Patrick Smith v. The State of Texas--Appeal from 299th District Court of Travis County

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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00249-CR
Patrick Smith, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. 96-4011, HONORABLE JON WISSER, JUDGE PRESIDING
Appellant Patrick Smith was convicted of the murder of his wife, Amanda Smith ("decedent"). See Tex. Penal Code Ann. 19.02(b)(1) (West 1994). The trial judge sentenced him to forty years' confinement in the Texas Department of Criminal Justice Institutional Division. On appeal Smith asserts four points of error complaining of the sufficiency of the evidence and the admission of certain testimony. We will affirm the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Decedent met Patrick Smith in the spring of 1994. Their relationship was a tumultuous one. On June 18, 1994, on complaint by decedent, appellant was arrested for assault with injury. Nonetheless, the two were married on July 21, 1994. Appellant pleaded guilty to the assault charge on October 21, 1994. In September and October of 1994, Amanda Smith called the Center for Battered Women for assistance several times and was admitted to the center's shelter for two weeks in October 1994, but by November was back together with appellant. On January 2, 1995, police were called to a family disturbance at the grocery store where decedent worked, but she did not want to file charges against appellant because he was already on probation from the earlier assault. By February 8, appellant began living with Pontia Holder, whom he later referred to as his girlfriend. (1) On April 15, Amanda Smith was found dead in her apartment, the result of an intraoral gunshot wound. Patrick Smith contended that he and decedent were having sex when decedent shot herself. Though no blood was seen on him, appellant's hands did bear gunshot residue.

Later that day, appellant signed a seven-page statement at the police station describing the events leading up to the time of the shooting, in which he stated the following (2): On Thursday, April 13th, appellant went to decedent's apartment. At the time, appellant was living with his girlfriend Pontia Holder. While at decedent's apartment, appellant and decedent began kissing and having sex. The two started to have anal sex, but decedent asked appellant to stop because it was hurting her. Appellant told decedent that having anal sex meant a lot to him "as making true love"; he did not just want to have sex with her, but wanted to make love with her because she was his wife. Appellant told decedent that if they terminated their relationship over anal sex, then he might as well go kill himself because he would be totally alone without her. Decedent then said, "I got a great idea. Let's make it a double suicide. . . . It would have to be done at the same time. If you just killed yourself I don't know if I would have the courage to kill myself." She asked if appellant still had his gun. Appellant told her it was in the pawn shop and he did not have enough money to retrieve it. Decedent said she had money in the bank and if appellant would come back later on Friday (it was early morning on Friday by this time), she would give him the money to go get the gun. Appellant eventually agreed and left to pick up Pontia from work.

At about 11:00 a.m. Friday, appellant returned to decedent's apartment and the two left for the bank. Appellant described in detail how he and decedent engaged in a variety of sexual activities while waiting at the drive-up window at the bank. They returned to the apartment with the money for the gun, continuing in their sexual exploits. By 1:30 p.m., appellant left and returned to his home. Two hours later, he and Pontia went to the pawn shop, redeemed the gun, and returned to their home. At 10:25 p.m., appellant took Pontia to work and then went to decedent's apartment.

Decedent asked if he had brought the gun. Appellant said yes but that he needed to show her how to clean the weapon because if his fingerprints were on the gun, "'they're going to think it was a suicide/murder rather than a joint suicide.' I told her I did not want to be labeled a murderer posthumously." After cleaning the gun, appellant fell asleep until 2:45 a.m. After waking, appellant showed decedent how to lock and load the gun, which she did. Decedent began pointing the weapon around. Because she enjoyed playing with guns during sex, according to appellant, he was not worried yet. Decedent said she was afraid of the pain of being shot, but appellant told her she would be dead before she even heard anything. Appellant stated he still did not believe she was serious. They began having sex, with decedent on her hands and knees and appellant behind her. Decedent put the gun in her mouth. According to appellant, she had done this before, so he was still not worried; it was a part of her "sexual thrill game." After "major orgasms," appellant told her "we are all still alive." He then went to the living room to watch television, but decedent stayed in the bed playing with the weapon. Watching her "mouth" the gun excited him again so he returned to the bed.

Appellant continued: "She took the weapon briefly out of her mouth and told me I did not have my head in the right place. I asked, 'What do you mean?' She said, 'I thought we were going to get two birds with one stone.' I said, 'What you have chambered is a Black Talon [bullet], which will take out the insides of your head and the whole left side of my head.'"

"I still didn't think she was serious. It just didn't click. She told me she wanted me to put my head directly behind her head. I had the left side of my head against the right side of her head. I was lying there, licking and kissing on her neck. I was looking down the right side of her face, looking at the left side of the barrel. I continued to rub her hand, massage her breast and kiss her. I heard her sob and I saw the muscle in her thumb tighten. Her body bucked and I heard the gunshot."

"I pushed myself really hard off her. When I hit the floor I looked at her body lying there. I saw the death gasp. About the time her death gasp happened her body sagged and the blood came out. I said, 'Oh, my God, she's dead.' I called 911."

Appellant also stated that decedent had called him in mid-March to tell him she had a miscarriage and that she had tried to kill herself by taking some sleeping pills and vodka. Earlier in the week of Amanda's death, appellant had been to her apartment and found a note that appeared to be a suicide note with her parents' phone numbers on it. She had also threatened to shoot herself on February 8 after telling appellant she wanted a divorce.

The medical technician who worked the night of the shooting testified that the gun was located underneath decedent's body, which was face down on the bed. An officer at the scene testified that appellant had wild mood swings as he told the officer what had happened, at times crying and sobbing and at other times laughing. At one point, appellant tried to pick a fight in the parking lot with a passerby who was apparently trying to see what was happening. While still at the scene, appellant's hands were "rubbed" as part of an atomic absorption test for gunshot residue. Residue was found on both his and decedent's hands.

Appellant was eventually indicted for murder, manslaughter, and assisted suicide. Rejecting appellant's story that he did not intentionally or knowingly cause the death, the jury returned a verdict of guilty on the murder charge. Appellant asserts four points of error on appeal.

 

DISCUSSION

Sufficiency of the Evidence

In his first point of error, appellant asserts that the evidence is legally insufficient to support the jury's verdict of murder. In reviewing the legal sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 309 (1979). Under the Jackson standard, the reviewing court is not to position itself as a thirteenth juror in assessing the evidence nor is it our place to second guess the determination made by the trier of fact. See Matchett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App. 1996). The fact finder may also draw reasonable inferences from the evidence presented. Boudreaux v. State, 878 S.W.2d 701, 705 (Tex. App.--Beaumont 1994, no pet.).

Based on the indictment and the relevant statute, in order to convict appellant of murder the State had to show that appellant intentionally or knowingly caused the death of Amanda Smith by shooting her with a firearm. See Tex. Penal Code Ann. 19.02(b) (West 1994). The State offered into evidence appellant's statement to the police stating that although he was present at the time of the shooting, he had not caused it. A Department of Public Safety forensic chemist testified regarding the results of atomic absorption tests done on appellant's hands. He performed tests firing a weapon with two persons holding the gun in various different positions. He testified that the test results were consistent with appellant's having placed his hand over the shell-casing ejection port of the gun and his thumb on the trigger. Gunshot residue was detected on one of decedent's hands, but it was found on both of appellant's hands. The fact that the shell casing did not eject out of the ejection port when the gun was fired is consistent with the scenario that appellant's hand was not only near but was actually on the gun, blocking the ejection port. There was also a demonstration at trial that the gun could be fired by one person with another person's hand on the weapon.

The State presented evidence detailing the nature of the relationship between appellant and decedent. There was testimony that appellant was extremely controlling and manipulative of decedent and could make her do anything he wanted. The couple had been married for less than a year and had a very rocky relationship. In his statement to police, appellant described how decedent had told him that she had attempted suicide on March 16 or 17 by taking sleeping pills and vodka. He was allegedly concerned about her and went to see her on March 19, but a police officer was there and arrested appellant for a prior assault. Appellant told a friend that decedent had tricked him into coming over. He told the friend, "I'm going to get that bitch for that one."

Appellant was living with Pontia Holder at the time of Amanda's death. There was testimony at trial that appellant had stated in late March that he wanted to end his relationship with decedent so he could be with Pontia. Officer Mary Huske testified that Pontia had accused decedent of burglarizing her car and that the two women were not on friendly terms. Appellant called the Austin Police Department on March 21 and accused decedent of making harassing calls to Pontia. Appellant and Pontia Holder had their phone blocked so decedent could not call them.

Pontia told a friend that appellant was going to meet with Amanda on Friday, April 14 to end his relationship with her. The day before the shooting, appellant told another friend he was going to get his gun out of the pawn shop because Amanda was contemplating suicide and he was going to take the gun to her. The friend stated that his impression was that appellant's relationship with Amanda would not end unless one of them was dead.

Appellant had been employed as a security guard and the evidence showed that he knew how easy the trigger pull was on a Ruger 9mm, the gun used in the shooting. The evidence showed appellant knew how to load the weapon in such a way that his fingerprints would not be on the gun. Neither appellant's nor decedent's fingerprints were found on the gun. There was testimony that appellant was very concerned about his fingerprints being on the gun.

One neighbor, two doors down from decedent's apartment, testified that the walls of the apartments were thin and she heard a "boom" between 2:00 and 2:30 a.m. The adjoining neighbor testified that she did not arrive at home until after 2:30 a.m. and that she did not hear any noise from decedent's apartment although it was easy to hear sounds from the apartment. A firearms expert testified that the gunshot would have been very loud. There was testimony that appellant did not call 911 until approximately 3:45 a.m. Police officers and EMS personnel noticed that the decedent's blood had already begun to dry, indicating the blood had been there for a while. From this evidence, it can be inferred that appellant did not immediately call 911, but waited well over an hour before reporting the death.

There was evidence that appellant tried to get decedent's life insurance beneficiary information just hours after her death and that he was very angry when he could not get the information. He later found out that he was not the beneficiary. There was also evidence that appellant tried to gain access to decedent's bank account information after her death and again became extremely angry and loud when frustrated in this attempt.

Dr. Richard Coons, a general and forensic psychiatrist who has extensive experience with suicidal patients, testified that Amanda's actions and words in the days preceding her death were inconsistent with someone contemplating suicide. He testified that men and women commit suicide in different ways. Men tend to commit suicide more violently, while women tend to use more passive methods. It would be very unusual for a woman to shoot herself with a gun. It would be unusual to get a new job two days before committing suicide, as decedent had just done. It would be inconsistent for a woman to have painted her fingernails, as decedent had done, just before killing herself, especially with a firearm.

When a deadly weapon such as a gun is pointed at a person, the jury can determine what inference to draw concerning the accused's awareness of the risk, taking into account all of the surrounding circumstances. See Thomas v. State, 699 S.W.2d 845, 850 (Tex. Crim. App. 1985); Giles v. State, 617 S.W.2d 690, 691 (Tex. Crim. App. 1981). The standard of review in determining the legal sufficiency of the evidence is the same for both direct and circumstantial evidence. Geesa v. State, 820 S.W.2d 154, 162 (Tex. Crim. App. 1991). It is not necessary that every fact point directly and independently to defendant's guilt; it is enough if the conclusion is warranted by the combined force of all the incriminating circumstances. Banda v. State, 890 S.W.2d 42, 50 (Tex. Crim. App. 1994), cert. denied, 115 S. Ct. 2253 (1995). Viewing the evidence in the present case in the light most favorable to the prosecution, we believe the jury could have rationally concluded that appellant either intentionally or knowingly caused decedent's death. Point of error one is overruled.

In his second point of error, appellant asserts that the evidence was factually insufficient to sustain appellant's conviction for murder. In a factual-sufficiency review, the court reviews all the evidence without the prism of "in the light most favorable to the prosecution"; the court may consider the testimony of defense witnesses and the existence of alternative hypotheses. Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd untimely filed). The court should set aside the verdict only if it so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id.; see Clewis v. State, 922 S.W.2d 126, 136 (Tex. Crim. App. 1996) (adopting the standard in Stone). The appellate court reviews the evidence weighed by the jury that tends to prove the disputed facts and compares it to evidence tending to disprove the disputed facts. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). The appellate court must be appropriately deferential so as to avoid substituting its own judgment for that of the factfinder. Clewis, 922 S.W.2d at 133. The question is not whether the appellate court thinks the jury made the correct decision, but whether the jury verdict was clearly wrong and unjust.

Appellant elicited testimony from Dr. Robert Bayardo, the doctor who performed the autopsy on decedent, that he originally ruled the death to be a suicide. However, in an amendment to the original report, Dr. Bayardo wrote:

 

It is my opinion based on my experience, knowledge, and evidence obtained by scene investigation and autopsy investigation that the decedent, Amanda Smith, came to her death as result of a self-inflicted intraoral gunshot wound. However, the same evidence cannot exonerate without a reasonable doubt the other party involved in this incident, Patrick Dwayne Smith. It was possible for him to directly or indirectly pull the trigger of the gun. Based on this assumption I hereby amend the manner of death to 'could not be determined.'

 

Appellant also elicited testimony from Dr. Bayardo that he filed the amendment voluntarily. Bayardo stated there was concern about insurance money the family might lose if the death was ruled a suicide, but he also denied filing the amendment for that reason.

Appellant points out that he was not seen with any blood on his hands or clothes. There was testimony that if appellant had washed blood off of his hands, he would have also washed off the gunshot residue that was found on them. However, Dr. Bayardo testified that it would be possible for a person behind the victim to get no blood on them, especially because there was not much blood from the back of decedent's head. Additionally, there was testimony that appellant was wearing different clothes when police arrived than earlier in the evening.

Even considering appellant's explanation of the events to the police, the testimony of Dr. Bayardo that he originally ruled the death a suicide, and the lack of blood on appellant, we conclude that the verdict is not so contrary to the great weight of the evidence as to be clearly wrong and unjust. Point of error two is overruled.

 

Admission of Testimony

In his next two points of error, appellant complains that the trial court improperly admitted certain testimony. The trial court has discretion to allow or exclude evidence, because the trial judge is in the superior position to evaluate the impact of the evidence. See Blakeney v. State, 911 S.W.2d 508, 513 (Tex. App.--Austin 1995, no pet.). An appellate court should not set aside the trial court's evidentiary rulings unless the complaining party demonstrates an abuse of discretion. Id.

In appellant's third point of error, he asserts the trial court erred in admitting the testimony of Mike Shaw that Pontia Smith once wore a neck collar, that the collar meant she was appellant's slave, and that appellant had Pontia read a book about women being slaves to men. Appellant also contends the trial court erred in admitting testimony by Pontia Smith that she and appellant had a master/slave relationship and that appellant had given her a book to read concerning women being slaves to men. Appellant further asserts the trial court erred in admitting the testimony of April Hague, his former girlfriend, that appellant had asked her to call him "master" during sex, asked her to read a book about women being slaves to men, enjoyed sex in public, tied her up during sex, and once slapped her for not calling him "master" during sex. Appellant contends this evidence is not relevant, is inadmissible character evidence, and the prejudicial value outweighs any probative value. See Tex. R. Evid. 401, 403, 404(b). (3)

Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. The evidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient that the evidence provides a small nudge in proving or disproving some fact of consequence. Montgomery v, State, 810 S.W.2d 372, 376 (Tex. Crim. App. 1990). Relevancy is not an inherent characteristic, but arises from the relation of the evidence to a matter properly provable in the case. Blakeney, 911 S.W.2d at 513. Because reasonable persons may differ when determining whether a particular inference arises from a piece of evidence, the appellate court will not reverse the trial court's ruling as long as it is within the "zone of reasonable disagreement." Montgomery, 810 S.W.2d at 391; Blakeney, 911 S.W.2d at 513.

The State argues that the testimony of Shaw, Smith, and Hague is relevant because it makes more probable facts of consequence. First, the State maintains that the testimony tends to show intent by demonstrating motive. Testimony concerning Pontia Smith's willingness to participate in a master/slave relationship tends to show the motive that appellant killed decedent so he could be with someone who was very willing to be his slave. Also, the State maintains all the testimony complained of tends to show opportunity. The State contends this testimony shows that appellant dominates and controls the women in his life. Arguably, because of this control and domination, it is more likely appellant was able to get decedent to put a gun in her mouth, giving him the opportunity to kill her. We agree with the State and conclude that the trial court did not abuse its discretion in admitting this evidence as relevant.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. Tex. R. Evid. 404(b). It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. Evidence of the background in which events transpired that is helpful for the jury to understand a particular transaction may be admitted. Blakeney, 911 S.W.2d at 514.

Appellant argues that the testimony of Shaw, Smith, and Hague merely shows appellant's unsavory character and invited the jury to convict him for acting in conformity therewith. We disagree. In Blakeney this Court concluded that appellant's admission of his sexual orientation was inadmissible as background evidence because the inference that all homosexual men are molesters of little boys was unsupported by evidence or logic. Blakeney, 911 S.W.2d at 515. However, we also concluded that evidence appellant was sexually aroused while talking about the child victim had relevance apart from character conformity because it could be viewed as implying that appellant had sexual attraction toward the child and that he may have committed an act realizing that desire. Id.

The State suggests several purposes other than character conformity for which this testimony was presented. First, the State argues that the testimony demonstrates opportunity as described above; that is, appellant's control and domination of women demonstrates how he obtained an opportunity to kill Amanda Smith. The State next contends the testimony provides background evidence of the crime scene. The State had presented as evidence a note found at the crime scene that read "take me, spank me, master." No objection was made to admission of the note. The challenged testimony provided background in explaining the presence of the note. Third, the State asserts that evidence of Pontia Smith's master/slave relationship with appellant was admissible to show her bias in favor of appellant. In light of the unique circumstances of this case, we conclude that the trial court did not abuse its discretion by refusing to exclude this testimony as improper character evidence.

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. In balancing probative value and unfair prejudice, the presumption is that the probative value will outweigh any prejudicial effect. Montgomery, 810 S.W.2d at 389; Blakeney, 911 S.W.2d at 515. Therefore, it is movant's burden to show that the probative value is substantially outweighed by the danger of unfair prejudice.

Appellant points out that evidence of sexually related misconduct has long been considered inherently inflammatory because even if lawful, such practices are considered improper, immoral, and highly offensive by segments of the population. See Bishop v. State, 869 S.W.2d 342, 346 (Tex. Crim. App. 1993). In Bishop, the evidence in question (defendant's girlfriend testified he required her to fondle herself and that he was capable of performing sexually for extended period of time) was not particularly useful in pinpointing appellant as the offender and was far less significant than other evidence already presented by the State. Id. In contrast, the evidence in the present case of appellant's master/slave relationships was a useful and important element in establishing the State's theory as to opportunity and intent. Further, our review of the actual testimony at trial reveals that neither Shaw nor Pontia Smith testified about the sexual nature of the master/slave relationship. While Hague's testimony did involve sexual aspects, those aspects were not emphasized. Appellant has not demonstrated that the prejudicial effect of this evidence so outweighed its probative value that the trial court abused its discretion. Point of error three is overruled.

In his fourth point of error, appellant asserts that the trial court erred in admitting hearsay evidence of decedent's statements to employees of the Center for Battered Women. Appellant complains of statements made by (1) Sue Snyder, who performed an intake interview on the decedent, (2) Mary Ermey, who conducted five or six counseling sessions with decedent, and (3) Kimberly Harlan, who took a hotline call from decedent and arranged emergency housing for her.

Hearsay evidence that consists of statements made for purposes of medical treatment and diagnosis is admissible. See Tex. R. Evid. 803(4). Mary Ermey testified that she was a licensed master social worker and licensed therapist. She testified that she performed assessments of women at the shelter to assess their need for psychiatric care and counseling. This Court has upheld the admission of testimony from licensed therapists pursuant to Rule of Evidence 803(4). See Zinger v. State, 899 S.W.2d 423, 431 (Tex. App.--Austin 1995), rev'd on other grounds, 932 S.W.2d 511 (Tex. Crim. App. 1996); Syndex Corp. v. Dean, 820 S.W.2d 869, 873 (Tex. App.--Austin 1991, writ denied); Fleming v. State, 819 S.W.2d 237, 247 (Tex. App.--Austin 1991, pet. ref'd). The trial court did not abuse its discretion in admitting this testimony. (4)

Appellant further argues that the testimony of Snyder, Ermey, and Harlan was not admissible because the probative value of the testimony was substantially outweighed by its prejudicial value. See Tex. R. Evid. 403. Because an objection asserting prejudicial value was not asserted against Harlan's testimony at trial, this objection was not preserved as to her testimony. See Tex. R. App. P. 33.1(a)(1)(A). However, objection as to prejudicial value was preserved as to the testimony of Ermey and Snyder.

The testimony by Ermey was extensive. She conducted five or six counseling sessions with decedent. Ermey stated decedent felt unsafe with her husband, felt frightened, intimidated, degraded, and overpowered by him, and also felt that appellant was controlling of her money. Ermey also described yelling matches that decedent had detailed to her. In balancing probative value and unfair prejudice, the presumption is that the probative value will outweigh any prejudicial effect. Montgomery, 810 S.W.2d at 389; Blakeney, 911 S.W.2d at 515. The probative value here was the tendency to demonstrate the degree of control and domination appellant had over decedent and the nature of their relationship that would yield to appellant an opportunity to kill decedent. We conclude the trial court did not abuse its discretion in admitting Ermey's testimony.

Snyder testified at trial that she filled out the registration form when decedent was admitted to the Center for Battered Women. At this point in the trial, there had already been evidence of decedent's contacts with the center. Snyder testified that she did not have a recollection of decedent's demeanor at the time she was admitted to the center. Snyder stated that she asked decedent the questions required by the form and, without repeating what those questions were, that she concluded decedent met the criteria for admittance. No cross-examination of Snyder was conducted. Appellant does not demonstrate how any unfairly prejudicial effect of Snyder's minimal testimony at this point of the trial outweighed the probative value of the testimony. Point of error four is overruled.

 

CONCLUSION

The evidence presented at trial was legally and factually sufficient to support the jury's verdict. The trial court did not abuse its discretion in admitting the complained-of evidence. Having overruled appellants points of error, we affirm the trial court's judgment.

 

J. Woodfin Jones, Justice

Before Chief Justice Yeakel, Justices Aboussie and Jones

Affirmed

Filed: June 25, 1998

Do Not Publish

1. Pontia Holder is now Pontia Smith, having married appellant about six weeks after Amanda Smith's death.

2. The foregoing excerpts and summaries from appellant's statement are used as the primary basis of our statement of the facts because, although exculpatory in part, they are the only comprehensive account of the events leading up to the shooting. Other evidence that casts doubt on the veracity of portions of the statement will be discussed in our review of the sufficiency of the evidence.

3. As to the particular testimony by April Hague that appellant like to have sex in public, appellant made no timely objection when this testimony was elicited at trial. Error is therefore waived. Tex. R. App. P. 33.1(a)(1)(A). As to the testimony that appellant sometimes tied Hague up during sex, we find any error is waived because evidence that appellant tied Pontia Smith up during sex had already been admitted and is not presented as error before this Court. See Narvaiz v. State, 840 S.W.2d 415, 430 (Tex. Crim. App. 1992) (error in admitting evidence is waived if evidence to the same effect is admitted at another point in the trial).

4. Appellant also asserts that the trial court erred in admitting the testimony of Harlan and Snyder under Rule of Evidence 803(4). Appellant did not raise an objection to this testimony under Rule 803(4) at trial, so error has not been preserved on the issue. See Tex. R. App. P. 33.1(a)(1)(A); Reed v. State, 927 S.W.2d 289, 291 (Tex. App.--Fort Worth 1996, no pet.).

substantially outweighed by its prejudicial value. See Tex. R. Evid. 403. Because an objection asserting prejudicial value was not asserted against Harlan's testimony at trial, this objection was not preserved as to her testimony. See Tex. R. App. P. 33.1(a)(1)(A). However, objection as to prejudicial value was preserved as to the testimony of Ermey and Snyder.

The testimony by Ermey was extensive. She conducted five or six counseling sessions with decedent. Ermey stated decedent felt unsafe with her husband, felt frightened, intimidated, degraded, and overpowered by him, and also felt that appellant was controlling of her money. Ermey also described yelling matches that decedent had detailed to her. In balancing probative value and unfair prejudice, the presumption is that the probative value will outweigh any prejudicial effect. Montgomery, 810 S.W.2d at 389; Blakeney, 911 S.W.2d at 515. The probative value here was the tendency to demonstrate the degree of control and domination appellant had over decedent and the nature of their relationship that would yield to appellant an opportunity to kill decedent. We conclude the trial court did not abuse its discretion in admitting Ermey's testimony.

Snyder testified at trial that she filled out the registration form when decedent was admitted to the Center for Battered Women. At this point in the trial, there had already been evidence of decedent's contacts with the center. Snyder testified that she did not have a recollection of decedent's demeanor at the time she was admitted to the center. Snyder stated that she asked decedent the questions required by the form and, without repeating what those questions were, that she concluded decedent met the criteria for admittance. No cross-examination of Snyder was conducted. Appellant does not demonstrate how any unfairly prejudicial effect of Snyder's minimal testimony at this point of the trial outweighed the probative value of the testimony. Point of error four is overruled.

 

CONCLUSION

The evidence presented at trial was legally and factually sufficient to support the jury's verdict. The trial court did not abuse its discretion in admitting the complained-of evidence. Having overruled appellants points of error, we affirm the trial court's judgment.