Affirmed and Opinion filed June 20, 2013.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-12-00591-CR

                      RONNIE PAUL KAPPEL, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 396th District Court
                            Tarrant County, Texas
                       Trial Court Cause No. 1255890R

                                  OPINION


      Appellant Ronnie Paul Kappel appeals from his conviction for assault of a
family/household member.       A jury found appellant guilty, and the trial court
determined that he was a habitual offender and sentenced him to life in prison. In
two issues, appellant contends that the trial court erred in admitting certain letters
appellant wrote while in jail pending trial and in preventing appellant from
presenting evidence regarding Child Protective Services (CPS) investigations
concerning the complainant‘s children. We affirm.1

                                       Background

       According to complainant Connie Martin, on the morning of January 18,
2011, appellant appeared at an apartment in Haltom City, Texas where Martin was
living with her two children and her stepfather, Thomas Pritchett. Appellant and
Martin had previously dated, ending their relationship in October 2010. Martin
testified that, in the presence of Pritchett, appellant told her that he wanted to
reunite; Martin replied that she did not want to get back together, and appellant left
the apartment. After Pritchett left for work, appellant returned to the apartment.
As Martin began to open the door, appellant pushed the door open, entered the
apartment, and asked again if the couple could reunite, promising to get a job and
car if Martin agreed. Martin testified that she told appellant ―no‖ more than five
times before appellant walked toward the apartment door. She walked behind him
to let him out and to close the door, but before exiting, appellant turned and
punched Martin in the face. Other evidence established that blood was found
splattered on the apartment‘s front door. Martin further testified that she fell to the
ground and lost consciousness. When she awoke, she felt sick and dizzy.

       Appellant picked Martin up, carried her to the couch, and continued to ask if
they could get back together. When Martin responded in the negative, appellant
called her a ―dirty whore‖ and left the apartment. Martin stated that she then fell
asleep, only to wake later that night feeling physical pain in her face, neck, and
head. Martin found herself unable to talk or swallow, and when she attempted to
call Pritchett to tell him what had happened, she was unable to speak on the phone.

       1
         Pursuant to its docket-equalization powers, the Texas Supreme Court transferred this
appeal from the Second Court of Appeals to this court. See Tex. Gov‘t Code § 73.001.


                                             2
The next day, Martin called the police and went to the hospital via ambulance.
Martin‘s two daughters were witnesses to the assault and testified at trial.

         Following his arrest, appellant mailed Martin letters from jail. Two of the
letters were published in redacted form to the jury.        In the letters, appellant
apologized to Martin for ―all the times that I have hurt you. I get so angry about
things, then I don‘t react well. But . . . I HAVE NO EXCUSE.‖ Appellant also
claimed in the letters that his lawyer wanted to discredit Martin as a witness by
contacting CPS.        Appellant suggested his lawyer wanted to file ―child
endangerment charges‖ against Martin, but appellant said he told his lawyer not to
do that. Appellant further asked Martin to sign a statement saying that she had
lied. In one of the letters, he offered Martin $1,300 if the charges were dropped,
and he asked her to ―[p]lease drop the burglary, please.‖         In the other letter
published to the jury, appellant said ―don‘t lie and say I did some burglary. That‘s
bullshit, Connie.‖ Appellant further remarked that he ―will fight clean, dirty till we
drop.‖

         During trial, a discussion between the court, the State, and defense counsel
occurred outside the jury‘s presence on the issue of the letters‘ admissibility. The
unredacted letters were admitted for record purposes only as State‘s Exhibit 19A.
Appellant specifically objected on relevance grounds, that any probative value was
outweighed by undue prejudice, and that the letters would confuse and mislead the
jury. The Court redacted language in one letter indicating appellant was writing
from jail and any mention of his bond. The court also redacted the word ―dope‖
from one of the letters. The Court then admitted the redacted letters as State‘s
Exhibit 19B. The prosecutor published the redacted letters to the jury by reading
them aloud.



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      Later during trial, the State objected to defense counsel‘s eliciting testimony
about CPS investigations concerning Martin and her children. Outside of the
presence of the jury, counsel was allowed to question Martin as to the existence,
nature, and duration of several CPS investigations into alleged sexual abuse
allegations made by Martin‘s daughters against their father, who used to live with
Martin. Appellant apparently sought to introduce evidence of the investigations—
together with appellant‘s threat of reporting Martin to CPS in one of his letters—to
suggest Martin possessed a motive to lie about the assault. The State responded
that the allegations were made a year and a half prior to the assault, no evidence
existed that the abuse was occurring when the assault occurred, and appellant did
not make the threat to contact CPS until after he had been arrested. The Court
sustained the State‘s objection as to relevance and ruled that appellant could only
question Martin regarding the existence of the investigations and whether appellant
was aware of them and could not delve into specifics. Martin then testified that
CPS had conducted an investigation into her family before January 2011, the date
of the assault, and Appellant was aware of the ongoing investigation.

      The jury returned a guilty verdict as to assault on a family/household
member, but returned a verdict of not guilty to assault by impeding
breath/circulation. At the conclusion of the punishment hearing, the court found
the Habitual Offender Notice true and sentenced appellant to life in prison and a
$10,000 fine.

                                     The Letters

      In his first issue, appellant contends that the trial court erred in admitting the
above referenced letters appellant wrote to Martin while in jail pending trial. We
review a trial court‘s decision to admit or exclude evidence for an abuse of
discretion. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). As long

                                           4
as the court‘s ruling is within the zone of reasonable disagreement, we will not
disturb that ruling. Id. Appellant specifically contends that these letters should
have been excluded under Texas Rule of Evidence 403, which provides that
relevant evidence can ―be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, or needless presentation
of cumulative evidence.‖ Tex. R. Evid. 403.

      We presume that the probative value of relevant evidence substantially
outweighs the danger of unfair prejudice from admission of that evidence.
Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990); Andrade v.
State, 246 S.W.3d 217, 227 (Tex. App.—Houston [14th Dist.] 2007, pet. ref‘d). It
is therefore the defendant‘s burden to demonstrate that the danger of unfair
prejudice substantially outweighs the probative value.       Wenger v. State, 292
S.W.3d 191, 204 (Tex. App.—Fort Worth 2009, no pet.); Hinojosa v. State, 995
S.W.2d 955, 958 (Tex. App.—Houston [14th Dist.] 1999, no pet.). In reviewing
the trial court‘s balancing test determination under Rule 403, we are to ―reverse the
trial court‘s judgment rarely and only after a clear abuse of discretion.‖ Mozon v.
State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999).

      The Court of Criminal Appeals has identified several factors to be
considered in conducting the Rule 403 balancing test, including:

      (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. These factors may well blend together in
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       practice.

Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).
Furthermore, the trial court is not required to perform the balancing test on the
record, and when the record is silent, appellate courts must presume that the trial
court performed the appropriate balancing test. Williams v. State, 958 S.W.2d 186,
195-96 (Tex. Crim. App. 1997).

       Appellant contends that the danger of unfair prejudice in admitting the
letters outweighed their probative value because, although appellant apologizes for
hurting Martin in one letter, it is not clear whether he was apologizing for
assaulting her or for any emotional pain he may have caused her during the course
of their relationship.2 Appellant does not undertake to examine each of the six
Gigliobianco balancing factors but generally posits that the letters were unfairly
prejudicial because they had the tendency to arouse the jury‘s hostility or sympathy
without regard to the logical probative force of the evidence and to mislead the
jury into believing appellant was apologizing for—and thus admitting— the
assault.

       Looking at the Gigliobianco factors, we begin by noting that the trial court
reasonably could have concluded that the clearer implication in the tone and
substantive content of the letters was indeed that appellant was apologizing for
assaulting Martin.       He mentions that he ―get[s] so angry about things, then

       2
          Appellant additionally asserts that redactions made in the letters rendered them
misleading; however, it does not appear that the portions of the letters appellant complains about
as being redacted were actually redacted. The only redactions in the letters were to remove a
mention that appellant was in jail, the word ―dope‖ at one place, and a reference to appellant‘s
$100,000 bond. Appellant does not specifically complain about any of these redactions, and the
absence of these few words does not appear to render the letters misleading. Appellant further
suggests that there is a fair amount of illegible and confusing language in the letters that
contributes to the potential for unfair prejudice, but he does not identify specific language or
make more specific argument in this regard.

                                                6
[doesn‘t] react well,‖ and that he had no excuse for his actions. He claimed that he
loved her but ―didn‘t go about it the right way‖; instead, he ―went the street way.‖
He also asked her to ―let this s*** go‖ and to tell ―them‖ she lied. He urged her
not to lie and say he ―did some burglary‖ but did not deny the assault at any point.
The trial court, therefore, could have concluded that the letters were highly
probative and the State‘s need for them was substantial. It should also be noted
that the time required to present the letters into evidence did not greatly extend the
trial and that they were not cumulative of other evidence.

      Although it is possible appellant was apologizing in the letters for mistakes
he made generally in the couple‘s relationship rather than the assault, and thus they
may have had some tendency to suggest decision on an improper basis or confuse
or distract the jury from the main issues, the trial court was within its discretion in
determining that the danger of unfair prejudice from the letters‘ admission did not
substantially outweigh their probative value. See Tienda, 358 S.W.3d at 638.
Accordingly, we overrule appellant‘s first issue.

                                 CPS Investigations

      In his second issue, appellant contends the trial court erred in preventing
defense counsel from asking detailed questions of Martin regarding the CPS
investigations concerning her children. Appellant specifically asserts that the trial
court‘s ruling violated his rights to Due Process under the Fourteenth Amendment
to the United States Constitution by preventing him from presenting his defense.
See U.S. Const. amend. XIV, § 1.

      In Potier v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002), the Court of
Criminal Appeals explained that a constitutional right to present a meaningful
defense is rarely denied by an incorrect evidentiary ruling. A defendant does not
have a constitutional right to present evidence just because it is favorable to his
                                          7
cause. Id. at 659. A trial court can place reasonable restrictions on the evidence a
defendant presents to the jury. Id. ―Such rules do not abridge an accused‘s right to
present a defense so long as they are not ‗arbitrary‘ or ‗disproportionate‘ to the
purposes they are designed to serve.‖ Id. A trial court‘s exclusion of evidence
offered by the defense will violate due process only if (1) the state evidentiary rule
being applied categorically and arbitrarily prohibits the defendant from offering
reliable or relevant evidence that is vital to his defense, or (2) the trial court‘s
ruling erroneously excludes evidence that ―forms such a vital portion of the case
that exclusion effectively precludes the defendant from presenting a defense.‖ Id.
at 659-62, 665; see also Wiley v. State, 74 S.W.3d 399, 405 (Tex. Crim. App.
2002).

      Here, appellant does not assert the unconstitutionality of a rule of evidence
but instead complains about the limitations the trial court placed on his cross-
examination of Martin regarding CPS investigations concerning her children.
Appellant suggests that the specifics of the investigations he was attempting to
elicit would have bolstered his assertion that because he was aware of the alleged
abuse and investigations and had threatened to further report Martin to CPS,
Martin had a motive to fabricate her story about the assault. The trial court limited
the cross-examination to whether or not CPS investigations existed and whether or
not appellant was aware of them if they did. Defense counsel was not permitted to
delve into the specifics of the investigations themselves, including the nature of the
allegations being investigated.

      Although appellant‘s trial counsel argued the relevance of the evidence he
sought to present to the trial court, he did not argue that the court‘s limitations on
cross-examination amounted to a violation of appellant‘s due process rights.
Because counsel failed to make this argument in the trial court, it was not

                                          8
preserved for appellate review. See Clark v. State, 365 S.W.3d 333, 339-40 (Tex.
Crim. App. 2012) (holding that because defense counsel failed to alert the trial
court that he was requesting relief based on a violation of defendant‘s
constitutional rights, due process argument was not preserved for appellate
review); Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009) (holding
that due process right to present a defense is subject to forfeiture if not properly
asserted in the trial court).

       Moreover, even if the argument had been properly preserved, the limitations
the trial court placed on defense counsel‘s cross-examination of Martin did not
prevent appellant from presenting a defense. The trial court prevented appellant
from going into the specifics and details of the CPS investigations, particularly, the
nature of the conduct investigated and the duration; however, he was permitted to
cross-examine Martin regarding the existence of the investigations and whether
appellant knew about it. Further, as appellant acknowledges, the jailhouse letters
the trial court admitted additionally substantiated the defense by showing
appellant‘s threat to report Martin to CPS. In short, appellant was permitted to
present his defense and was only barred from exploring specific details. Thus, the
trial court‘s limitation on cross-examination did not rise to the constitutional level
of violating appellant‘s due process right to present his defense. See Potier, 68
S.W.3d at 663-66; Clark v. State, 305 S.W.3d 351, 358-60 (Tex. App.–Houston
[14 Dist.] 2010), aff’d, 365 S.W.3d 333.3 We overrule appellant‘s second issue.


       3
          In Potier, the Court examined the evidence the defendant was actually allowed to
introduce to the jury and determined that it was sufficient to present a defense. 68 S.W.3d at
665–66 (―It may be seen that the erroneously excluded evidence was relevant to the defense of
self-defense, but that their exclusion did not prevent the appellant from presenting a defense. For
this reason, the error was not of constitutional dimension.‖).
      In Clark, the defendant, on trial for capital murder, mounted the defense that the victim
had committed suicide and attempted to introduce evidence to show factors in her life that might
                                                9
       We affirm the trial court‘s judgment.


                                    /s/            Martha Hill Jamison
                                                   Justice

Panel consists of Justices Christopher, Jamison, and McCally.
Publish — TEX. R. APP. P. 47.2(b).




have driven her to the act. 305 S.W.3d at 358-60. The trial court excluded evidence establishing
that CPS had removed the victim‘s daughter, questions on cross-examination of the victim‘s
mother about her knowledge of the CPS investigation, CPS records concerning the victim‘s
daughter and the death of her son, and evidence showing the victim‘s motive for being ―upbeat‖
to a CPS worker. Id. at 358. Because other evidence was admitted substantiating the defense,
these exclusions did not prevent the defendant from presenting a defense. Id. at 360. In its
opinion in Clark, the Court of Criminal Appeals did not address this specific due process issue.
365 S.W.3d 333.

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