                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                  NO.     2-07-112-CR
                                  NO.     2-07-113-CR
                                  NO.     2-07-114-CR
                                  NO.     2-07-115-CR
                                  NO.     2-07-116-CR

GEORGE DANIEL SMITH, JR.                                           APPELLANT

                                              V.

THE STATE OF TEXAS                                                      STATE

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           FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

                                          ------------

                          MEMORANDUM OPINION 1

                                          ------------

      Appellant George Daniel Smith, Jr. pleaded guilty to three offenses of

aggravated robbery with a deadly weapon and two offenses of robbery causing

bodily injury. A jury assessed his punishment at ninety-nine years’ confinement

for each offense. In a single point, Appellant argues that the trial court erred



      1
          … See T EX. R. A PP. P. 47.4.
when it allowed a State’s witness to testify that she was concerned about her

future safety. We affirm.

      Appellant robbed five different individuals on October 4 and 5, 2006.

Beverly Shuffield was one of his victims. She testified that she was returning

to work in mid-afternoon on October 4 when Appellant approached her in a

parking lot and said he was looking for his wife.        As Shuffield offered

assistance, Appellant pulled something out of his pocket which was wrapped

in a bandana and could have been a weapon, and instructed Shuffield to give

him her purse. Shuffield screamed for help and refused to hand over her purse.

Appellant went to his car and sped away.

      The following exchange occurred at punishment:

      [Prosecutor]: Okay. And did you also express a concern to me this
      morning about your future safety with regard to this Defendant?

      [Defense counsel]: Your - -

      [Shuffield]: Yes.

      [Defense counsel]: Excuse me, Your Honor. I’m simply going to
      have to object to that as being - - excuse me ma’am - - as being
      entirely speculative and certainly more prejudicial than probative.
      I - - unless there’s something I don’t know about. I’m sure there’s
      been no threats after this, ma’am.

      The Court: That’s overruled.

      [Prosecutor]: Okay. You can go ahead and answer the question.


                                      2
      [Shuffield]: I don’t know what information is available to him about
      me. I don’t know who he has around here that someone might
      follow me to my car, follow me to my home. I don’t know if he
      has my home information. There’s - - my father - - all of my family
      is in law enforcement, and my father, as a retired police officer,
      was very concerned about me coming here today.

      Appellant argues that the trial court reversibly erred and abused its

discretion by allowing Shuffield to testify during punishment that she was

concerned about her future safety because this evidence was irrelevant and

more prejudicial than probative. 2

      We will not disturb a trial court’s evidentiary ruling absent an abuse of

discretion.3 As long as the trial court’s ruling is within the zone of reasonable

disagreement and is correct under any theory of law applicable to the case, it

must be upheld.4

      We first observe that Appellant did not lodge an objection that the

complained of testimony was irrelevant; he objected only that the testimony

was speculative and more prejudicial than probative. Consequently, he failed

to preserve his relevancy complaint for appellate review.5


      2
          … See T EX. R. E VID. 401, 403.
      3
          … Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007).
      4
          … Id.
      5
       … See T EX. R. A PP. P. 33.1(a)(1) (requiring that to preserve a complaint
for appellate review, a party must have presented to the trial court a timely

                                            3
      Although relevant, evidence may 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. 6       Once appellant makes a rule 403

objection, the trial court must weigh the probativeness of the evidence to

determine if it is substantially outweighed by its potential for unfair prejudice. 7

A rule 403 balancing test includes 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




request, objection, or motion that states the specific grounds for the desired
ruling if they are not apparent from the context of the request, objection, or
motion); see also T EX. R. E VID. 103(a)(1); Mosley v. State, 983 S.W.2d 249,
265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070
(1999).
      6
          … T EX. R. E VID. 403.
      7
          … Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997).

                                         4
evidence will consume an inordinate amount of time or merely repeat evidence

already admitted.8

      The rules of evidence favor the admission of relevant evidence and carry

a presumption that relevant evidence is more probative than prejudicial. 9 When

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.10

      The first two State’s witnesses to testify were Kory Dyson and Haggard

Rhodes, Jr., two other victims robbed by Appellant on October 4. During the

cross-examination of Dyson, defense counsel questioned whether Dyson’s

encounter with Appellant was brief, whether Appellant had struck him, and

whether Appellant had told Dyson that he was not going to hurt him. Dyson

answered that the encounter was brief, that Appellant did not strike him, and

that Appellant said he was not going to hurt him. During the cross-examination



      8
      … Gigliobianco v. State, 210 S.W.3d 637, 641–42 & n.8 (Tex. Crim.
App. 2006).
      9
      … Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996), cert.
denied, 522 U.S. 832 (1997).
      10
       … Garcia v. State, 201 S.W.3d 695, 704 (Tex. Crim. App. 2006), cert.
denied, 127 S. Ct. 1289 (2007).

                                      5
of Rhodes, defense counsel questioned whether it was possible that Appellant

did not actually intend to knock Rhodes down to the ground or step on his arm

during the robbery, and Rhodes tentatively agreed. Defense counsel also asked

whether Appellant had told Rhodes that he was sorry; Rhodes said Appellant

did not. Shuffield testified immediately after Dyson and Rhodes.

      The probative value of the question inquiring into whether Shuffield had

any concerns about her future safety was considerable in light of the testimony

that defense counsel had just elicited from Dyson and Rhodes attempting to

portray their encounters with Appellant as brief and nonviolent.        Indeed,

Appellant had pleaded guilty to five robbery offenses, three of which were

aggravated robberies with deadly weapons.        Shuffield’s fear of Appellant,

resulting from her encounter with him, tended to make more probable the fact

that the robberies were violent, more than just a mere inconvenience, and

deserving of a lengthy sentence. 11 Weighing the probative value of Shuffield’s

testimony with the other rule 403 factors, the trial court could have reasonably

concluded that Shuffield’s testimony did not have a tendency to suggest

decision on an improper basis, to confuse or distract the jury, or to be given


      11
       … See Gigliobianco, 210 S.W.3d at 642 (reasoning that “probative
value” means more than relevance; it refers to the inherent probative force of
an item of evidence—that is, how strongly it serves to make more or less
probable the existence of a fact of consequence to the litigation).

                                       6
undue weight by the jury. Consequently, the trial court could have reasonably

concluded that the probative value of Shuffield’s testimony was not

substantially outweighed by the danger of unfair prejudice.12 We hold that the

trial court did not abuse its discretion by allowing Shuffield to testify that she

was concerned about her future safety. Accordingly, we overrule Appellant’s

sole point and affirm the trial court’s judgment.




                                                    PER CURIAM

PANEL F: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: March 20, 2008




      12
           … See T EX. R. E VID. 403.

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