                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00329-CR


LEONARDO OVIEDO                                                     APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                        MEMORANDUM OPINION1

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      Appellant Leonardo Oviedo appeals his conviction for intentionally or

knowingly causing bodily injury to an elderly person.2 In one point, he argues

that the trial court erred by overruling his Texas Rule of Evidence 403 objection

to State’s Exhibit 1, which contained recordings of 911 calls made by eye

witnesses to appellant’s crime. We affirm.

      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 22.04(a), (c)(2), (f) (West Supp. 2012).
                                Background Facts

      On New Year’s Eve 2010, appellant, his sister Diana, his mother, and his

elderly father attended a party hosted by Gerado Perez. Appellant had been

drinking alcohol that night. According to Diana, when appellant arrived at the

party, she told him not to “start problems.”

      After midnight, appellant, who is a member of the Varrio Centro gang, and

several other people got into an argument outside of the party hall. Appellant

removed his shirt and displayed gang signs with his hands, instigating a fight.

Diana and appellant’s father attempted to extricate appellant from the tumult, but

he refused. Appellant threw Diana to the ground multiple times as he continued

to participate in the fight. Appellant also hit his father, the victim, in the face,

knocking him to the ground. Appellant’s father temporarily lost consciousness

and suffered a broken arm; he eventually received treatment at a hospital.3

      When appellant initiated the fight, Diana called 911 to seek assistance. In

the background of the recording of Diana’s 911 call, appellant can be heard

saying, “Me and you, one-on-one,” and attempting to continue fighting.4 Diana


      3
       Appellant testified to a different version of the facts. He said that after he
had tried to speak with a girl at the party, someone became offended, and a
group of people “jumped” him although he did not want to fight. Appellant stated,
“I pushed my dad out of the way . . . . And when I looked back, I [saw] my dad
on the floor. . . . [I] wasn’t trying to hurt him. I was just trying to get him out of
the way.” Appellant denied punching his father.
      4
      In her testimony, Diana identified appellant’s voice as the one stating, “Me
and you, one-on-one.”


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can also be heard imploring appellant to leave the fight and to get in her car.

Perez called 911 to report the fight as well. He said that a man had been injured

and was lying on the pavement. The police arrived, removed appellant from

Diana’s car, determined that he was intoxicated, and arrested him.

      In a two-count indictment, a grand jury indicted appellant, respectively, for

intentionally or knowingly causing bodily injury to an elderly person and for

recklessly causing bodily injury to an elderly person. Appellant pled not guilty to

both counts. Each side presented witnesses, and the State played the recorded

911 calls for the jury. The jury found appellant guilty of intentionally or knowingly

causing bodily injury to an elderly person, and as instructed in the jury charge,

the jury did not therefore consider whether he was guilty of recklessly causing

bodily injury to an elderly person.           The trial court assessed appellant’s

punishment at six years’ confinement. Appellant brought this appeal.

                         The Admission of the 911 Calls

      In his sole point, appellant asserts that the trial court erred by admitting the

911 calls over his objection because their probative value was substantially

outweighed by the danger of unfair prejudice under rule of evidence 403.5

      Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. In

      5
        Appellant challenges the general admissibility of State’s Exhibit 1, which
contained two 911 calls, but appellant does not separately analyze the
admissibility of each call. We will consider the admissibility of the calls
collectively.


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reviewing a trial court’s balancing of the probative value and potential for unfair

prejudice under rule 403, we reverse only upon a clear abuse of discretion.

Rachal v. State, 917 S.W.2d 799, 808 (Tex. Crim. App.), cert. denied, 519 U.S.

1043 (1996); Price v. State, 351 S.W.3d 148, 150, 153–54 (Tex. App.—Fort

Worth 2011, pet. ref’d). The balance is slanted toward admission, not exclusion,

of otherwise relevant evidence. De La Paz v. State, 279 S.W.3d 336, 343 (Tex.

Crim. App. 2009); Price, 351 S.W.3d at 153 (stating that the rules of evidence

carry a presumption that relevant evidence is more probative than prejudicial).

As long as the trial court’s ruling admitting evidence is within the “zone of

reasonable disagreement,” there is no abuse of discretion, and the trial court’s

ruling will be upheld.6 Price, 351 S.W.3d at 150.

      The word “may” in Rule 403 confers substantial discretion on the trial

court. Powell v. State, 189 S.W.3d 285, 288 (Tex. Crim. App. 2006); Conner v.

State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001) (“Rule 403 requires exclusion

of evidence only when there exists a clear disparity between the degree of

prejudice of the offered evidence and its probative value.”). Therefore, it is the

objecting party’s burden to demonstrate that the probative value is substantially

outweighed by the danger of unfair prejudice. Sanders v. State, 255 S.W.3d 754,

760 (Tex. App.—Fort Worth 2008, pet. ref’d) (citing Hinojosa v. State, 995

      6
       The trial court is not required to perform the balancing test on the record,
and when the record is silent, we presume that the trial court performed the
appropriate balancing test. Williams v. State, 958 S.W.2d 186, 195–96 (Tex.
Crim. App. 1997).


                                        4
S.W.2d 955, 958 (Tex. App.—Houston [14th Dist.] 1999, no pet.)). In balancing

the probative value against potential prejudice, the court considers how

compellingly the evidence serves to make a fact of consequence more or less

probable and the potential for the evidence to impress the jury in an irrational but

nevertheless indelible way. Powell, 189 S.W.3d at 287.

      In Estrada v. State, a capital murder case, the court of criminal appeals

held that the prejudice of a recording of a 911 call did not outweigh its probative

value because the recording provided a framework within which the particulars of

the State’s evidence could be developed. 313 S.W.3d 274, 300 (Tex. Crim. App.

2010), cert. denied, 131 S. Ct. 905 (2011). Estrada had been charged with the

capital murder of a seventeen-year-old girl. Id. at 279. The 911 call recorded the

reaction of the victim’s family upon finding her lifeless body. Id. at 300. On

appeal, Estrada argued that the recording was “charged with emotion” and

“grossly prejudicial and inflammatory” because the family members could be

heard screaming and weeping. Id. The court of criminal appeals concluded that

although the recording did not establish any material fact not otherwise proven

within the State’s case, it did establish a framework in which the State’s evidence

could be developed, and it was therefore admissible. Id.; see Munoz v. State,

932 S.W.2d 242, 244 (Tex. App.—Texarkana 1996, no pet.) (holding that a 911

call was admissible because it provided a framework within which the State’s

evidence could be developed); see also Yi v. State, No. 01-05-01147-CR, 2007

WL 2052064, at *4 (Tex. App.—Houston [1st Dist.] July 19, 2007, no pet.) (mem.


                                         5
op., not designated for publication) (“911 tapes are generally admissible, even if

not necessary to establish a material fact, because they provide a framework

within which the State’s evidence may be developed.”). The 911 recording in this

case provided a framework in which the State’s evidence could be developed

because it substantiated Diana’s testimony that she attempted to persuade

appellant to stop fighting and because it weakened appellant’s testimony that he

did not want to fight. See Estrada, 313 S.W.3d at 300.

      Furthermore, in Sierra v. State, we held that a 911 call made by a robbery

victim was not unduly prejudicial. 157 S.W.3d 52, 63 (Tex. App.—Fort Worth

2004) (op. on reh’g), aff’d, 218 S.W.3d 85 (Tex. Crim. App. 2007). In that case,

Sierra had participated in the robbery of a clothing store in which two people

were shot. Id. at 57. A store employee called 911, and although the voices on

the recording were excited and distraught, we held that this would not cause the

jurors to act on emotion rather than evidence. Id. at 63; see also Anderson v.

State, 15 S.W.3d 177, 186 (Tex. App.—Texarkana 2000, no pet.) (holding that a

911 recording of a husband reporting his wife’s murder would not cause the jury

to “act on any basis other than consideration of the evidence presented to

them”).

      In applying the rule 403 balancing factors, we must consider whether the

911 calls serve to compellingly show appellant’s guilt in committing the charged

offense. See Brooks v. State, 833 S.W.2d 302, 304 (Tex. App.—Fort Worth

1992, pet. ref’d) (holding that the probative value of a 911 call from a sexual


                                        6
assault victim outweighed the potential for unfair prejudice in that it established

the victim’s state of mind as a relevant reason as to why she could not identify

her attacker). To convict appellant of count one of his indictment, the jury was

required to find that he intentionally or knowingly caused bodily injury to his

father. See Tex. Penal Code Ann. § 22.04(a). One of the 911 calls at issue

indicates that appellant, contrary to his testimony, wanted to remain in the fight,

and it therefore supports a theory that he hit his father because his father was

trying to get him to stop fighting, rather than to merely get his father out of the

way. That 911 recording demonstrates that appellant was shouting, “Me and

you, one-on-one” and ignoring his sister’s pleas to get away from the fight.7

      Next, we consider the potential for the 911 calls to impress the jury in an

irrational way.   See Powell, 189 S.W.3d at 287.         Although one of the 911

recordings is prejudicial, it is not unfairly so. Diana can be heard shouting at

appellant to stop fighting and attempting, several times, to tell the location of the

disturbance to the 911 operator. Perez can be heard telling the 911 operator that

an old man has been injured and needs an ambulance.              We conclude that

neither of these calls would likely cause a jury to vote based on emotion rather

than the evidence, especially considering that Diana, Perez, and appellant’s




      7
       Appellant appears to concede that the 911 calls had significant probative
value. In his brief, he states that the “jury need not have listened to any other
witness, nor believed any other witness, to convict” him based on the calls.


                                         7
father all testified against appellant about the same events heard in the

recordings.

      Because the 911 recordings provided a framework for the State’s case and

had probative value that was not substantially outweighed by the danger of unfair

prejudice, we conclude that the trial court did not abuse its discretion by admitting

the 911 recordings, and we overrule appellant’s sole point.8 See Rachal, 917

S.W.2d at 808; see also Garcia v. State, 201 S.W.3d 695, 704 (Tex. Crim. App.

2006) (“[W]hen determining whether evidence is admissible under Rule 403, we

do not consider just whether the evidence is more prejudicial than probative, we

consider whether the probative value is substantially outweighed by the danger

of unfair prejudice.”), cert. denied, 549 U.S. 1224 (2007).

                                    Conclusion

      Having overruled appellant’s point, we affirm the trial court’s judgment.



                                                    PER CURIAM

PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

      8
        Appellant appears to also contend that the 911 calls should have been
excluded because they violated his right of confrontation and were hearsay. At
trial, however, appellant did not object to the admission of the calls on those
grounds. Therefore, we hold that he forfeited those arguments. See Tex. R.
App. P. 33.1(a)(1); Lozano v. State, 359 S.W.3d 790, 823 (Tex. App.—Fort
Worth 2012, pet. ref’d); Ricketts v. State, 89 S.W.3d 312, 319 n.1 (Tex. App.—
Fort Worth 2002, pets. ref’d).


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DELIVERED: September 13, 2012




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