                                            NO. 07-08-0132-CR

                                     IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                               AT AMARILLO

                                                  PANEL A

                                           FEBRUARY 23, 2009

                                ______________________________


                                 LAWYAR T. EWINGS, APPELLANT

                                                        V.

                                 THE STATE OF TEXAS, APPELLEE

                              _________________________________

                FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                        NO. 54359-E; HONORABLE ABE LOPEZ, JUDGE

                               _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                       MEMORANDUM OPINION


        Appellant, Lawyar T. Ewings, pled guilty to murder.1 During the punishment phase

of trial, he attempted to mitigate his punishment by asserting that he acted under the


        1
         See Tex. Penal Code Ann. § 19.02(b) (Vernon 2003). Except as provided by § 19.02(d), the offense
of m urder is punishable as a felony of the first degree. The range of punishm ent for a first degree felony is
im prisonm ent for life or for any term of not m ore than 99 years or less than 5 years and by a fine not to exceed
$10,000. § 12.32(a) and (b). For convenience, future provisions of the Texas Penal Code will sim ply be cited
as “§____” or “Section ____.”
influence of sudden passion arising from an adequate cause.2 The jury did not find

Appellant caused the death under the influence of sudden passion and they sentenced

him to confinement for thirty-five years. In a single issue, Appellant contends the trial court

erred by admitting photographs of the crime scene and the victim’s injuries that were

irrelevant, inflammatory, repetitious, and more prejudicial than probative. We affirm.


                                             Background


        Appellant and Jessica Termain were involved in an ongoing relationship for a

number of years during which he supplied her with money and/or drugs in return for sex.

Although Appellant was aware that she also traded sex with other men for money and/or

drugs, he was not bothered so long as she did not show affection toward other men in his

presence. Nevertheless, their relationship was troubled by her addiction and prostitution

which were a constant source of discord between them.


        On September 15, 2006, Appellant and Felicia Mahone, his cousin, went to the

Wishing Well Bar at approximately 1:00 p.m. At the bar, they met Termain and Appellant

purchased crack cocaine at her request. Before leaving the bar, Appellant and Termain

argued about where she was going to stay. Appellant wanted her to go with him and she

wanted to remain at the bar. Later, at dusk, Termain accompanied Mahone and Appellant


        2
         See Tex. Penal Code Ann. § 19.02(d) (Vernon 2003). If, at the punishm ent phase of a trial, the
defendant proves by a preponderance of the evidence that the death was caused under the im m ediate
influence of sudden passion arising from an adequate cause, then the offense is punishable as a felony of
the second degree. The range of punishm ent for a second degree felony is im prisonm ent for any term of not
m ore than 20 years or less than 2 years and by a fine not to exceed $10,000. § 12.33(a) and (b).

                                                     2
to his apartment where she smoked crack while Appellant and Mahone continued drinking.

Appellant and Termain also continued to argue about where she would be staying.

Termain wanted a ride across town. Before departing, Appellant placed his loaded, twelve

gauge shotgun in the backseat of his truck.


       Later that evening, Appellant and Mahone returned to the Wishing Well. As he

drove up, Appellant observed Termain kissing Billy Ray. He became upset because he

had bought crack for her and she was with another man. When he approached to speak

with her, she told him to get away and leave her alone. Appellant walked away for a time

but returned and said: ”Bitch, you mess with too many men, you’re trying to get somebody

killed.” Appellant and Mahone then left the Wishing Well and drove to another bar where

they continued drinking.


        Early in the morning of September 16, Appellant returned to the Wishing Well

looking for Termain. He pulled his truck into a parking area adjacent to a site where

homeless people camped out across the street from the Wishing Well and observed

Termain sitting on a mattress across from Larry Frazier, a homeless man. He “[didn’t]

know if they were making out,” but “[he] thought they might be making out . . . because of

the way they were laying together . . . [i]t was suspicious to [him].” He also observed

Termain was not wearing the same shirt she was wearing when she left his apartment

earlier that night.




                                              3
        Appellant got out of his truck and retrieved the loaded shotgun from the back seat.

He walked over to where Termain was sitting and made an angry utterance.3 Termain said

nothing. He then leveled the shotgun at her face, leaned in, and pulled the trigger.


        During the punishment phase of trial, Appellant testified as follows:


        DEFENSE COUNSEL: Why did you do that [shoot Termain]?
        APPELLANT:           I don’t know.        Man, I just flipped.         I don’t know what
        happened.
        DEFENSE COUNSEL: What made you flip?
        APPELLANT: I guess it was Billy Ray. Everybody else, you know what I’m
        talking about? This . . . Too much pressure out there.
        DEFENSE COUNSEL: If you didn’t go there to kill her, what was it about
        seeing her without her shirt on with [Frazier] that changed all that?
        APPELLANT: Oh, I really don’t know. I was just tired. You know, being
        misused and abused. It just hit me all at once, you know. Any way in the
        world that I’d kill that girl.


        Appellant placed his shotgun back in the truck and Mahone drove him home. Less

than an hour after the shooting, Appellant called the police from a pay phone. He told the

dispatcher that he thought he had “just killed someone” and that he believed he was

dreaming. Shortly thereafter, he was taken into custody, confessed to shooting Termain,

and signed a written statement.




        3
         Mahone testified that, im m ediately prior to the shooting, Appellant said, “Didn’t I say you were going
to respect m e?” Frazier testified that Appellant said, “Bitch, I told you if you fucked m e over one m ore tim e
I would blow your head off.”

                                                       4
       Prior to commencing the punishment phase of trial, the trial court conducted a

hearing to determine whether to exclude certain photographs of the crime scene and

Termain’s injuries that the State intended to present to the jury. Appellant’s counsel

contended that certain photographs were repetitious, inflammatory, and more prejudicial

than probative. The trial court noted that the photographs contained gore and excluded

a number of them. The jury subsequently assessed punishment at confinement for thirty-

five years.


                                       Discussion


       Appellant asserts that the photographs unfairly prejudiced the jury and resulted in

a sentence that fell within the punishment range applicable to a conviction for first degree

felony murder rather than second degree felony murder. In support, he contends the

photographs were irrelevant because, due to his guilty plea, any issues of cause and

manner of death were undisputed and the evidence was cumulative because the State

offered testimonial evidence related to the crime scene and Termain’s injuries. He also

contends the photographs were more prejudicial than probative because of their gruesome

nature and repetitive presentment.


       I.     Standard of Review


       The admissibility of a photograph is within the sound discretion of the trial judge.

Paredes v. State, 129 S.W.3d 530, 539 (Tex.Crim.App. 2004). We will not disturb a trial


                                             5
court’s ruling admitting or excluding evidence so long as the trial court’s decision falls within

the “zone of reasonable disagreement.” See Jones v. State, 944 S.W.2d 642, 651

(Tex.Crim.App. 1996).


       II.    Relevance


       A trial court has wide discretion in deciding the admissibility of evidence presented

at the punishment phase of trial.            Henderson v. State, 29 S.W.3d 616, 626

(Tex.App.–Houston [1st Dist.] 2000, pet. ref’d). The Texas Code of Criminal Procedure

provides that, whether punishment is assessed by the trial judge or the jury, the

circumstances of the offense for which the defendant is tried may be considered. Tex.

Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2007). Further, the State’s right

to introduce evidence during the punishment phase of trial is not restricted by the entry of

a plea by the defendant or an admission of facts sought to be proved by the State. York

v. State, 566 S.W.2d 936, 938 (Tex.Crim.App. 1978).


       Here, the photographs of the crime scene and victim were probative of the

circumstances related to the shooting and the nature of the fatal wound Appellant inflicted

on Termain. As such, they were relevant, or helpful, to the jury in tailoring an appropriate

sentence for Appellant. See Williams v. State, 176 S.W.3d 476, 481 (Tex.App.–Houston

[1st Dist.] 2004, no pet.). This is particularly so because Appellant asserted that he caused

Termain’s death under the immediate influence of sudden passion arising from an



                                               6
adequate cause.4 That the jury also heard testimony regarding the injuries depicted by

the photographs did not necessarily reduce the relevance of the visual depiction. See

Shuffield v. State, 189 S.W.3d 782, 787 (Tex.Crim.App. 2006), cert. denied, 549 U.S.

1056, 127 S.Ct. 664, 166 L.Ed.2d 521 (2007). Accordingly, we find the trial court correctly

determined that the photographs were relevant “to enable the jury to intelligently exercise

their discretion which the law vests in them to assess [Appellant’s] penalty.” York, 566

S.W.2d at 938. We must next determine whether the photographs were more prejudicial

than probative.


      III.       Unfair Prejudice


      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



      4
          § 19.02 states, in pertinent part, as follows:

      (a) In this section:

      (1) “Adequate cause” m eans cause that would com m only produce a degree of anger, rage,
      resentm ent, or terror in a person of ordinary tem per, sufficient to render the m ind incapable
      of cool reflection.

      (2) “Sudden passion” m eans passion directly caused by and arising out of provocation by the
      individual killed or another acting with the person killed which passion arises at the tim e of
      the offense and is not solely the result of form er provocation.

                                                 *    *        *

      (d) At the punishm ent stage of the trial, the defendant m ay raise the issue as to whether he
      caused the death under the im m ediate influence of sudden passion arising from an adequate
      cause. If the defendant proves the issue in the affirm ative by a preponderance of the
      evidence, the offense is a felony of the second degree.



                                                           7
jury, or by considerations of undue delay, or needless presentation of cumulative

evidence.” See Tex. R. Evid. 403. We consider the following four factors when reviewing

a trial court’s evidentiary ruling under Rule 403: (1) the probative value of the evidence; (2)

the potential to impress the jury in some irrational, yet indelible way; (3) the time needed

to develop the evidence; and (4) the proponent’s need for the evidence. Erazo v. State,

144 S.W.3d 487, 489 (Tex.Crim.App. 2004).                        We also consider the number of

photographs, the size, whether they are in color or black and white, whether they are

gruesome, whether any bodies are clothed or naked, and whether the body has been

altered since the crime in some way that might enhance the gruesomeness of the

photograph to the appellant’s detriment. See Narvaiz v. State, 840 S.W.2d 415, 429

(Tex.Crim.App. 1992). In sum, “[i]f there are elements of a photograph that are genuinely

helpful to the jury in making its decision, the photograph is inadmissible only if the

emotional and prejudicial aspects substantially outweigh the helpful aspects.” Erazo, 144

S.W.3d at 491-92.


        Appellant objects to thirty-four color photographs admitted as State’s Exhibits 43-48,

50, 52-67, 69, 71, 73-74, 78-83, 85 and 87. The photographs were admitted into evidence

in conjunction with the testimony of Jimmy Rifenberg, the Amarillo Police Department crime

scene investigator who documented the crime scene and Termain’s injuries and were

briefly published to the jury by projection onto a screen.5 The photographs provided a


        5
        Appellant did not object to this form of publication to the jury. Accordingly, any grounds for objection
were waived. See Tex. R. App. P. 33.1(a).

                                                       8
logical progression leading the jury through the crime scene, assisted the jury to visualize

the crime scene, showed the extent of the wounds suffered by Termain, identified the

location of testifying witnesses, and depicted Termain’s activities immediately prior to being

shot by Appellant.6 These and other photographs are unquestionably gruesome. They

depict the location and size of the shotgun wound to Termain’s head, her exposed

cranium, her brain on the pavement, and brain matter, blood, and tissue material scattered

throughout the crime scene.


        Under the first prong of the Erazo test, we find the photographs had probative value

because they were accurate depictions of both the crime scene and Termain’s body that

would assist a jury to visualize the crime scene as well as the extent of Termain’s injuries

caused by Appellant’s criminal act. Paredes, 129 S.W.3d at 540 (quoting Sonnier v. State,

913 S.W.2d 511, 519 (Tex.Crim.App. 1995)). See also Legate v. State, 52 S.W.3d 797,

807 (Tex.App.–San Antonio 2001, pet. ref’d). The photographs were also probative

because they corroborated the testimony of trial witnesses; see Ledbetter v. State, 208

S.W.3d 723, 734 (Tex.App.–Texarkana 2006, no pet.); Moreno Denoso v. State, 156



        6
          Because the m itigation defense of “sudden passion” requires that the passion be caused, or arise,
by provocation by the individual killed, § 19.02 (a)(2), Term ain’s activities im m ediately prior to the shooting
were relevant. For instance, Appellant testified that, when he arrived at the parking lot across from the
W ishing W ell, he observed Term ain laying on a m attress with Frazier under suspicious circum stances.
Mahone testified Term ain was sitting on the ground with Frazier. Frazier testified that he was talking with
Term ain while being seated on a stool two feet away. Rifenberg’s blood spatter analysis using photographs
corroborated Frazier’s testim ony. For instance, Exhibits 57 and 58 show a void in the blood spatters
surrounding Term ain indicating Frazier was seated on a nearby stool with his legs crossed, with only one foot
on the ground. Photographs of Term ain’s body, Exhibits 71, 74 and 83, showed that she was fully clothed,
held a cigarette lighter in her hand, with a pack of cigarettes, and a fast food drink cup with a straw close by.



                                                        9
S.W.3d 166, 178 (Tex.App.–Corpus Christi 2005, pet. ref’d), and their probative value is

not diminished simply because they corroborate other uncontested testimony.                  See

Chamberlain v. State, 998 S.W.2d 230, 237 (Tex.Crim.App. 1990) (rejecting the premise

that visual evidence accompanying oral testimony is cumulative of the testimony).

Although disagreeable to look at, they depict nothing more than the reality of the brutal

crime committed. Sonnier, 913 S.W.2d at 519; Shavers v. State, 881 S.W.2d 67, 77

(Tex.App.–Dallas 1994, no pet.).         Accordingly, this first factor weighs in favor of

admissibility.


       In determining the second factor, we look at the photographs’ potential to impress

the jury in some irrational, yet indelible way. See Erazo, 144 S.W.3d at 491-92. “If a

photograph is competent, material and relevant to the issue on trial, it is not rendered

inadmissible merely because it is gruesome or might tend to arouse the passions of the

jury, unless it is offered solely to inflame the minds of the jury.” Id. (quoting Martin v. State,

475 S.W.2d 265, 267 (Tex.Crim.App. 1972)). Appellant does not claim that the pictures

are inaccurate or improperly enhanced. Having considered the photographs in relation to

the entire record, we cannot conclude the images appealed only to the juror’s emotional

side and that the jury’s decision was based on emotion rather than the relevant evidence

introduced at trial. See Erazo, 144 S.W.3d at 491-92; Moreno, 156 S.W.3d at 178-79.

This factor also weighs in favor of admissibility.




                                               10
       The third factor, the time needed to develop the evidence, also weighs in favor of

admissibility. Considering the length of the trial, the State took little time before the jury to

lay the foundation for the photographs and introduce them into evidence. See Horton v.

State, 986 S.W.2d 297, 303 (Tex.App.–Waco 1999, no pet.).


       Finally, in analyzing the fourth factor, the State’s need for the evidence, we ask,

“Does the proponent have other available evidence to establish the fact of consequence

the photograph is relevant to show?” Erazo, 144 S.W.3d at 495. And, if so, we then ask,

“How strong is that other evidence, and is the fact of consequence related to an issue that

is in dispute?” Id. at 495-96. The strength of the other available evidence to corroborate

testimony related to Termain’s activities prior to the shooting was not as strong without the

photographs. Given that Appellant’s primary issue during the punishment hearing was his

mitigation defense of “sudden passion,” this was a fact of consequence. That said, not all

of the photographs related to this issue. However, we find the fourth factor also weighs in

favor of admissibility.


       In sum, we conclude the photographs are not “so horrifying or appalling that a juror

of normal sensitivity would necessarily encounter difficulty rationally deciding the critical

issues of this case after viewing them.”            Fuller v. State, 829 S.W.2d 191, 206

(Tex.Crim.App. 1992), cert. denied, 508 U.S. 941, 113 S.Ct. 2418, 124 L.Ed.2d 640 (1993),

overruled on other grounds, Castillo v. State, 913 S.W.2d 529 (1995); Contreras v. State,

73 S.W.3d 314, 321 (Tex.App.–Amarillo 2001, pet. ref’d). The photographs depicted no


                                               11
more than what Appellant caused and what verbal testimony properly described. Saldano

v. State, 232 S.W.3d 77, 101-02 (Tex.Crim.App. 2007). The trial court did not abuse its

discretion in admitting the photographs. See Allridge v. State, 850 S.W.2d 471, 494

(Tex.Crim.App. 1991) (en banc)); Dewberry v. State, 979 S.W.2d 871, 876

(Tex.App.–Beaumont 1998, pet. ref’d).


       IV.    Harm Analysis


       Further, even assuming the trial court erred in the admission of some of the

photographs, any alleged error would still be subject to a harmless error analysis. Tex. R.

App. P. 44.2(b). Bjorgaard v. State, 220 S.W.3d 555 (Tex.App.–Amarillo 2007, pet.

dism’d). In a case where an error of nonconstitutional proportions has occurred during the

punishment phase of the trial, such error is harmless unless the court can determine that

the error affected the substantial rights of the appellant. A substantial right is affected

when the error had a substantial and injurious effect or influence in determining the jury’s

verdict. Russell v. State, 113 S.W.3d 530, 549 (Tex.App.–Fort Worth 2003, pet. ref’d)

(citing King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997)). Here, the jury’s verdict

was the rejection of Appellant’s sudden passion argument and the ultimate punishment

assessed for the crime committed.


       A rational jury could have concluded that Appellant’s attack on Termain was not

conducted under the immediate influence of sudden passion arising from adequate cause.

One who provokes or instigates a confrontation cannot claim sudden passion to excuse

                                            12
his actions. See Naasz v. State, 974 S.W.2d 418, 423, 425-26 (Tex.App.–Dallas 1998,

pet. ref’d); Westbrook v. State, 846 S.W.2d 155, 159 (Tex.App.–Fort Worth 1993, no pet.);

Villegas v. State, 791 S.W.2d 226, 239 (Tex.App.–Corpus Christi 1990, pet. ref’d).

Moreover, the passion cannot solely be the result of former provocation, § 19.02(a)(2), or

a culmination of events of which the appellant is generally aware. Naasz, 974 S.W.2d at

425. Indeed, by proving the absence of contemporaneous provocation, the State negates

the foundation upon which sudden passion must stand. See Garza v. State, 878 S.W.2d

213, 217 (Tex.App.–Corpus Christi 1994, pet. ref’d).


        The evidence is clear that Appellant provoked the confrontation with Termain—he

tracked her down. When confronted by Appellant, she did nothing to provoke or instigate

Appellant’s actions—she did not even speak. Moreover, Appellant testified that it was the

prior confrontation at the Wishing Well when he observed Termain kissing Billy Ray that

made him “flip,” an event from which Appellant had sufficient time to reflect upon and cool

down.7 There simply was no contemporaneous provocation. Rather, the instant shooting

was the result of a culmination of events that had occurred over time between Appellant

and Termain. When he was asked whether the sight of Termain at the Wishing Well

caused him to “flip,” he testified, “Oh, I really don’t know. I was just tired . . . [of] being

misused and abused. It just hit me all at once, you know.” Having provoked the incident



        7
         In instances where the defendant had a cooling off period of fifteen m inutes or an hour, courts have
not overturned the jury’s negative finding on sudden passion. See W hite v. State, 699 S.W .2d 607, 617
(Tex.App.–Dallas 1985, pet. ref’d) (ten or fifteen m inutes); G aston v. State, 930 S.W .2d 222, 226
(Tex.App.–Austin 1996, no pet.) (one hour).

                                                     13
that allegedly inflamed his passions, Appellant cannot claim his conduct arose from

adequate cause. See Naasz, 974 S.W.2d at 424-25.


       Appellant points to trial testimony indicating that Termain was unfaithful. Appellant

was confused afterwards and the shooting was out of character for him. Knowing that

one’s spouse is unfaithful is not adequate cause for murder. See Bradshaw v. State, 244

S.W.3d 490, 503 (Tex.App.–Texarkana 2007, pet. stricken); Naasz, 974 S.W.2d at 424-

425; Garza v. State, 878 S.W.2d at 219. Neither does “sudden passion” include feeling

strange, upset, or confused. Cleveland v. State, 177 S.W.3d 374, 391 (Tex.App.–Houston

[1st Dist.] 2005, pet. ref’d), cert. denied, 547 U.S. 1073, 126 S.Ct. 1774, 164 L.Ed.2d 523

(2006); Gaston v. State, 930 S.W.2d 222, 226 (Tex.App.–Austin 1996, no pet.). Moreover,

that Appellant’s actions were out of character with his past behavior provides little, if any,

evidence that he acted with “sudden passion” when he shot Termain. Appellant’s behavior

at the time of the confrontation is not measured against himself. Rather, the issue is

whether the cause would have produced that degree of anger, rage, resentment, or terror

“in a person of ordinary temper so the person is incapable of cool reflection.” § 19.02(a)(1)

(emphasis added). The test is objective, not subjective.


       Even if we were to assume that the trial court erred by admitting photographs that

should have been excluded pursuant to Rule 403, considering the fact that the jury

reasonably rejected Appellant’s claim of sudden passion, and considering the punishment

ultimately assessed (thirty-five years confinement) in light of the full range of punishment


                                             14
(5 to 99 years or life), we cannot say that the admission of the photographs in question

affected the substantial rights of Appellant. Accordingly, any error in the admission of

those photographs would have been harmless. Appellant’s single issue is overruled.


                                      Conclusion


      The trial court’s judgment is affirmed.




                                                Patrick A. Pirtle
                                                    Justice

Do not publish.




                                           15
