility.” Id.

During Sara’s testimony, the court admitted photographs of a phone screen

showing text messages sent by “Jason”—according to the screen banner—that she identified as

being from Appellant. The first message stated, “Please don’t divorce me [Sara]. Please, I love

you so much and I can’t live without you and the kids.” In response to a negative reply, the

sender said he wanted only to see his kids. The other four exhibits were photos of the phone

screen showing a call log with Appellant’s name showing up frequently over a short amount of

time; some of the calls were outgoing from the children to Appellant. Appellant objected that

“we don’t know the phone number that those calls are from. You can put anybody’s name into a

phone and assign it to anything, so there’s no proof that those calls were, in fact, from my

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client.” The court overruled the objection, asserting that Appellant could cross-examine the

witness on such issues.

Sara then testified that law enforcement took the photos of her phone. She said

that the messages were “Jason texting me” from his phone number. She testified that these

messages were sent after he got out of jail and the protective order was in place. She also

testified that some of the calls were harassing calls from Appellant to her, while others were calls

to or from his children. Appellant later cross-examined the witness on when she received the

phone and why it was cracked, but did not touch on whether or how she knew the texts and calls

came from Appellant. When Appellant testified, he was cross-examined on the communications.

He did not deny sending the text messages and commented on the content of one of them.

Appellant admitted making numerous phone calls but testified that they were to the children; for

example, he said that a FaceTime call was him watching a movie with the children between 2

and 4:30 in the morning.

There was no dispute that the photos were authentic photos of Sara’s phone. The

objection was to the authenticity of the information contained in the photos regarding whether

Appellant was the source of the texts and calls. Any potential error in the admission of the

evidence was cured by Sara’s testimony that the texts and calls were from Appellant, which

authenticated the communications sufficiently to justify submission of the evidence to the jury

for an ultimate determination of authenticity. See Tienda, 358 S.W.3d at 639; see Romo v. State,

700 S.W.2d 633, 634 (Tex. App.—Houston [14th Dist.] 1985, no pet.) (holding that error in

premature admission of evidence is cured when later testimony established admissibility). No

abuse of discretion is shown in the admission of these exhibits.

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B. Evidence of acts after the alleged crime

Appellant objected when the State asked why Sara moved to Corpus Christi after

obtaining a lifetime protective order and she responded, “I just wanted away from Jason.” After

the court overruled the objection on grounds that events after the alleged crime can be introduced

to show the nature of the relationship, Appellant obtained a running objection. The court

reminded the jury of an instruction limiting them to considering only extraneous acts they

believed beyond a reasonable doubt occurred; they could use such acts for the limited purpose of

indicating the nature of the relationship between Appellant and Sara.

Appellant refers to evidence that was “not relevant” and “unsubstantiated

allegations sought to be introduced by hearsay.” The court did not err by admitting of evidence

relating to the bail-jumping charge that was eventually waived by the State.

Even if we assume solely for discussion that the court erred by admitting evidence

of the relationship after this offense, we conclude that such admission did not affect the jury’s

view of the elements of the offense for violating the protective order in 2020 in Hays County.

The jury heard Sara’s testimony about the issuance of the protective order; heard her testimony

about the texts and frequent phone calls and how they made her feel aggravated, tormented,

harassed and threatened; and saw the photos she said were taken by law enforcement of texts and

the call log of communications she said were made in June 14-26, 2020. That evidence

established beyond a reasonable doubt the elements of violation of a protective order more than

once during a twelve-month period without reference to and support from evidence of

subsequent actions. See Tex. Penal Code § 25.072(e). We conclude that Appellant failed to

show an abuse of discretion in the admission of the challenged evidence about his actions after

the assault.

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III. The assistance of Appellant’s counsel was not rendered ineffective by the alleged
failures to object to evidence of extraneous offenses or to know the range
of punishment.

Appellant contends that he received ineffective assistance of counsel because his

attorney failed to object to the admission of a stipulation and confession to a prior extraneous

offense of assault with family violence as well as other evidence of Appellant’s long-term

treatment of Sara. He also asserts that trial counsel was ineffective because he did not

understand the full range of punishment.

To prevail on a claim of ineffective assistance of counsel, an appellant must

establish that counsel’s performance was deficient and that he suffered prejudice because of that

deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel’s

performance is deficient if it falls “below an objective standard of reasonableness.” Id. at 688.

An accused is not entitled to entirely errorless representation, and we look to the totality of the

representation in gauging the adequacy of counsel’s performance. Frangias v. State, 450 S.W.3d

125, 136 (Tex. Crim. App. 2013). A single error can rise to the level of deficient performance

“if the error was egregious and had a seriously deleterious impact on the balance of the

representation.” Id. Prejudice exists if an appellant shows “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). An appellant “bears the burden

of proving by a preponderance of the evidence that counsel was ineffective.” Id. at 813. “Claims

of ineffective assistance must be firmly rooted in the record.” Hart v. State, 667 S.W.3d 774, 782

(Tex. Crim. App. 2023).

On direct appeal, there is a “substantial risk of failure” when raising ineffective

assistance of counsel because in most cases, “the record on direct appeal is simply undeveloped

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and cannot adequately reflect the failings of trial counsel.” Thompson, 9 S.W.3d at 813-14. If

trial counsel has not had the chance to explain the reasons for his conduct, an appellate court

“will not conclude the challenged conduct constituted deficient performance unless the conduct

was so outrageous that no competent attorney would have engaged in it.” Garcia v. State,

57 S.W.3d 436, 440 (Tex. Crim. App. 2001). There was no new-trial motion or submission of

evidence regarding trial counsel’s representation.

A. Failure to object to extraneous offenses

Appellant complains that his attorney was deficient for failing to object to the

admission of a stipulation and judicial confession of a prior conviction and of testimony

concerning Appellant’s conduct over the years of his relationship with Sara, including her claims

that he had repeatedly physically abused her, restrained her, stolen her money, stalked her using

tracking devices, and used illegal drugs.

The absence of objection to the admission of the stipulation to the prior

conviction in cause number C-1-CR-04-684627 was not deficient. The stipulation is evidence

and relevant to the offense charged. See Hollen v. State, 117 S.W.3d 798, 802 (Tex. Crim. App.

2003) (finding no error in admission of stipulation to prior convictions). Though it did not bear

on the protective-order violation, it was an element of the assault offense applied to a repeat

offender. Appellant offers no reason that stipulating to a prior conviction was not sound trial

strategy. There is no showing that the stipulation harmed him by conceding an element of the

offense that the State could not have proved.

The absence of objection to the evidence of extraneous offenses in Appellant’s

interactions with Sara is a matter of trial strategy about which we have no information. Evidence

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of other crimes, wrongs, or other acts is not admissible to prove character and show that

Appellant acted in conformity with that character when assaulting Sara. Tex. R. Evid. 404(b)(1).

But it is admissible to show motive, opportunity, intent, preparation, knowledge, identity,

absence of mistake, or lack of accident. Id. R. 404(b)(2). Relevant evidence can be excluded if

its probative value is substantially outweighed by the risk of unfair prejudice, confusion of

issues, or misleading of the jury. Id. R. 403. We do not know how the trial court would have

ruled on a Rule 404(b) objection, but its decision to admit such evidence would have been

subject to abuse-of-discretion review and treated with deference. See Montgomery v. State,

810 S.W.2d 372, 393-94 (Tex. Crim. App. 1990) (finding no abuse of discretion in trial for

indecency with child from admission of evidence that defendant quite frequently walked nude

with erections around his children). We do not know why Appellant’s trial counsel did not

object on these bases. Perhaps he did so to avoid alienating the jury or judge with repeated

objections to evidence that might be admitted under Rule 404(b)(2) to show intent, absence of

mistake, or lack of accident. See id. R. 404(b)(2). Because it is unclear why Appellant’s trial

counsel opted not to object to this evidence, we are not persuaded that Appellant has shown

deficient performance.

Further, Appellant has not shown a reasonable probability that, but for counsel’s

alleged unprofessional errors, the result of the proceeding would have been different. See

Thompson, 9 S.W.3d at 812. The evidence that Appellant violated the protective order at least

twice during a twelve-month period was not seriously disputed. The jury heard Sara’s testimony

about the issuance of the protective order; heard her testimony about the texts and frequent

phone calls and how they made her feel aggravated, tormented, harassed, and threatened; and

saw the photos she said were taken by law enforcement of texts and the call log of

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communications she said were made in June 15-26, 2020. Appellant emphasized his focus on

communicating with his children during the calls and downplayed Sara’s testimony about their

conversations. But the evidence overall established the elements of violation of a protective

order more than once during a twelve-month period without regard to any deficient counsel

performance allowing the admission of evidence of subsequent actions. See Tex. Penal Code

§ 25.072(e). We are not persuaded that Appellant has shown that the result of the violation-of-

protective-order case would have been different had his trial counsel objected to and the trial

court excluded all evidence outside of Appellant’s actions on June 14-26, 2020, that was directly

relevant to the assault and violation of the protective order.

B. Knowledge of range of punishment

Appellant contends that his trial counsel was ineffective because he applied for

Appellant to be placed on community supervision even though Appellant’s prior felony

conviction rendered him ineligible.3 In closing argument at the punishment phase, Appellant’s

counsel said, “Judge this man deserves a chance on probation. The one time he had probation he

successfully completed it.” Trial counsel argued that Appellant was not the “horrible, horrible

monster” that the State portrayed him to be.

However, despite the State’s insistence in closing that Appellant was not eligible

for judge-awarded community supervision, he was. He was sentenced to less than ten years in

prison but not for any of the disqualifying offenses. See Tex. Code Crim. Proc. arts.

42A.053-.054. Contrary to Appellant’s contention, trial counsel correctly stated the range of

3
At the punishment phase, Appellant stipulated that he had been convicted of “the State
Jail offense of Credit Card Abuse.”
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punishment and his eligibility for community supervision. Trial counsel’s argument for an

available remedy did not show deficient performance.

We find no evidence in the record that Appellant’s trial counsel’s application for

community supervision rendered his performance harmfully deficient.

C. Total representation

We have reviewed the record of trial counsel’s overall representation and

conclude that Appellant has not shown that his counsel’s performance was deficient or that he

has suffered prejudice because of any deficient performance. Strickland, 466 U.S. at 687.

CONCLUSION

We affirm the judgment of conviction.

__________________________________________
Darlene Byrne, Chief Justice

Before Chief Justice Byrne, Justices Theofanis and Ellis

Affirmed

Filed: August 28, 2025

Do Not Publish

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