Affirmed and Majority and Dissenting Opinions filed April 5, 2012.




                                           In The

                            Fourteenth Court of Appeals
                                   ___________________

                                    NO. 14-10-01168-CR
                                   ___________________

                         BIONDI VERNARD ROLLE, Appellant

                                             V.

                            THE STATE OF TEXAS, Appellee


                         On Appeal from the 339th District Court
                                  Harris County, Texas
                             Trial Court Cause No. 1152256


                              MAJORITY OPINION

          A jury convicted appellant Biondi Vernard Rolle of capital murder, and the trial
court assessed automatic punishment of life imprisonment without parole. See Tex. Code
Crim. Proc. Ann. art. 37.071, § 1 (Vernon Supp. 2011). Appellant contends that a new
trial is warranted because (1) the trial court erroneously admitted into evidence an autopsy
photo of the murder victim’s unborn child; and (2) the jury charge was erroneous. We
affirm.
                                     BACKGROUND

       Appellant and his wife moved into an apartment directly above the apartment of
Guillermo Rubio and his girlfriend, Yvonne Sanchez. Although the couples initially had a
friendly relationship, they eventually began feuding after a dispute over an amount owed
for borrowed electricity. The dispute escalated to include several arguments involving
yelling and one instance in which Rubio chased appellant up the staircase to his apartment
and then kicked appellant’s door.

       Shortly before three a.m. on February 3, 2008, Rubio awoke to the sound of
gunshots in his bedroom and saw a tall shadowy figure near his doorway.                 Rubio
attempted to chase the individual but could not catch him.            Rubio returned to his
apartment, found Sanchez unresponsive, and called the police. Sanchez had been shot
twice while asleep in her bed — once behind the ear at a downward angle from a distance
of one to three feet, and once in the back. She died instantly.

       Sanchez was almost six months pregnant when she was shot. Paramedics rushed
Sanchez to the hospital in an effort to save the unborn child, but the child died shortly after
delivery via postmortem cesarean section as a result of extreme prematurity.

       Rubio informed the responding officer that he believed appellant was responsible
for the shooting. Appellant’s wife was home alone at the time of the incident; after
appellant and his wife spoke via cell phone, appellant agreed to come home. Appellant
walked up to the scene about 30 or 40 minutes later. Appellant was asked to accompany
the officers to the police station, where he gave two statements. Appellant admitted in his
second statement that he and two other men were present at Rubio’s apartment, and that he
kicked Rubio’s door. Appellant claimed one of the other individuals entered Rubio’s
apartment and shot Sanchez.

       Appellant was arrested after giving his second statement.          The State charged
appellant by indictment with capital murder, alleging that he caused Sanchez’s death

                                              2
during the course of committing or attempting to commit a burglary of a habitation owned
by Rubio. A jury convicted appellant, and the trial court imposed a mandatory sentence of
life imprisonment without parole. See Tex. Penal Code Ann. § 12.31(a) (Vernon 2011).
Appellant filed a timely appeal.

                                        ANALYSIS

I.     Admission of Photograph

       Appellant argues in his first issue that the trial court erred by admitting an autopsy
photograph of Sanchez’s unborn child into evidence during the trial’s guilt-innocence
phase because the danger of unfair prejudice substantially outweighed the photograph’s
probative value. See Tex. R. Evid. 403.

       A.     Preservation

       The State sought to introduce two photographs of Sanchez’s unborn child during
trial. Appellant’s attorney objected, and the following exchange occurred:

       [APPELLANT]: I think these are still in order, and I’m not going to have
       any objection to State’s Exhibits 45 through 58. I do have an objection to
       State’s Exhibits 61 and 62 for several different reasons. One, they are – for
       the record, I’m identifying them as photographs of the dead baby, or the
       unborn baby. I think that they are going to inflame this jury. I think that a
       404-403 review of this would find that the prejudice that they would show
       would outweigh any probative value.

       And I want to state for the record that the State’s alleged not that my client
       killed more than one person in the same criminal episode. They’ve alleged
       burglary of a habitation, intentional killing during the course of committing
       burglary of a habitation. So I think they have sufficient evidence with
       photos of the deceased, Yvonne Sanchez, as named in the indictment. And I
       think this is extra, and they don’t need it.

       And I also object to relevance and, also, object to materiality.

       [STATE]: Your Honor, we would at least ask one of the photos be
       introduced into evidence, because it is so tied in with this case. I mean, we
       have the autopsy of the child, and we’ve talked about the fact that she was
                                              3
       pregnant. We have the doctor who’s going to deliver — who delivered the
       baby as the next witness coming in. It’s all relevant to the case.

       I mean, these murders occurred at the same time. There is no – not – we’re
       not stretching here. We’re not talking about a murder that occurred after or
       before. These happened at the same time. And it’s so tied into the case that
       we ask at least one photo be introduced.

       [THE COURT]: Okay. I’m going to overrule your objection and allow
       one photo be admitted. Choose one.

       [APPELLANT]: Allow me to do that. Well, I’d like to state my objection
       to them both; however, I understand the Court’s ruling. And so, what I
       would say is I would ask that 61 be the one to be admitted, 62 not be.

       [THE COURT]: 61 will be admitted. 62 will not be admitted. And your
       objection is noted for the record.

The eight-by-ten color photograph admitted as Exhibit 61 depicts the unclothed fetus on
her back with a tube taped to her face, her legs tied together, her umbilical cord tied off, and
multiple identification tags wrapped around her body. The body as photographed is intact
and does not appear to have been altered by autopsy procedures.

       Appellant properly preserved error with his objection in the trial court; therefore, we
must determine whether admission of the photograph constitutes reversible error.

       B.     Admissibility

       Texas Rule of Evidence 403 provides:

       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.

Tex. R. Evid. 403. The admissibility of a photograph rests within the trial court’s sound
discretion based on a determination about whether the exhibit serves a proper purpose in
assisting the finder of fact. Ramirez v. State, 815 S.W.2d 636, 646–47 (Tex. Crim. App.
1991) (en banc). Generally, photographs are admissible if verbal testimony as to matters

                                               4
depicted in the photographs is also admissible. Id. at 647. An abuse of discretion occurs
when the probative value of the photograph is small and its inflammatory potential great.
Id.

       A proper Rule 403 analysis includes the following factors: (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). When reviewing the
admission of a photograph, additional factors include the number of photographs, their
size, whether they are in color or are black and white, whether they are gruesome, whether
any bodies are clothed or naked, and whether a body depicted in the photograph has been
altered by autopsy. Id.

              1.     Probative value

       The Rule 403 test’s first prong weighs in favor of exclusion because the photograph
at issue had little probative value in relation to the offense with which appellant was
charged. See id. at 492.

       As noted in the trial objection, the indictment alleges that appellant intentionally
caused Sanchez’s death while in the course of committing or attempting to commit
burglary. See Tex. Penal Code § 19.03(a)(2) (Vernon 2011). The indictment does not
allege that appellant murdered more than one person during the same criminal transaction.
See id. § 19.03(a)(7)(A). Nor does the indictment allege the murder of an individual less
than ten years of age. See id. § 19.03(a)(8). Therefore, the autopsy photograph at issue
had little if any bearing on a determination of guilt in connection with the offense with
which appellant was charged. See Prible v. State, 175 S.W.3d 724, 735–36 (Tex. Crim.
App. 2005) (trial court abused its discretion by admitting 12 color autopsy photographs of
three children who died in a fire set to cover up the murder of their parents; admission of
autopsy photos violated Rule 403 because “the cause of the children’s death was not
disputed” and “appellant was not charged with murdering them”).
                                              5
       We also note that significant evidence pertaining to Sanchez’s pregnancy and the
unborn baby’s death was admitted without objection during trial.           The doctor who
delivered the baby after Sanchez’s death described the circumstances surrounding delivery
and testified that few babies survive birth at that stage of gestation. The baby weighed
less than one pound and had no heartbeat or respiration after delivery. The assistant
medical examiner who performed the autopsy on Sanchez and on the baby testified that the
baby died from extreme prematurity. An autopsy report on the baby was admitted without
objection. Sanchez’s sister testified without objection about Sanchez’s pregnancy and the
family’s anticipation that the baby would be named Aracely.

       Insofar as the State contends that evidence pertaining to Sanchez’s pregnancy and
the unborn baby had probative value, the autopsy photograph added little to the evidence
already before the jury. See Erazo, 144 S.W.3d at 493 (photograph of unborn child “adds
nothing helpful to the already-admitted testimony that the victim was pregnant, that the
appellant knew she was pregnant, and that the fetus died as a result of the mother’s death”).

              2.     Ability to impress jury in an indelible way

       The second factor to consider — the ability of the photograph to impress the jury in
some irrational yet indelible way — also weighs in favor of exclusion.            The State
emphasizes that the trial court admitted only a single color photograph of the unborn baby
out of more than 50 admitted photographs; that much of the unborn baby’s body was
covered by large identification tags; that the body had not been altered by autopsy; and that
the unborn baby did not appear gruesome or altered aside from a tube attached to her nose
and a tied-off umbilical cord. While these circumstances bear on whether admission of
the autopsy photograph was harmful error, we do not believe as a threshold matter that they
justify admission under Rule 403’s second factor. See Reese v. State, 33 S.W.3d 238, 239
(Tex. Crim. App. 2000) (“The unborn child in the photograph appears tiny, innocent, and
vulnerable. Society’s natural inclination is to protect the innocent and the vulnerable.”).


                                             6
              3.     Time needed to develop evidence

       The time needed to develop the evidence weighs in favor of admissibility.
Although the photograph of the unborn child was published to the jury, and the State used
the photograph while questioning a medical examiner witness, the questioning of the
witness was relatively short regarding the photograph. The State offered the photograph
for admission concurrently with more than fifteen other exhibits.

              4.     Proponent’s need for the evidence

       We must answer three questions when addressing this factor: (1) Does the
proponent have other available evidence to establish the fact of consequence that the
photograph is relevant to show? (2) If so, how strong is that other evidence? (3) Is the fact
of consequence related to an issue that is in dispute? Erazo, 144 S.W.3d at 495-96.

       Regarding these three questions, ample testimony during trial established that
Sanchez was pregnant and that the fetus died. The State claims that the evidence was
“necessary to show that appellant’s murder of Ms. Sanchez caused the death of her infant
daughter because she was too young to survive outside the womb.” This fact was never in
dispute, and both the medical examiner and the delivering physician testified that the fetus
died due to prematurity.

       The State did not have a strong need for admission of the photograph because (1) it
had strong evidence and testimony other than the photograph to establish that Sanchez
died; (2) the death of the unborn child was not an element of the offense as alleged in the
indictment; and (3) Sanchez’s death was not in dispute. This factor weighs in favor of
exclusion.

              5.     Conclusion regarding admissibility factors

       Given that three of the four factors weigh in favor of exclusion, we conclude that the
trial court abused its discretion under Rule 403 by admitting an autopsy photograph of the
unborn child that was substantially more prejudicial than probative.
                                             7
         C.    Harm

         Having determined that the trial court abused its discretion in admitting a single
photograph of Sanchez’s unborn baby during the guilt-innocence phase of appellant’s trial,
we must perform a harm analysis. Reese, 33 S.W.3d at 243. The trial court’s erroneous
admission of the photograph is harmless error if, after reviewing the entire record, we have
fair assurance the error did not influence the jury or had but a slight effect upon the jury’s
verdict. See Tex. R. App. P. 44.2(b); Reese, 33 S.W.3d at 243.

         Appellant argues that the erroneous admission of this photograph during the
guilt-innocence phase of his trial was harmful because (1) the State placed “extensive
closing-argument emphasis on the death of the fetus;” (2) the jury sent a note during
deliberations requesting the State’s “pictures;” and (3) “[e]vidence of appellant’s guilt was
not overwhelming” given the absence of eyewitness testimony that appellant fired the fatal
shots.

         Our harm analysis is informed by Prible, 175 S.W.3d at 737, in which the Court of
Criminal Appeals addressed whether a new trial was warranted based on the erroneous
admission of 12 color photographs taken during the autopsies of two seven-year-old
children and one 22-month-old child who died from smoke inhalation in a fire set to cover
up the fatal shooting of their parents.      The photographs were admitted during the
guilt-innocence phase of Prible’s trial. Id. at 735. Prible was convicted of capital murder
for intentionally and knowingly causing the deaths of the children’s parents in the same
criminal transaction. Id. at 726. Prible was not charged with murdering the children.
Id. at 736.

         Most of the 12 color photographs depicted the soot-covered “neck organs,” tongue,
larynx, and lungs of each of the three children. Id. Two of the photos showed the amount
of carbon material that entered the stomachs of the 22-month-old child and one of the
seven-year-old children. Id.


                                              8
        The Court of Criminal Appeals concluded that the trial court abused its discretion in
admitting the 12 color autopsy photographs during the trial’s guilt-innocence phase over
Prible’s Rule 403 objection. Id. “The State did not need the autopsy photographs of the
children’s dissected internal organs to fully explain the crime scene or to corroborate . . .
testimony.” Id. “Sufficient corroboration was provided by witness testimony, autopsy
reports, crime scene photographs, and other autopsy photographs of the children’s bodies
before their internal organs had been removed.” Id. “Furthermore, the cause of the
children’s death was not disputed.” Id. “Most important, appellant was not charged with
murdering them.” Id. “Thus, the minimal probative value of the autopsy photographs at
issue, if any, was substantially outweighed by the danger of unfair prejudice, confusion of
the issues — by unduly focusing the jury’s attention upon the deaths of the children rather
than the deaths of their parents for which appellant was charged — and needless
presentation of cumulative evidence.” Id.

        After concluding that the trial court abused its discretion under Rule 403, the Court
of Criminal Appeals determined that the error was harmless under Texas Rule of Appellate
Procedure 44.2(b). Id. at 737.1

        In concluding that Prible’s substantial rights were not affected, the court noted that
other evidence in the record supported the State’s closing argument to the jury emphasizing
the children’s deaths. Id. (“While appellant is correct and such argument is improper, we
cannot see how the State’s argument would have been affected had the autopsy
photographs been excluded. Even the slightest reference to the crime scene and the
children’s deaths could still support that argument.”).

        The court also identified five additional factors supporting its harmless error
determination: (1) “the jury had already seen and heard about the disturbing circumstances


        1
            The Court of Criminal Appeals did not address whether the autopsy photographs affected the
jury’s deliberations during the punishment phase because the appellant raised no contention that they did
so. Id. at 737 n.27.
                                                   9
of the children’s deaths through properly admitted photographs and testimony; (2) “these
photographs were not particularly gruesome or emotionally charged . . . they were clinical
and depicted disembodied organs and tissue;” (3) the photos “pale in comparison to the
properly admitted post-mortem photographs of Steve Herrera and Nilda Tirado whose
deaths appellant was charged with intentionally causing;” (4) “the State, while
emphasizing appellant’s admission . . . that he had ‘taken out’ an entire family, did not
dwell upon or emphasize the improperly admitted post-autopsy photographs of the
children;” and (5) “these photographs have nothing to do with the disputed issue at trial of
whether appellant murdered the children’s parents as charged . . . do not affect the
determination of appellant’s guilt . . . and would not emotionally sway a factfinder until
and unless he had found that appellant was the person who had caused the parents’ deaths.”
Id.

       We employ a similar analysis here.

       As a threshold matter, there is room for discussion about whether any
non-subjective means exist for analyzing the relative impact of a single color photograph
depicting an intact fetus as compared to the impact of 12 color photographs depicting the
dissected and soot-covered organs of two seven-year-olds and a toddler. One person may
conclude that a dozen color photos depicting dissection performed upon young children are
likely to have a greater emotional impact than a single photograph depicting a fetus that has
not been altered by an autopsy. Another person may reach an entirely different and
equally defensible conclusion. We will not attempt to characterize one type of image as
being inherently more powerful than the other because any such characterization is largely
subjective and personal. Suffice it to say that both types of images are powerful and
fraught with the potential to provoke an unquantifiable emotional response.

       These circumstances prompt us to focus instead on somewhat more objective
factors to guide the harm analysis. This focus reveals close parallels between this case
and Prible.
                                             10
       Here, as in Prible, the photograph at issue was admitted during the guilt-innocence
phase of the trial. Furthermore, the State “did not dwell upon or emphasize” the admitted
photograph. See id. The State never referenced Exhibit 61 during closing argument,
either by number or description.

       The State did refer more than a dozen times during closing to the death of Sanchez’s
unborn child. These references are amply supported by unobjected-to evidence pertaining
to Sanchez’s pregnancy and the unborn baby’s death. This evidence includes an autopsy
report on Sanchez’s unborn baby, along with testimony from the assistant medical
examiner who performed the autopsy; the doctor who delivered the baby after Sanchez’s
death; and Sanchez’s sister. In light of this unobjected-to evidence, “we cannot see how
the State’s argument would have been affected had the autopsy photograph[] . . . been
excluded.” Id. The State also referenced another autopsy photo of Sanchez’s unborn
baby during closing that had not been admitted into evidence. However, by that time this
jury already had “heard about the disturbing circumstances” of the unborn baby’s death via
evidence from multiple witnesses.      The admissibility of that evidence has not been
challenged on appeal. Id. These circumstances point to a minimal impact from a single
accompanying photograph that was admitted into evidence as Exhibit 61. See id.

       The jury note referencing “pictures” does not change this conclusion. The note is
somewhat garbled.     The jury requested “more copies of charge” along with “states
pictures of both recorded statements” [sic] and “Defendants friday testimony” [sic]. It is
not clear whether the jury intended to request “pictures of” something in particular. Even
if the words “states pictures” are viewed in isolation, the trial court indisputably admitted
more than 50 pictures as exhibits proffered by the State including photos from Sanchez’s
autopsy. This circumstance diminishes the likelihood that any one picture exerted a
disproportionate influence on the jury’s deliberations during the trial’s guilt-innocence
phase. Cf. Reese, 33 S.W.3d at 244 (“[T]his emotionally charged photograph is the only
photograph that the State offered during the punishment phase.” emphasis added)).

                                             11
       We also consider the record as a whole, along with evidence adduced during the
guilt-innocence phase pertaining to the offense with which appellant was charged. See
Prible, 175 S.W.3d at 737. Appellant does not challenge the sufficiency of the evidence
to support the jury’s verdict.

       As noted above, Rubio was awakened before three a.m. by the sound of gunshots in
his apartment bedroom. He saw the shadow of a tall person and gave chase but was
unable to catch the running assailant. Rubio estimated that the assailant was between five
feet eleven and six feet tall; he was unable to see any facial features; determine the
assailant’s race; or describe what the assailant was wearing. He noticed that the apartment
door was open, and a couch he kept propped against the door had been pushed away.
Rubio saw no one else in the apartment. Another witness told police she saw three people
fleeing from the direction of Rubio’s apartment wearing dark hoodie jackets.

       Police recovered two .40 caliber Smith and Wesson shell casings from the bedroom.
Police also saw and preserved a footprint on the apartment’s front door.

       Rubio told police he believed appellant was responsible for the shooting; described
the escalating feud; and described an incident in which appellant shot off a gun days
earlier. Police attempted to interview appellant but determined that he was not at home;
they asked appellant’s wife to help locate him, and appellant returned home about 30 or 40
minutes later after speaking with his wife via cell phone.

       Appellant told police he owned a gun, which was retrieved from underneath a
blanket in the trunk of appellant’s car. It was a 9-millimeter gun that could not fire .40
caliber shells. A witness from the firearms section of the Houston Police Department
crime lab opined that the bullets recovered from Sanchez’s body were .40 caliber and were
fired from the same gun, but were not fired from appellant’s 9-millimeter gun. Appellant
denied possessing or disposing of a .40 caliber gun.



                                            12
       Police also recovered a black hoodie from the trunk. Testing for gunshot residue
on the hoodie retrieved from the trunk was negative. Appellant denied having worn the
hoodie retrieved from the trunk.

       Police noticed that the tread pattern on appellant’s shoes was similar to the pattern
of the footprint on Rubio’s apartment door. Appellant’s shoes were tested. A senior
consultant with the forensic science training and consulting company that tested
appellant’s shoes testified that a “likelihood” exists that appellant’s right shoe made the
shoe print on Rubio’s door. This determination was based on size, shape, tread design,
wear pattern, and the presence of random nicks or cuts to the tread. The consultant also
testified: “We are not saying conclusively that the right shoe that I was shown made the
impression on the door. We’re just saying that based on the agreement of the features that
we see, the likelihood exists that the right shoe made the impression on the door.”

       Appellant acknowledged the existence of the feud when questioned by police, and
he participated in two taped interviews with police. In the first interview, appellant denied
participating in the crime and said he was with several friends — including Graham
Stewart, Cory Wisnosky, and Aaron Fulton — at the time Sanchez was shot. Testimony
established that appellant is six feet, one inch tall; Wisnosky is five feet, ten inches tall; and
Fulton is five feet, seven inches tall.

       Police interviewed Stewart, Wisnosky, and Fulton, and determined that
discrepancies existed between their version of events and the version described in
appellant’s first statement. Police interviewed appellant again, and he gave a second
recorded statement.

       In his second statement, appellant admitted his presence at Rubio’s apartment at the
time of the shooting. He admitted kicking in the apartment door and carrying a weapon
but claimed that Wisnosky entered the apartment and fired the fatal shots. Appellant
could not explain why Wisnosky would shoot Sanchez.


                                               13
       Appellant testified at trial. He described the escalating feud and an incident in
which Rubio challenged him to fight. He also described the incident in which Rubio
kicked appellant’s door two or three days before the murder.

       According to appellant, he drove to Stewart’s apartment after midnight on the night
of the shooting where he met Stewart, Fulton, Wisnosky, and others. While at Stewart’s
apartment, he discussed the earlier incident in which Rubio kicked his door and, on the spur
of the moment, decided to return to his own apartment building, kick Rubio’s door, and
run. Stewart, Fulton, and Wisnosky accompanied him on the ride back to his own
building. Appellant took his 9-millimeter gun with him and put it in his waistband, but
denied knowledge that anyone else had a gun.

       Appellant denied having any agreement or discussions about what would happen
after Rubio’s door was kicked; denied asking anyone else to accompany him; and denied
giving any instructions once they arrived. Appellant also testified: “I mean, I wanted to
go over there, kick and leave; but in a sense, I did want to confront [Rubio].” Wisnosky
did not know Rubio and Sanchez.

       Appellant parked about 50 yards from his building; Fulton and Wisnosky
accompanied appellant to Rubio’s apartment while Stewart stayed with the car.

       Appellant testified that he kicked Rubio’s door once, causing it to open a couple of
inches. He testified that Wisnosky then leaned into the door, pushed it open, and entered
the apartment.    Appellant denied seeing a weapon in Wisnosky’s hand.            Appellant
testified that he “leaned in” and “stepped in” the apartment; asked Wisnosky what he was
doing; saw nothing in the darkness; heard two shots; and took off running with Fulton.

       Appellant reached the car first and left in it with Stewart. They met up with Fulton
and Wisnosky a short time later at a nearby gas station, and appellant drove all four back to
Stewart’s apartment. Appellant remained there until summoned by his wife to return to
his own apartment because the police were looking for him. Appellant acknowledged

                                             14
lying to police in his first statement, but claimed that he told the truth in his second
statement. He denied knowing that Sanchez was pregnant.

       Appellant contends on appeal that harmful error from the admission of Exhibit 61 is
evident on this record given that “[n]o eyewitness testimony was adduced that he fired the
fatal shots.” This contention fails in light of Prible. The Court of Criminal Appeals
determined the erroneous admission of autopsy photos was harmless error notwithstanding
that, as in this case, (1) the gun used to shoot the victims never was recovered; and (2) no
eyewitness testified that Prible fired the fatal shots. See Prible, 175 S.W.3d at 728 n.3 &
729. The autopsy photos “do not affect the determination of appellant’s guilt in this case
and would not emotionally sway a factfinder until and unless he had found that appellant
was the person who had caused the parents’ deaths.” Id. at 738. “In sum, we conclude
that the erroneous admission of the autopsy photographs . . . did not affect appellant’s
substantial rights” during the guilt-innocence phase of his trial. Id. In light of the record
described above, the same conclusion applies here.

       We likewise reject appellant’s contention that reversal is warranted under Reese, 33
S.W.3d at 244, and Erazo v. State, 167 S.W.3d 889, 891 (Tex. App.—Houston [14th Dist.]
2005, no pet.).    Both cases involve the admission during the punishment phase of
photographs depicting a murder victim’s unborn child. See Reese, 33 S.W.3d at 239
(eight-by-ten color photograph depicted murder victim in her casket with her unborn child,
visible and wrapped in a blanket); Erazo, 167 S.W.3d at 889 (autopsy photograph of fetus
removed from murder victim). Both cases concluded that the erroneous admission of
these photographs was harmful error necessitating a new punishment hearing. See Reese,
33 S.W.3d at 244; Erazo, 167 S.W.3d at 890-91.

       In so doing, Reese stressed that (1) the photograph at issue was the only one
admitted during the punishment phase; (2) comments by the State’s counsel at trial “seem[]
to admit that the photograph was intended to inflame the jury and influence to make its
decision on an improper basis;” and (3) the State “used and emphasized this photograph
                                             15
during closing arguments.” Reese, 33 S.W.3d at 244-45. Erazo also stressed that the
State’s argument “called special attention to the photograph of the dead fetus.” Erazo,
167 S.W.3d at 890. “[T]he State twice referred to the erroneously admitted autopsy
photograph, once specifying the exhibit number.”          Id. at 891.    “The State also
emphasized at least four times the importance of this photograph and the strong impact the
State believed the photograph would have on the jury.” Id. Erazo also considered that
“the jury assessed the maximum possible punishment” after these arguments. Id.

       The specific concerns about emphasizing the photograph that animated Reese and
Erazo do not apply here, as discussed in detail above. Erazo’s additional concern about
the jury’s imposition of the maximum possible sentence is not germane to this case because
the punishment was automatic. For these reasons, we conclude that Prible controls the
harm analysis here in the context of the erroneous admission of a photograph during the
guilt-innocence phase.

       We overrule appellant’s first issue.

II.    Charge Error

       In his second issue, appellant argues that he was egregiously harmed by an error in
the jury charge based on transferred intent instructions. Appellant contends that the
instructions erroneously omitted the burglary element in the transferred intent application
paragraph.

       The jury charge included the following instruction:

       A person is nevertheless criminally responsible for causing the result if the
       only difference between what actually occurred and what he desired,
       contemplated, or risked is that a different person or property was injured,
       harmed, or otherwise affected.

       Now, if you believe from the evidence beyond a reasonable doubt that the
       defendant, Biondi Vernard Rolle, acting alone or with Cory Wisnosky and/or
       Aaron Fulton, as a party to the offense, in Harris County, Texas, on or about
       the 3rd day of February, 2008, did then and there unlawfully and
                                              16
       intentionally shoot a firearm at Guillermo Rubio, intending that death would
       occur to Guillermo Rubio, but instead, missed Guillermo Rubio and hit
       Yvonne Sanchez, causing the death of Yvonne Sanchez with the use of a
       deadly weapon, namely, a firearm, then you will find the defendant guilty of
       capital murder, as charged in the indictment.

Appellant did not object to the transferred intent language. The jury returned a guilty
verdict on the capital murder charge.

       The inquiry here involves a two-step process. When we review a claim of jury
charge error, we first determine whether there is error. Barrios v. State, 283 S.W.3d 348,
350 (Tex. Crim. App. 2009). If there is error in the charge and appellant objected to the
error at trial, reversal is required if the error “is calculated to injure the rights of the
defendant,” which has been defined to mean that there is “some harm.” Id. (quoting
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). If the error was not
objected to, it must be “fundamental” and requires reversal only if it was so egregious and
created such harm that the defendant “has not had a fair and impartial trial.” Id.

       A.     Error

       A trial court may instruct the jury on the law of transferred intent as applied in a
capital murder prosecution. Roberts v. State, 273 S.W.3d 322, 331 (Tex. Crim. App.
2008); Norris v. State, 902 S.W.2d 428, 437 (Tex. Crim. App. 1995).

       Appellant contends the instructions on transferred intent in the application portion
are erroneous because they did not require the jury to find the elements of capital murder
based upon a murder intentionally committed in the course of committing or attempting to
commit a burglary. Appellant contends that “the omission of the crucial burglary element
in the transferred intent application paragraph lessened the State’s burden of proof and was
erroneous.” In assessing appellant’s contention, we “examine the charge as a whole
instead of a series of isolated and unrelated statements.” Dinkins v. State, 894 S.W.2d
330, 339 (Tex. Crim. App. 1995).


                                            17
       A person commits the offense of capital murder “if the person commits murder as
defined under Section 19.02(b)(1) and . . . the person intentionally commits the murder in
the course of committing or attempting to commit . . . burglary . . . .” Tex. Penal Code
Ann. § 19.03(a)(2) (West. Supp. 2011). The indictment in this case alleges that appellant
“on or about FEBRUARY 3, 2008, did then and there unlawfully . . . while in the course
and committing and attempting to commit[] the BURGLARY OF A HABITATION
OWNED BY GUILLERMO RUBIO, intentionally cause the death of YVONNE
SANCHEZ by SHOOTING YVONNE SANCHEZ WITH A DEADLY WEAPON,
NAMELY, A FIREARM.”

       The abstract portion of the jury charge tracked the statutory definitions of murder
and capital murder.

       The jury was instructed that “[a] person commits the offense of murder if he . . .
intentionally or knowingly causes the death of another; or . . . intends to cause serious
bodily injury and intentionally or knowingly commits an act clearly dangerous to human
life that causes the death of an individual.”

       The jury was instructed that “[a] person commits the offense of capital murder if he
intentionally commits murder, as hereinbefore defined . . . and the person intentionally
commits the murder in the course of committing or attempting to commit the offense of
burglary of a habitation.” The jury further was instructed that “[a] person commits the
offense of burglary of a habitation if, without the effective consent of the owner, he . . .
enters a habitation with intent to commit a felony, theft, or an assault; or . . . enters a
habitation and commits or attempts to commit a felony, theft, or an assault.”

       To convict of capital murder, the jury was instructed that “you must find from the
evidence beyond a reasonable doubt not only that on the occasion in question the defendant
was in the course of committing or attempting to commit the felony offense of burglary of
a habitation owned by Guillermo Rubio, as alleged in this charge, but also that the


                                                18
defendant specifically intended to cause the death of Yvonne Sanchez, by shooting Yvonne
Sanchez, with a deadly weapon, namely, a firearm . . . .” The jury also was instructed:

       [O]r you must find from the evidence beyond a reasonable doubt that the
       defendant, Biondi Vernard Rolle, with the intent to promote or assist in the
       commission of the offense of burglary of a habitation owned by Guillermo
       Rubio, if any, solicited, encouraged, directed, aided or attempted to aid Cory
       Wisnosky and/or Aaron Fulton in shooting Yvonne Sanchez, if he did, with
       the intention of thereby killing Yvonne Sanchez . . . .

The jury was further instructed:

       [O]r you must find from the evidence beyond a reasonable doubt that on the
       occasion in question the defendant, Biondi Vernard Rolle, entered into an
       agreement with Cory Wisnosky and/or Aaron Fulton to commit the felony
       offense of burglary of a habitation owned by Guillermo Rubio, as alleged in
       this charge, and pursuant to that agreement they did carry out their
       conspiracy, and while in the course of committing said conspiracy, Cory
       Wisnosky and/or Aaron Fulton intentionally caused the death of Yvonne
       Sanchez by shooting Yvonne Sanchez with a deadly weapon, namely, a
       firearm, and the murder of Yvonne Sanchez was committed in furtherance of
       the conspiracy and was an offense that should have been anticipated by the
       defendant as a result of carrying out the conspiracy.

This portion of the charge concluded: “[U]nless you so find, then you cannot convict the
defendant of the offense of capital murder.”

       The transferred intent application paragraph subsequently stated that the jury could
convict appellant of capital murder “as charged in the indictment” if it believed from the
evidence beyond a reasonable doubt that appellant, “acting alone or with Cory Wisnosky
and/or Aaron Fulton, as a party to the offense . . . unlawfully and intentionally [shot] . . . a
firearm at Guillermo Rubio, intending that death would occur to Guillermo Rubio, but
instead, missed Guillermo Rubio and hit Yvonne Sanchez, causing the death of Yvonne
Sanchez with the use of a deadly weapon, namely, a firearm . . . .”

       Viewing the charge as a whole, we reject appellant’s contention that the charge was
erroneous because “omission of the crucial burglary element in the transferred intent

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application paragraph lessened the State’s burden of proof . . . .” The disputed instruction
referenced capital murder “as charged in the indictment” and thereby directed the jury to
the charge that appellant “while in the course and committing and attempting to commit[]
the BURGLARY OF A HABITATION OWNED BY GUILLERMO RUBIO” did
“intentionally cause the death of YVONNE SANCHEZ by SHOOTING YVONNE
SANCHEZ WITH A DEADLY WEAPON . . . .” The jurors heard the indictment read
aloud twice, once at the beginning of voir dire and again at arraignment. As discussed
above, the indictment’s reference to burglary of a habitation was reinforced by additional
instructions and definitions addressing burglary of a habitation as a required element of
capital murder in this case. The jury answered: “We, the Jury, find the defendant, Biondi
Vernard Rolle, guilty of capital murder, as charged in the indictment.”

       Given the reference in the indictment along with additional instructions and
definitions, we do not believe the transferred intent application paragraph was confusing so
as to mislead the jury or cause it to believe that the element of burglary was unnecessary to
convict appellant of capital murder.

       B.     Harm

       Even if it is assumed for argument’s sake that the trial court erred in the transferred
intent application paragraph of the jury charge, we conclude that appellant was not harmed
by the alleged charge error.

       Because appellant failed to object to any alleged charge error, reversal is warranted
only if appellant was egregiously harmed. Warner v. State, 245 S.W.3d 458, 461 (Tex.
Crim. App. 2008). To determine “egregious harm,” we examine “the entire jury charge,
the state of the evidence, including the contested issues and weight of the probative
evidence, the arguments of counsel, and any other relevant information revealed by the
record of the trial as a whole.” Id. (citing Almanza, 686 S.W.2d at 171). The appellant
must have suffered actual, rather than theoretical, harm.        Id.   “Errors that result in
egregious harm are those that affect ‘the very basis of the case,’ ‘deprive the defendant of a
                                             20
valuable right,’ or ‘vitally affect a defensive theory.’” Id. (quoting Almanza, 686 S.W.2d
at 172.).

       With respect to the first two factors, we conclude that they do not support a
determination of egregious harm based upon the transferred intent application paragraph.

       As discussed above, the jury charge as a whole contained multiple references,
definitions, and instructions regarding burglary of a habitation as the basis for capital
murder. Thus, the charge did not mislead the jury or indicate that the element of burglary
was unnecessary to convict appellant of capital murder.

       During voir dire, the State announced its intent to establish capital murder by
proving that the murder occurred in the course of a burglary: “[W]e’re going to prove that
the defendant, charged with intentionally causing the death of the individual, committed
the murder intentionally in the course of committing or attempting to commit the felony
offense of burglary.” The overwhelming nature of the evidence at trial concerning the
burglary element of capital murder in this case reinforces a determination that no egregious
harm occurred based upon the absence of an explicit reference to burglary in the
transferred intent application paragraph. The existence of an escalating dispute between
appellant and Rubio was undisputed; in contrast, Wisnosky did not know Rubio or
Sanchez. Appellant admitted to kicking in the door to Rubio’s apartment; he also admitted
that he “stepped in” while armed with a 9-millimeter handgun.             Appellant drove
Wisnosky, Fulton and Stewart to Rubio’s apartment building; accompanied Wisnosky and
Fulton to Rubio’s apartment; and then drove them back to Stewart’s apartment after the
shooting.

       With respect to the third factor, appellant emphasizes that the State referred to
transferred intent during closing. The State argued, “If you believe the defendant intended
to kill Guillermo Rubio but instead, in that dark room, by going up to the lump in the bed
shot Yvonne Sanchez with the intent to have killed Guillermo Rubio, then he’s still guilty
of capital murder.” The State continued, “[I]f you believe that the only difference
                                            21
between what actually occurred and what he desired, contemplated or risked there, that a
different person was injured, harmed or otherwise affected, he is still guilty of the named
offense.” The State added, “If you find the only things between the intent and the
outcome is who got hurt, then the defendant is guilty.”

       We note that the State also referred multiple times during closing to burglary as an
element of capital murder. The State explained that capital murder involves a situation in
which “a defendant, with the specific intent to commit murder, commits a felony of
burglary and then intentionally commits murder, here of Yvonne Sanchez or under
transferred intent could also be of Guillermo Rubio.” The State also argued:

       There are three ways that the defendant under this charge could be found
       guilty of capital murder. One, that he kicked in that door, that he, in the
       course of committing burglary, intentionally shot at Guillermo Rubio and
       killed Yvonne Sanchez, or that his buddy, CJ, did this, that he knew it was in
       the course of committing capital murder, and he assisted or even attempted to
       aid CJ in the commission of that offense, or that they went in to commit
       burglary, and in the commission of that burglary, the murder of Yvonne
       Sanchez should have been anticipated in the furtherance of that murder. So,
       although you’re hearing those same terms over and over, those are the
       questions that you will be asked when you go back to deliberate.

These arguments underscore that burglary as an element of capital murder was repeatedly
discussed and reinforced during closing.

       In light of this record, we conclude that egregious harm has not been established in
connection with the transferred intent application paragraph in the jury charge. We
overrule appellant’s second issue.




                                            22
                                      CONCLUSION

       We affirm the trial court’s judgment.




                                         /s/    William J. Boyce
                                                Justice



Panel consists of Chief Justice Hedges and Justices Boyce and Christopher. (Hedges, C.J.
dissenting).
Publish — Tex. R. App. P. 47.2(b).




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