                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-16-00062-CR



          JAY WARREN ARNOLD, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 54th District Court
              McLennan County, Texas
             Trial Court No. 2013-08-C2




      Before Morriss, C.J., Moseley and Burgess, JJ.
        Memorandum Opinion by Justice Burgess
                                    MEMORANDUM OPINION
        A jury convicted Jay Warren Arnold of family violence aggravated assault and aggravated

kidnapping. For each offense, the trial court sentenced Arnold to sixty years’ imprisonment and

ordered him to pay a $10,000.00 fine. On appeal, Arnold argues that the trial court erred in

admitting an audio/video recording of his pre-arrest detention because (1) it was irrelevant and

(2) its probative value was substantially outweighed by a danger of unfair prejudice.

        We conclude that the trial court correctly determined that the recording constituted relevant

evidence. We further conclude that the trial court did not abuse its discretion in determining that

the probative value of the video recording was not substantially outweighed by a danger of unfair

prejudice. Accordingly, we affirm the trial court’s judgment.1

I.      Factual Background

        Arnold and his wife, Katie, were having marital problems, and Katie was considering a

divorce. On November 16, 2012, Arnold picked up his three children from school and waited for

Katie to return home from work. According to Katie, after Arnold consumed half of a “large bottle

of rum,” he approached her in a “very aggressive” manner and began arguing with her as soon as

she got home. He then went to the kitchen to pour himself another drink, followed Katie to the

bathroom, closed the bathroom door behind him, and continued arguing with her about their

marriage.




1
 Originally appealed to the Tenth Court of Appeals in Waco, this case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We
follow the precedent of the Tenth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.

                                                       2
        Katie testified, “[Arnold] wanted a commitment that I would stay with him and make [the]

marriage work.” After the argument, Arnold left the bathroom, giving Katie the opportunity to

notice that Arnold had taken her purse, cell phone, and keys. Because Arnold had threatened to

take the children during the argument, Katie gathered them, hid with them in the upstairs bathroom,

and locked the door. When Arnold discovered that they were hiding from him, he became angry

and “busted right through the door.” After letting the children leave, Arnold restrained Katie in

the bathroom, and the two began arguing again. This time, however, Arnold’s rage propelled him

to physical violence.

       Katie testified that Arnold pushed her against the bathroom wall, causing her to fall into

the tub. After she fell, Arnold told Katie that he was going to leave with the children, causing

Katie to stand up and chase after him. She testified, “By the time I caught up to him, he was

already . . . going through a doorway[,] . . . and he turned and slammed the door into . . . my face

. . . and charged at me, pushing me down on the stairs and getting on top of me.” Katie said that

Arnold grabbed her by both of her wrists, pulled her up two flights of stairs, placed her in a

headlock, and dragged her to the garage while she was “kicking, screaming, clawing, [and]

fighting.” Katie testified that Arnold grabbed a spool of wire, pushed her against an exposed stud,

and wrapped the wire tightly around her neck several times “like a bread tie” so that she was

restrained to the stud by her neck.

       Katie was choking and thought she was going to die. She testified, “[E]verything started

to fade out and got . . . black . . . I feel like I went somewhere else.” As she was on the verge of

death, Arnold loosed the wire noose, and Katie regained consciousness. Katie decided to tell

                                                 3
Arnold “whatever he wanted to hear” in order to calm him down. Arnold calmed down, and he

agreed to allow Katie, who was bloodied and had urinated on herself, to shower.

       Arnold followed Katie to the bathroom, undressed her, and got in the shower with her.

According to Katie, Arnold said, “[I]f I was this terrible person that you make me out to be, then

I could take you right now.” After they were finished showering, Katie told the children that she

was going to make them dinner, but Arnold told the children to get in the car so he could take them

out to eat. Weighing her options, Katie let Arnold leave with the children so she could use an

emergency cell phone hidden in her son’s room to dial 9-1-1.

       T.J. Rhudy, who was the supervisor for the Waco and McClennan County emergency

services dispatch, answered the emergency call. Katie reported:

       My husband has been drinking. He’s pulled me and drug me around the house,
       pushed me into the tub . . . . He took me outside to the garage. He tied wire around
       my neck and choked me with it until I passed out. He did end up walking off and
       I was able to get out of it. And now he’s taken my three kids in the car to go take
       them to get something to eat because he thinks that I’m okay and I’m not going to
       do anything. So he’s driving and he’s been drinking and he’s got my kids in the
       car.

During the call, Katie told Rhudy that she thought Arnold was going to kill her. She added, “He’s

had a lot to drink.”

       Rebecca Mabry, a deputy with the McLennan County Sheriff’s Office, arrived at the

Arnold’s home to assist Katie. Mabry immediately noticed marks on Katie’s neck, bruising on her

feet, carpet burns on her back, and a one-inch cut on her forehead. In detail, Katie explained the

assault to Mabry, who testified that Katie’s injuries were consistent with her statement. According

to Mabry, Katie also told her “[t]hat she was seconds away from death.”

                                                4
       In accordance with the State’s indictment, the trial court charged the jury on the aggravated

kidnapping count in the following manner:

       Now, if you find from the evidence beyond a reasonable doubt that on or about the
       16th day of November, 2012, in McLennan County, Texas, the Defendant, Jay
       Warren Arnold, did then and there, with the intent to facilitate the commission of a
       felony, to-wit: Driving While Intoxicated with a Child Passenger or to facilitate
       the flight after the attempt or commission of said felony and/or inflict bodily injury
       on Katie Arnold and/or terrorize Katie Arnold, intentionally and knowingly abduct
       Katie Arnold by restricting the movements of said Katie Arnold without her consent
       so as to interfere substantially with her liberty, by moving her from one place to
       another and/or confining her, with the intent to prevent her liberation, by secreting
       or holding her in a place where she was not likely to be found . . . .

       ....

       . . . then you will find the Defendant guilty of Aggravated Kidnapping, as charged
       in Count II of the indictment.

The jury found Arnold guilty on this count and the family violence aggravated assault count.

II.    Analysis of Arnold’s Points of Error on Appeal

       A.      Standard of Review

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

Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Abuse of discretion occurs only

if the decision is “so clearly wrong as to lie outside the zone within which reasonable people might

disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008); Montgomery v. State,

810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g). We may not substitute our own

decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

We will uphold an evidentiary ruling if it is correct on any theory of law applicable to the case.

De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

                                                 5
        B.       Procedural History

        During a pretrial hearing, Arnold explained to the trial court that he had Crohn’s disease

and Hashimoto’s syndrome and that he intended to employ a strategy arguing that his medical

problems caused his cognitive impairment on the date of the offense, rather than voluntary

intoxication. He also requested that he be allowed to introduce evidence of his medical condition

because “it would be relevant to bias, motive, [and] his state of mind.” He continued, “[W]e expect

it will be part of our defense that part of the reason she made some of these claims is because she

was fed up with his medical problems, [and] that she wanted to get rid of him.”

        During his opening statement, Arnold told the jury that his health problems, which caused

cognitive impairment, “continued to be a strain and a tension in [his] relationship” with Katie, that

she had already planned to divorce him, and that she was exaggerating and making up allegations

because she wanted custody of the children. Arnold further stated that Katie’s claims that he had

been drinking all day were false.2

         The jury then heard testimony from Rhudy and Mabry and listened to the 9-1-1 call, which

provided evidence of Arnold’s assault on Katie and his level of intoxication when he drove away

with the children. During Mabry’s cross-examination, Arnold elicited testimony that Mabry would




2
 He further argued:
         You’re going to hear evidence from the police that no field sobriety tests were conducted in this
         cause, that normally when someone is arrested for driving while intoxicated that the police would
         do the eye test, they would do the walk-the-line test where someone is asked to walk the line and
         they would ask the person to hold one leg up. They didn’t even try to conduct those tests in this
         case. . . . You’re not going to get that because the police didn’t even think it was important enough
         to get it.
These statements drew an objection from counsel, who characterized the statement as an argument. The trial court
sustained the objection and instructed the jury to disregard the statements.
                                                       6
conduct field-sobriety tests if she suspected someone of driving while intoxicated (DWI), as long

as the suspect was cooperative. She also said that she would try to obtain either a blood or breath

sample.

       The State’s next witness was Jose Orozco, a sergeant with the Hillsboro Police Department

and the officer who detained Arnold in Hillsboro until McLenann County Police arrived to arrest

him. Before Orozco took the stand, Arnold, who was aware that the State would attempt to

introduce the recording of his arrest, objected to its introduction on the ground that it was irrelevant

“under [Rule] 403.” In response, the State argued that the recording was relevant because

intoxication was an issue in the case and that the recording demonstrated both that Arnold was

intoxicated and that he was driving while intoxicated with children in the car. The trial court

initially sustained the objection because it had not heard any testimony from Orozco.

       When Orozco took the stand, he testified that he spotted the vehicle Arnold had been

driving parked in a Braum’s parking lot and made contact with Arnold, who was still seated in the

vehicle with the children. Orozco detained Arnold for a little over an hour until McLennan County

deputies arrived on the scene. He testified, “From the moment that . . . we approached him, we

detected a smell of alcoholic beverage coming from his person or the vehicle. Also, the way he

was talking was a slurred speech, an argument the whole time we were with him.” Without

objection, Orozco made clear to the jury that Arnold was intoxicated, uncooperative, and

belligerent. Orozco also testified that despite his instructions, Arnold would not get inside the

patrol car, even after officers attempted to push him into it.



                                                   7
       When the State offered the recording of the detention, Arnold objected on the bases that it

was irrelevant and inadmissible under Rule 403 of the Rules of Evidence. The trial court overruled

Arnold’s objections, and the recording was admitted and played for the jury.

       C.      The Trial Court Did Not Abuse Its Discretion in Overruling Arnold’s
               Relevance Objection

       In his first point of error on appeal, Arnold argues that the trial court erred in overruling

his relevance objection because his “conduct during detention [did] not make it more or less

probable that he kidnapped and assaulted Katie.” However, Arnold’s conduct during detention

was directly relevant to a main issue in the case.

       Kidnapping becomes aggravated when a person “abducts another person with the intent to:

. . . facilitate the commission of a felony.” TEX. PENAL CODE ANN. § 20.04(a)(3) (West 2011).

The State alleged, among other manners and means, that Arnold committed aggravated kidnapping

by abducting Katie with the intent to facilitate the felony offense of driving while intoxicated with

a child passenger. Arnold’s uncooperative, belligerent conduct and manner of speech during the

detention made it more probable that he committed the kidnapping to facilitate the commission of

driving while intoxicated with a child passenger, a felony. Simply put, his conduct during

detention was relevant since it spoke directly to a finding that the jury was asked to make.

       Moreover, even assuming that the video recording was not directly relevant as proof of

intoxication, “[e]vidence that is otherwise inadmissible may become admissible when a party

opens the door to such evidence.” Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009).

“A party opens the door by leaving a false impression with the jury that invites the other side to

respond.” Id. During opening statements, Arnold argued to the jury that Katie’s allegations were
                                                 8
fabricated. He told the jury that his actions could be explained by his medical conditions and that

Katie was lying about his intoxication because she wanted to obtain custody of the children during

their pending divorce.3 Such an opening statement “opens the door to the admission of extraneous-

offense evidence . . . to rebut the defensive theory presented in the defense opening statement.”

Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008). Therefore, the recording was also

relevant to rebut Arnold’s defensive theory that he was not intoxicated by alcohol and his

accusation of fabrication.

        We cannot say that the trial court abused its discretion in concluding that the video

recording of Arnold’s detention constituted relevant evidence. Accordingly, we overrule Arnold’s

first point of error.

        D.       The Trial Court Did Not Abuse Its Discretion in Overruling Arnold’s Rule 403
                 Objection

        In his second point of error, Arnold argues that the recording was unfairly prejudicial

because it showed him “acting belligerently and disobeying, threatening, taunting and cursing at

the officers.” We disagree.

                 1.       Standard of Review

        Rule 403 provides that relevant evidence may be excluded “if its probative value is

substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing

issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” TEX. R.




3
 He also questioned Mabry about field-sobriety testing and was prepared to argue that intoxication by alcohol could
not be established in the absence of such testing.
                                                        9
EVID. 403. In determining whether the trial court abused its discretion in admitting evidence over

a Rule 403 objection, we consider the following factors:

       “(1) the inherent probative force of the proffered item of evidence along with (2) the
       proponent’s need for that evidence against (3) any tendency of the evidence to
       suggest decision on an improper basis, (4) any tendency of the evidence to confuse
       or distract the jury from the main issues, (5) any tendency of the evidence to be
       given undue weight by a jury that has not been equipped to evaluate the probative
       force of the evidence, and (6) the likelihood that presentation of the evidence will
       consume an inordinate amount of time or merely repeat evidence already admitted.”

Smith v. State, 424 S.W.3d 588, 594–95 (Tex. App.—Texarkana 2013, no pet.) (quoting

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006)). When considering these

factors, we are to keep in mind that

       Rule 403’s “use of the word ‘may’ reflects the draftsman’s intent ‘that the trial
       judge be given a very substantial discretion in “balancing” probative value on the
       one hand and “unfair prejudice” on the other, and that he should not be reversed
       simply because an appellate court believes that it would have decided the matter
       otherwise.’”

Powell v. State, 189 S.W.3d 285, 288 (Tex. Crim. App. 2006) (quoting Manning v. State, 114

S.W.3d 922, 926 (Tex. Crim. App. 2003)).

               2.     Analysis

       In this case, Arnold argues that the probative value of the recording was substantially

outweighed by a danger that the jury would base its decision on the belligerent nature Arnold

demonstrated on the recording. As for the first factor, Arnold argues that the video recording was

not probative of whether he kidnapped and assaulted Katie. Arnold’s argument ignores the fact

that the jury could consider Katie’s kidnapping to be aggravated if the evidence established that

the kidnapping was committed with the intent to facilitate driving while intoxicated with a child

                                                10
passenger. Because the recording demonstrated that Arnold was intoxicated immediately after he

had driven himself and his children to the restaurant and, therefore, was evidence that he was

driving while intoxicated with child passengers, it was directly probative of the aggravating

element of the State’s kidnapping case.

       As for the second factor, Arnold argues that because “the State had ample evidence,” it had

no need for the recording. We disagree. In addition to the video recording containing evidence of

Arnold’s intoxication, it also assisted the State with rebutting Arnold’s argument (1) that Katie

was lying about his intoxication and (2) that he was acting in the manner shown on the recording

due to his medical condition.       Although the evidence involved the same topic as the

witness’testimony, it was the only evidence which allowed the jury to witness Arnold’s demeanor

in “real time.” Consequently, the State needed the video in addition to the witness testimony.

       Arnold asserts that the third, fourth, and fifth factors weighed against admitting the

recording because it encouraged the jury to decide the case on an improper basis and confused the

jury. Specifically, he asserts that “[a]lthough Appellant’s behavior during detention had nothing

to do with the alleged assault and kidnapping of Katie, the jury hearing Appellant cursing at,

threatening, and taunting law enforcement undoubtedly left a strong and negative impression on

the jury.” However, as noted above, the recorded depiction of his treatment of the officers tended

to corroborate the witnesses’ testimony regarding his previous actions towards Katie. Also, the

recording allowed the jury to assess his demeanor at the relevant time period in order to determine

the veracity of his testimony that Katie was lying about his alcohol consumption and that his

actions resulted from a medical condition rather than alcohol. Therefore, the video did not have a

                                                11
tendency to confuse the jury or encourage them to decide the case solely based on his conduct

towards the officers, but instead assisted them in weighing and evaluating the believability of the

witness testimony.

        Finally, the recording was also short in duration, and its presentation did not consume an

inordinate amount of time. And, because the recording was the only “real time” evidence of

Arnold’s demeanor, it did not repeat evidence which had already been admitted. Therefore, the

sixth factor is neutral.

        In summary, the probative force of the audio/video recording and the State’s need for it

both weigh in favor of admission, and the remaining factors are neutral. Consequently, we cannot

conclude that the trial court abused its discretion in determining that the probative value of the

video recording was not substantially outweighed by the danger of unfair prejudice. We overrule

Arnold’s second point of error.

III.    Conclusion

        We affirm the trial court’s judgment.




                                                Ralph K. Burgess
                                                Justice
Date Submitted:            October 20, 2016
Date Decided:              November 29, 2016

Do Not Publish




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