Full Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-25-00218-CR ___________________________ SHAWN LEE MCFARLANE, Appellant V. THE STATE OF TEXAS On Appeal from Criminal District Court No. 2 Tarrant County, Texas Trial Court No. 1864355 Before Kerr, Birdwell, and Womack, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION I. INTRODUCTION Appellant Shawn McFarlane appeals his convictions for aggravated kidnapping causing bodily injury, aggravated robbery, aggravated assault of a family member with a deadly weapon, and family-violence assault. McFarlane raises three issues on appeal.1 In his first issue, he contends that the trial court erred by admitting certain extraneous evidence pertaining to the nature of his relationship with the victim because such evidence was irrelevant. In his second and third issues, he contends that his convictions for both aggravated robbery and aggravated assault violated the double-jeopardy clauses in the United States and Texas Constitutions. Because we disagree with McFarlane’s evidentiary challenge but agree with his double-jeopardy complaint, we reverse the trial court’s judgment of conviction on the aggravated- robbery count and affirm the judgments on the remaining counts. 1 McFarlane’s original court-appointed appellate attorney filed an Anders brief and a motion to withdraw. See Anders v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967) (requiring counsel to present a professional evaluation of the record and demonstrate why there are no arguable grounds for appellate relief). Upon initial submission of the appeal, we determined that there was an arguable ground for appeal—namely, whether McFarlane’s convictions for both aggravated robbery and aggravated assault violate double-jeopardy principles—and abated the case to the trial court to appoint new appellate counsel. See In re Schulman, 252 S.W.3d 403, 409 (Tex. Crim. App. 2008). McFarlane’s new appellate attorney filed a brief raising three appellate issues, including the arguable issue identified by this court. 2 II. BACKGROUND In 2022, Margaret McFarlane2 learned that her adult son—McFarlane (i.e., the appellant)—was “in bad shape” and “living behind a dumpster in Dallas.” Feeling that she “couldn’t leave him there,” Margaret agreed to let McFarlane live rent-free in the garage apartment behind her house. Although Margaret tried to help McFarlane “get . . . on his feet” and “get a job,” her efforts were unsuccessful. After several months, McFarlane became verbally abusive. He would frequently become angry and break things around the house, and on at least two occasions, he grabbed Margaret by the throat. In June 2023, Margaret told McFarlane that he needed to move out within thirty days. McFarlane became angry, grabbed Margaret’s phone, and stormed out. Eventually, he returned with a violent look in his eyes and ordered Margaret to get down on the ground. Margaret refused, and a tussle ensued. After the struggle moved from the bedroom to the hallway, McFarlane began to strangle Margaret. He then punched her so hard that she was knocked senseless, and when she regained her mental faculties, she was on the kitchen floor, she could not see, and her hands were zip-tied behind her back. When Margaret tried to crawl away, McFarlane punched her again. Margaret lost consciousness and later awoke in her bedroom with the zip-ties 2 Because the victim and the appellant share the same last name, we will refer to the victim as “Margaret” to avoid confusion. See Brown v. State, No. 02-23-00321-CR, 2025 WL 1840470, at *1 n.1 (Tex. App.—Fort Worth July 3, 2025, no pet.) (per curiam) (mem. op., not designated for publication). 3 removed. After getting Margaret’s debit-card PIN number, McFarlane left the house with her wallet, debit card, and car keys. Taking advantage of McFarlane’s absence, Margaret ran to her neighbor’s house to seek help. Because Margaret’s face was so swollen, her neighbor did not immediately recognize her. The neighbor called 911, and Margaret was taken by ambulance to the hospital where she received treatment for her numerous injuries, including severe bruising, bilateral rib fractures, and a collapsed lung. McFarlane was arrested and indicted for aggravated kidnapping causing bodily injury (Count One), aggravated robbery (Count Two), aggravated assault of a family member with a deadly weapon (Count Three), and family-violence assault (Count Four). See Tex. Penal Code §§ 20.04(a)(4), 22.01(a)(1), (b-3), 22.02(a), (b)(1), 29.03(a). He pleaded not guilty, and a jury trial was held. The jury convicted McFarlane on all four counts and assessed his punishment at sixty years’ imprisonment for Count One, fifty years’ imprisonment for Count Two, life imprisonment for Count Three, and twenty years’ imprisonment for Count Four. The trial court sentenced him accordingly.3 This appeal followed. McFarlane’s sentences are to run concurrently. 3 4 III. DISCUSSION A. Admission of Extraneous Evidence In his first issue, McFarlane contends that the trial court abused its discretion by admitting Margaret’s testimony that he had been living behind a dumpster before moving into her garage apartment because this testimony was irrelevant. We disagree. 1. Standard of Review We review a trial court’s decision to admit or exclude evidence under an abuse- of-discretion standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); James v. State, 623 S.W.3d 533, 541 (Tex. App.—Fort Worth 2021, no pet.). A trial court does not abuse its discretion as long as the decision to admit or exclude evidence is within the zone of reasonable disagreement. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016); Merrick v. State, 567 S.W.3d 359, 375 (Tex. App.—Fort Worth 2018, pet. ref’d). We will uphold the trial court’s correct decision under any applicable legal theory. De La Paz, 279 S.W.3d at 344; Qualls v. State, 547 S.W.3d 663, 675 (Tex. App.—Fort Worth 2018, pet. ref’d). 2. Applicable Law Article 38.371 of the Texas Code of Criminal Procedure—which applies to prosecutions for offenses committed against a member of the defendant’s family or household—expressly allows the admission of “evidence of all relevant facts and circumstances that would assist the trier of fact in determining whether the actor committed the offense . . . , including testimony or evidence regarding the nature of 5 the relationship” between the defendant and the victim. Tex. Code Crim. Proc. art. 38.371(b). “Thus, Article 38.371(b) expressly provides for the admission of extraneous . . . evidence regarding the nature of the relationship between [the victim and the defendant].” Gaulding v. State, No. 02-21-00096-CR, 2022 WL 17986026, at *4 (Tex. App.—Fort Worth Dec. 29, 2022, pet. ref’d) (mem. op., not designated for publication) (first citing James, 623 S.W.3d at 546; and then citing Mourning v. State, No. 02-19-00168-CR, 2020 WL 6165309, at *4–5 (Tex. App.—Fort Worth Oct. 22, 2020, no pet.) (mem. op., not designated for publication)). Evidence offered under Article 38.371 is subject to the Texas Rules of Evidence. See Tex. Code Crim. Proc. art. 38.371(c). Under these rules, evidence is relevant if (1) “it has any tendency to make a fact more or less probable than it would be without the evidence” and (2) “the fact is of consequence in determining the action.” Tex. R. Evid. 401. And “[r]elevant evidence is admissible unless” provided otherwise by “the United States or Texas Constitution,” “a statute,” the evidentiary rules themselves, or “other rules prescribed under statutory authority.” Tex. R. Evid. 402. 3. Analysis McFarlane argues that the trial court abused its discretion by admitting under Article 38.371 Margaret’s testimony that she had found him living behind a dumpster in 2022 because it concerns an event too remote in time to be relevant. But temporal remoteness—in and of itself—does not render evidence irrelevant. See Berg v. State, 6 No. 01-22-00248-CR, 2023 WL 5616200, at *16 (Tex. App.—Houston [1st Dist.] Aug. 31, 2023, pet. ref’d) (mem. op., not designated for publication) (quoting Linder v. State, 828 S.W.2d 290, 297 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d)). “Evidence either has probative value, or it does not.” Newton v. State, 301 S.W.3d 315, 318 (Tex. App.—Waco 2009, pet. ref’d). Thus, while remoteness is a factor when assessing whether an evidentiary item’s probative value is substantially outweighed by the dangers enumerated in Rule 403, it has no bearing on the evidence’s intrinsic relevance.4 See id.; see also Tex. R. Evid. 403 (providing that a “court may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence”). Accordingly, even if we were to accept McFarlane’s contention that the challenged evidence is temporally remote, this would not render such evidence irrelevant. Therefore, McFarlane’s relevance-based evidentiary complaint fails.5 We overrule McFarlane’s first issue. McFarlane did not raise a Rule 403 objection in the trial court, nor does he 4 argue on appeal that the complained-of testimony should be excluded on Rule 403 grounds. 5 Because the record contained other far more probative evidence of McFarlane’s guilt—including Margaret’s detailed account of how he strangled, punched, and zip-tied her—even if we were to assume that the trial court erred by admitting the challenged evidence, such error would not have affected McFarlane’s substantial rights and would therefore be disregarded as harmless. See Tex. R. App. P. 44.2(b); Black v. State, 358 S.W.3d 823, 833 (Tex. App.—Fort Worth 2012, pet. ref’d) (concluding that erroneous admission of hearsay text messages did not have a substantial or injurious effect in light of other evidence of appellant’s guilt). 7 B. Double Jeopardy In his second and third issues, McFarlane contends that his convictions for both aggravated robbery and aggravated assault violated the double-jeopardy clauses in the United States and Texas Constitutions. See U.S. Const. amends. V, XIV; Tex. Const. art. I, § 14. The State concedes the error, and we agree.6 1. Applicable Law and Analysis The double-jeopardy clause, contained within the Fifth Amendment and applicable to the states through the Fourteenth Amendment, protects an accused against a second prosecution for the same offense. U.S. Const. amends. V, XIV; Littrell v. State, 271 S.W.3d 273, 275 (Tex. Crim. App. 2008). In addition to protecting against multiple prosecutions, this provision also protects against multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225 (1977); Ex parte Adams, 586 S.W.3d 1, 4 (Tex. Crim. App. 2019); Speights v. State, 464 S.W.3d 719, 722 (Tex. Crim. App. 2015). The Texas Constitution’s double- jeopardy clause provides similar protections. See Mayhew v. State, 271 S.W.3d 294, 300 (Tex. App.—Beaumont 2008, no pet.) (citing Stephens v. State, 806 S.W.2d 812, 814–15 (Tex. Crim. App. 1990)). 6 Generally, to preserve the error for appellate review, a defendant must raise a double-jeopardy claim in the trial court. Gonzalez v. State, 8 S.W.3d 640, 643–46 (Tex. Crim. App. 2000). McFarlane failed to do so, but this is not fatal to his double- jeopardy claim. Such a claim “may be raised for the first time on appeal when (1) the undisputed facts show the double-jeopardy violation is clearly apparent from the face of the record, and (2) enforcement of the usual rules of procedural default serves no legitimate state interest.” Garfias v. State, 424 S.W.3d 54, 57–58 (Tex. Crim. App. 2014). Both prongs of this test have been satisfied in the present case. 8 A multiple-punishment double-jeopardy violation occurs “when a person is punished for: (1) the same primary offense twice, ‘once for the basic conduct, and a second time for that same conduct plus more,’ or (2) the same criminal act twice under two distinct statutes ‘when the legislature intended the conduct to be punished only once.’” Price v. State, 434 S.W.3d 601, 609 (Tex. Crim. App. 2014) (quoting Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006)). In a multiple-punishments double-jeopardy case, the relevant inquiry is always whether the legislature intended to permit multiple punishments. Loving v. State, 401 S.W.3d 642, 646 (Tex. Crim. App. 2013). Thus, in such a case, we must assess whether an appellant has been “convicted of more offenses than the legislature intended.” Ex parte Milner, 394 S.W.3d 502, 507 (Tex. Crim. App. 2013) (quoting Ervin v. State, 991 S.W.2d 804, 807 (Tex. Crim. App. 1999)); see Ball v. United States, 470 U.S. 856, 861, 105 S. Ct. 1668, 1671–72 (1985). To determine whether a defendant has received multiple punishments for the same offense, courts apply the “same elements” test. See Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932). “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Ex parte Denton, 399 S.W.3d 540, 545–46 (Tex. Crim. App. 2013) (quoting Blockburger, 284 U.S. at 304, 52 S. Ct. at 182). However, even if the offenses have differing elements, this does not end our inquiry. Under the cognate-pleadings approach, a multiple-punishment 9 double-jeopardy challenge may be raised if the same facts are required to prove both offenses as alleged in the indictment. Id. at 546 (quoting Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008)). Here, although the aggravated-robbery and aggravated-assault counts have differing elements,7 they are both predicated on the same factual allegations, namely, that McFarlane caused Margaret bodily injury by striking her with his hand or hands or by pushing her into or against a hard surface. Thus, having been convicted—and punished—for both of these counts, McFarlane suffered a violation of his right against multiple punishments. See Ex parte Denton, 399 S.W.3d at 546–47 (holding that applicant’s punishment for both aggravated robbery and aggravated assault violated his constitutional double-jeopardy protections precluding multiple punishments for the same offense); Wolfe v. State, No. 02-22-00132-CR, 2023 WL 4359788, at *15 (Tex. App.—Fort Worth July 6, 2023, no pet.) (mem. op., not designated for publication) (holding that appellant’s double-jeopardy rights had been violated when he was punished for both aggravated robbery and aggravated assault arising from the same conduct). Accordingly, we sustain McFarlane’s second and third issues. 2. Remedy The remedy for a multiple-punishment double-jeopardy violation is “to retain the most serious offense and vacate the other, the more serious offense ordinarily being defined as the offense for which the greatest sentence was assessed.” Littrell, 7 Compare Tex. Penal Code § 22.02(a), with id. § 29.03(a). 10 271 S.W.3d at 279 n.34; accord Ex parte Denton, 399 S.W.3d at 547. Here, McFarlane’s aggravated-assault conviction—for which he received a life sentence—is the more serious offense because he received a lesser fifty-year sentence for the aggravated- robbery conviction. See Ex parte Denton, 399 S.W.3d at 547; see also Sheppard v. State, No. 12-06-00227-CR, 2007 WL 1267777, at *2 (Tex. App.—Tyler May 2, 2007, pet. ref’d) (mem. op., not designated for publication) (recognizing that a fifty-year sentence is “considerably less severe” than a life sentence). We therefore retain the aggravated-assault conviction (Count Three) and set aside the aggravated-robbery conviction (Count Two). See Ex parte Denton, 399 S.W.3d at 547. IV. CONCLUSION Having sustained McFarlane’s second and third issues and having overruled his first issue, we reverse the trial court’s judgment of conviction on the aggravated- robbery count (Count Two) and render a judgment of acquittal on that count, but we affirm the trial court’s judgments on the remaining counts. /s/ Dana Womack Dana Womack Justice Do Not Publish Tex. R. App. P. 47.2(b) Delivered: October 8, 2026 11