OPINION Casey Lynn Marcee appeals her conviction for the offense of injury to a child. The subject of the appeal is the admission into evidence of a video of Marcee taken during the jail booking procedure (“Jail Video”). Marcee contends that the video should have been excluded because its probative value is substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403 (“Rule 403″). We affirm. BACKGROUND The incident T.D., who is Marcee’s nephew and the victim in this case, was 12 years old at the time of the incident resulting in Marcee’s conviction. He, his younger brother, Marcee, and Marcee’s two children all lived with T.D.’s grandmother, Yolanda Molinar. T.D. testified that he returned home from a football game on the evening of September 14, 2017, to find that his dog was soaking wet. He asked Marcee what had happened to the dog, but she just said she did not know. It is undisputed that Marcee had been drinking. When T.D. continued to question her about the dog, she began yelling, which she did close enough to T.D.’s face that he could feel spit from her mouth. According to Molinar, everyone in the house became involved, all yelling and arguing with one another. Molinar told Marcee to leave and then called the police. Marcee slammed the door and left the house. Molinar told T.D. not to follow her, but he disobeyed because he wanted to find out the truth about his dog. T.D. testified that he followed Marcee for a little bit as she walked down the road, but then she suddenly turned around and started to punch him. She picked him up and threw him to the ground, where he hit his head on the road. T.D. curled up against a wall and called 911, while Marcee tried to take the phone away from him. She then ran away and T.D. tried to follow to see where she was going. At that point, however, Molinar arrived and took T.D., who was bleeding from a head injury, to the hospital. The 911 dispatcher who received T.D.’s call testified that, for the first eight or nine seconds of the call, there was silence except for the sound of the phone moving around, as if someone was in an altercation. She also testified that the child was in a panic and screaming, and, from what she could hear, it definitely sounded as if he was being beaten. The investigation and arrest When Sergeant Aaron Villanueva of the Alpine Police Department arrived at the scene, he discovered that T.D. had been taken to the hospital and that Marcee had fled. Sergeant Villanueva searched the surrounding area for Marcee, whom he found a block-and-a-half away. He detained Marcee and took her to the police station to conduct an interview. Marcee, who was visibly intoxicated and agitated, gave a variety of conflicting versions of what happened between herself and T.D. Her oral statements were recorded[1] and later shown to the jury. Significantly, Marcee repeatedly stated that T.D. was the aggressor. In the meantime, Officer Derek Stratton located T.D. at the hospital. T.D. was visibly shaken and had noticeable injuries, including a cut on his head. He identified Marcee as the person who had injured him. Officer Stratton relayed this information to Sergeant Villanueva, and then left the hospital to prepare a probable cause affidavit, which he took to the Brewster County Jail. By that time, Sergeant Villanueva had arrested Marcee and walked her from the police station to the jail. At the jail, Marcee became belligerent and increasingly irate, screaming and yelling at the jailer who was conducting the intake interview. Sergeant Villanueva, who had had his body- camera on almost continuously since first encountering Marcee, had turned the camera off when he entered the jail because a loud buzzing noise alerted him that the battery was about to die, and because he knew that the jail had its own camera system. When Officer Stratton arrived, however, he kept his body-camera running while he waited for an opportunity to give the jailer the probable cause affidavit. Officer Stratton testified that part of the reason he kept the camera running was because he had noticed that Marcee seemed upset and he wanted to be sure nothing happened while the jailer was interacting with her. The resulting video is the Jail Video that is the subject of this appeal. The Jail Video The Jail Video shows the jailer standing in front of Marcee, who is seated on a bench with her hands handcuffed behind her. The jailer asks Marcee a series of standard intake questions and notes her answers on a clipboard. The jailer never raises his voice, nor does he use threatening or abusive language, or otherwise approach Marcee in a physically threatening manner. As described even by Marcee’s counsel at trial, “The guy was just doing his job.” Marcee, on the other hand, repeatedly stands, comes very close to the jailer, and yells expletives directly into his face. Even while seated, she berates him with a nearly continuous stream of foul and abusive language. Both her tone of voice and demeanor are taunting and aggressive. After depicting fifteen minutes of the intake process, the Jail Video ends with Marcee being escorted into the interior of the jail. Marcee objected in the court below to admitting the Jail Video into evidence on the ground that its probative value was substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403. She specifically argued that the video was “likely to paint her in an unfavorable light with the jury,” the comments she made on the video “had little to do with the facts at issue,” and the “information is highly prejudicial to the defense, and not at all probative of the facts at issue in this case.” The trial court overruled Marcee’s objection and the Jail Video was admitted and played for the jury. The jury returned a verdict of guilty and assessed punishment at eight years confinement. Having assessed punishment at no more than ten years confinement and finding that Marcee had never been convicted of a felony, the jury further recommended she be placed on community supervision and that that the trial court suspend the term of confinement. The court entered judgment on the verdict, including probating the sentence of confinement, and this appeal followed. DISCUSSION The sole issue presented in this appeal is whether the trial court abused its discretion by admitting the Jail Video into evidence over Marcee’s Rule 403 objection. Standard of Review A trial court’s decision to admit evidence is reviewed for abuse of discretion. Colone v. State, 573 S.W.3d 249, 263–64 (Tex. Crim. App. 2019); Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018). Under this standard, the court’s decision “will be upheld as long as it was within the ‘zone of reasonable disagreement.’” Beham, 559 S.W.3d at 478. Rule 403 Rule 403 provides that “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” TEX. R. EVID. 403. The rule favors the admission of evidence and encompasses a presumption that relevant evidence will be more probative than prejudicial. Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (opinion on reh’g); see Hernandez v. State, 390 S.W.3d 310, 323 (Tex. Crim. App. 2012). “‘Probative value’ 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—coupled with the proponent’s need for that item of evidence.” Hernandez, 390 S.W.3d at 323 (quoting Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007)). “‘Unfair prejudice’ refers to the tendency to suggest that decisions may be made on an improper basis, commonly an emotional one.” Hernandez, 390 S.W.3d at 323-24; see Montgomery, 810 S.W.2d at 389. Evidence carries less weight in the balancing analysis than it otherwise would when the proponent has “other compelling or undisputed evidence” to establish the same proposition. Montgomery, 810 S.W.2d at 390. Because all probative evidence is prejudicial to one side or the other, it is important to bear in mind that Rule 403 applies “only when there is a clear disparity between the degree of prejudice of the offered evidence and its probative value[.]” Hernandez, 390 S.W.3d at 324. Probative value of the Jail Video Marcee argues that the Jail Video lacks probative value because it “does not depict the scene of the offense, the scene of the arrest, or any other witnesses[,]” and because, although it depicts Marcee as angry and uncooperative, she “ does not assault or attempt to assault the officers or jail staff.” She also argues that the State did not have any need to offer the video because the case rested on T.D.’s credibility. We disagree. The fact that T.D., who was then only 12 years old and the only other witness to the incident besides Marcee, demonstrates why the State did have a need to show the jury the Jail Video. Marcee did not testify at trial, but her recorded oral statements to Sergeant Villanueva were admitted and shown to the jury without objection. In that video, Marcee asserts that T.D. was the aggressor and that he attacked her, rather than the other way around. The jury also heard from T.D., however, that Marcee was yelling in his face and then, when they were alone outside, suddenly she launched a vicious attack on him. Thus, which person was the aggressor was a fact of consequence to the litigation. See Hernandez, 390 S.W.3d at 323. And, as Marcee repeatedly argues on appeal, the credibility of T.D.’s account was crucial. By that account, the State was asking the jury to believe that it was Marcee, not T.D., who escalated the argument into a physical assault causing injury on a child. In other words, the jury was being asked to believe that Marcee’s conduct was not only violent, but significantly out of proportion to the situation. That is precisely what is depicted in the Jail Video. Marcee misconstrues the point of showing the Jail Video in two respects. In her written objection in the court below, she argued that the video should be excluded because the comments she made on that video are not probative of the facts at issue. We agree that the content of Marcee’s expletive-filled rant has little to do with the issues in the case. But the fact, intensity, and circumstances of that rant have everything to do with the primary issue—who assaulted whom? This leads us to Marcee’s second misapprehension. Marcee contends that the only point of showing the jury the Jail Video was to show that she was angry and intoxicated. But the video demonstrates much more in that it vividly corroborates the details of T.D.’s account. Just as T.D. described Marcee yelling into his face at close range, Marcee repeatedly shouts in the face of the jailer. Just as T.D. described Marcee suddenly turning and assaulting him, the abuse Marcee directs at the jailer comes in sudden bursts. And just as assaulting a child over an argument about a wet dog is a reaction that is disproportionate to the situation, the video as a whole demonstrates that Marcee is not just angry or indignant about being arrested, she is combative to a degree that is wholly disproportionate to the situation. Marcee argues, nonetheless, that the Jail Video does not tend to show that she—rather than T.D.—was the aggressor, because it shows that she did not actually assault the jailer. While it is true that Marcee never physically assaulted the jailer, she most definitely subjected him to a prolonged and forceful verbal assault. The fact that Marcee engaged in aggressive and abusive behavior toward a physically larger and more powerful authority figure, who had done nothing to provoke her, tends to make more probable the fact that she was the aggressor in a confrontation with a 12-year-old child—a far more vulnerable adversary—for nagging her about a wet dog. See Hernandez, 390 S.W.3d at 323 (probative evidence makes more or less probable the existence of a fact of consequence to the litigation). We conclude that the Jail Video had probative value on the issue of whether Marcee or T.D. was the aggressor. We turn, then, to examine whether that probative value was substantially outweighed by a danger of unfair prejudice. See TEX. R. EVID. 403; Hernandez, 390 S.W.3d at 323–24; Montgomery, 810 S.W.2d at 389. Danger of unfair prejudice As noted above, all probative evidence is prejudicial to one party or the other, at least to some degree. Hernandez, 390 S.W.3d at 324. But Rule 403 is concerned only with unfair prejudice, that which tends to suggest that a decision may be made on an improper basis. Id. at 323-24; Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). “Evidence might be unfairly prejudicial if, for example, it arouses the jury’s hostility or sympathy for one side without regard to the logical probative force of the evidence.” Gigliobianco, 210 S.W.3d at 641. Marcee argues that the Jail Video is unfairly prejudicial because the State’s purpose in admitting it was to create hostility against her and to invite the jury to convict her based on her post-arrest behavior. Marcee again argues that the only point of the video was to show that she was angry and intoxicated. Because we have already discussed the probative value of the video, we need not repeat that discussion here. Suffice it to say that the State demonstrated a legitimate purpose for introducing the Jail Video, and that the content of the video suggests a proper basis for deciding in the State’s favor. See Gigliobianco, 210 S.W.3d at 641. Marcee’s conduct and language may have aroused in the jury some hostility against her (as even her own attorney advised the jury, “[Y]ou are not going to like Casey [Marcee]“), but that reaction is not “without regard to the logical probative force of the [video].” Id. In other words, the prejudice generated by the Jail Video is not “unfair prejudice” as contemplated by Rule 403. See id. Marcee also contends that admission of the Jail Video was unfairly prejudicial because the State deprived her of other contemporaneous evidence. Specifically, she complains that Sergeant Villanueva lost her written statement, there is no video recording of her behavior between the time Sergeant Villanueva turned off his body-camera and the time Officer Stratton arrived at the jail because the recordings from the jail’s camera system were erased, and Officer Stratton did not record his hospital interview with T.D. Marcee does not contend that the content of her written statement differed in any respect from the content of the oral recorded statement she gave to Sergeant Villanueva. She also does not contend that her behavior in the four or five minutes at the jail for which there is no recording was different than her recorded behavior. Finally, she does not explain how a recording of the interview with T.D. would have altered the jury’s perception of her own behavior as depicted in the Jail Video. In short, Marcee does not show, and we cannot conclude, that the lack of these items of evidence rendered the Jail Video unfairly prejudicial. Balancing probative value and the danger of unfair prejudice For the reasons discussed above, the Jail Video had probative value on the issue of whether Marcee or T.D. was the aggressor in this case, and the video did not present a danger of unfair prejudice. The probative value of the video is therefore not substantially outweighed by a danger of unfair prejudice. See TEX. R. EVID. 403. Consequently, the trial court did not abuse its discretion by overruling Marcee’s Rule 403 objection and admitting the video into evidence. C. Preservation of additional grounds for exclusion To preserve error concerning the admission of evidence, a defendant must lodge a timely and specific objection in the trial court. Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000). The purpose of this requirement is “to give to the trial court or the opposing party the opportunity to correct the error or remove the basis for the objection.” Id. As a corollary to this requirement, the evidentiary error presented on appeal must be the same as the objection raised at trial. Sharp v. State, 707 S.W.2d 611, 619 (Tex. Crim. App. 1986); see Martinez, 22 S.W.3d at 507. Marcee argues on appeal that the Jail Video is inadmissible because its probative value is substantially outweighed by a danger of confusing the issues, misleading the jury, undue delay, and needlessly presenting cumulative evidence. See TEX. R. EVID. 403. The only Rule 403 objection she raised in the trial court, however, was that the probative value of the video was substantially outweighed by a danger of unfair prejudice.[2] Marcee did not preserve error on the additional grounds for exclusion she now urges, and we decline to entertain those unpreserved grounds. Marcee’s sole issue on appeal is overruled. CONCLUSION The record in this case supports the trial court’s determination that the probative value of the Jail Video was not substantially outweighed by a danger of unfair prejudice. The court did not abuse its discretion by admitting the video into evidence. The judgment of the trial court is affirmed. GINA M. PALAFOX, Justice July 20, 2020 Before Alley, C.J., Rodriguez, and Palafox, JJ. (Do Not Publish)
