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                                               OPINION

                                         No. 04-08-00754-CR

                                              Richard JETT,
                                                Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                      From the 379th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2006-CR-7499
                             Honorable Bert Richardson, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Karen Angelini, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: May 12, 2010

AFFIRMED

           Richard Jett was convicted of murder and sentenced to ninety-nine years in prison. Jett

appeals the judgment, complaining the evidence is factually insufficient to support the jury’s verdict

and the trial court erred by conducting voir dire while he was absent from the courtroom, compelling

his presence before the jury during trial, and admitting autopsy photographs of the victim. We affirm

the judgment.
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                                             FACTUAL BACKGROUND

         On Wednesday, June 14, 2006, Arthur Daniels discovered the body of his father, Homer

Daniels, at Homer’s residence. Arthur called the police, and San Antonio Police Department

Detective Jimmy Willingham was one of the officers who went to the crime scene.

         Detective Willingham testified there was no sign of forced entry into the house. He saw the

victim’s body on the living room floor, and testified the body was in the early state of decomposition.

Detective Willingham observed the victim had lacerations to his face, a stab wound to the left side

of the neck, blunt force trauma on his forehead, and defensive wounds on his hands. He saw blood

on the driveway, sidewalk, and front porch, blood around a light switch in the garage, cast-off blood

on the ceiling in the room where the victim was found, and blood near the kitchen sink. Detective

Willingham told the jury that it is common for an attacker who uses a knife to repeatedly stab a

victim1 to sustain injuries to his hands and fingers. Based on his experience, the detective believed

the blood near the sink indicated the attacker washed his hands after the murder. Detective

Willingham testified the blood around the light switch in the garage indicated that a person was

“fumbling” for the light switch. He also believed the blood near the light switch and the sink

belonged to the attacker because, given the nature of the victim’s injuries, it was highly unlikely the

victim would have been able to move from where the attack occurred.

         Detective Willingham learned from Arthur that the victim’s car was missing. While he was

still at the murder scene, the detective received information the car had been found in a Wendy’s

parking lot. When Detective Willingham arrived at the parking lot, he saw the car was parked facing


         1
          … The medical examiner testified the victim suffered eight stab wounds to his head, seven of which would have
been fatal. The victim also suffered three stab wound to the chest – all potentially fatal – and fifty-two other cuts to his
body, thirty of which were to the head and neck.

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an apartment complex. There was blood on the gear shift, steering wheel, and on the exterior of the

car on the driver’s side. Detective Willingham testified that, based on the position of the car in

relation to the restaurant and the apartment complex, he believed the driver walked to the apartment

complex. However, because it was dark, he was unable to discover any blood trail leading away

from the vehicle. The detective later learned that appellant’s sister lived in the complex.

       The police developed information that led them to Alona Woods and appellant. Detective

Willingham questioned Woods, who was described as Jett’s wife. While doing so, he noticed she

did not have any cuts to her hands. He also learned that appellant had called Woods from Daniels’s

house on the evening of June 12, 2006. Detective Willingham and San Antonio Police Department

Detective Tim Angell interviewed Jett, who was in custody for an unrelated misdemeanor offense,

on June 22. The detectives testified Jett had cuts to his hands, some of which they described as being

deep. In a taped interview, which was played for the jury, Jett initially denied being at Daniels’s

house on the evening of June 12, 2006. However, he later admitted being there, and said he and

Daniels were the victims of a “home invasion.” Jett stated two masked men entered the house

through an unlocked door, and one of them had a pistol. One of the men asked Daniels for money.

When Daniels denied having any money, the man broke a beer bottle over Daniels’s head. Jett said

the other man got a knife from the kitchen and lunged at him with the knife. Jett claimed he

deflected the attack by grabbing the knife blade, cutting his hands in the process. Jett told the

detectives the men struck Daniels in the head with another beer bottle and then stabbed him. They

then forced Jett to use Daniels’s keys to unlock the garage door, but then ordered him to close and

lock it again. Jett claimed he never entered the garage. According to Jett, the man with the knife

threw it into a neighbor’s yard and then the men forced him to drive to the north side of San Antonio.


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He claimed he drove into a parking lot of a Wendy’s restaurant on Fredericksburg at the attackers’

directions. Jett said he jumped from the car and ran to his sister’s apartment, which was next to the

Wendy’s. Jett had no explanation for why the attackers directed him to that particular parking lot.

Jett told the detectives he did not call the police because he was afraid the authorities would think

he committed the crime.

       Detective Angell testified he did not entirely believe the story Jett told them in the interview.

For example, Jett stated that, although he opened the garage door, neither he nor the alleged attackers

went into the garage. However, blood the detective believed belonged to the attacker was found in

the garage. Detective Angell also interviewed Jett’s sister, Rosa Linda Medina, and learned Jett had

told her an entirely different story about how he was injured.

       Rosa Linda Medina testified Jett came to her apartment late in the evening of June 12, 2006.

Her apartment complex was located next to the Wendy’s on Fredericksburg Road. Medina told the

jury that Jett’s hands were dripping blood and he asked for her help. Jett told her that he had been

walking down the street when he was attacked by “two black guys.”

       Roxanne Guerra testified she lived at the apartment complex next to the Wendy’s. A friend

dropped her off at the corner after Guerra got off work in the early morning hours of June 13, 2006.

Guerra told the jury that while she was still in her friend’s truck, she saw a Neon2 drive into the lot

and park. The people in the Neon stayed inside the car until Guerra walked past, on the way to her

apartment. When Guerra heard the car doors open and close and the sound of footsteps, she turned

around. Guerra testified she saw three or four people who had gotten out of the Neon walking




       2
        … Other testimony established this vehicle belonged to the victim.

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behind her. She did not recognize them and thought the men appeared to be younger and Hispanic,

although she was unsure of her description.

         Alona Woods testified at trial that she lived with Jett in June 2006, and he had been her

boyfriend for over five years. She testified she had known Daniels for about ten years, and that he

had helped her over the years if she needed a ride or a place to stay. Woods testified that on June

12, 2006, she and Jett had been evicted from Jett’s apartment. They drank heavily and had an

argument. They parted and Woods later went to stay with a friend, Harold Gardner; Woods did not

know what Jett planned to do. When Woods arrived at Gardner’s house, she noticed that several

calls had been made to Gardner’s telephone from Daniels’s house. Woods testified she returned the

call and spoke to Homer Daniels. She said that while they were talking, she could hear Jett

screaming in the background.

         Woods testified she called Daniels the next day, on June 13, but nobody answered the

telephone. She said she later went to Daniels’s house, and when nobody answered the door, she

walked around to the back door. She testified she found a steak knife in the grass near the air

conditioner. She wrapped paper around the knife handle, picked it up, and threw it into the

neighbor’s yard. Woods told the jury that Jett had some mental health issues, and testified she

thought perhaps Jett had hurt himself with the knife and Daniels had taken him to the hospital. She

wanted to get rid of the knife so Jett could not injure himself with it. Woods testified she left the

house without going inside. When she learned about the murder the following day, she called

Daniels’s son and told him about the knife.3


         3
          … The knife was subsequently recovered from the neighbor’s yard and placed in evidence at trial. Dr. Jennifer
Rulon, a Bexar County medical examiner, testified the knife was capable of inflicting the type wounds she observed on
the victim.

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         Woods told the jury that after the body was discovered, Jett called her on the phone and told

her that he had done something “really bad,” but he did not tell her what it was. Woods also testified

Jett later wrote her several letters asking her “to tell those people” Jett and Woods were together “at

the time,” presumably referring to the time of the murder. Woods testified she destroyed the letters.

         Jett testified at trial, and told the jury that he met the victim through Woods. Jett said that

after he was evicted, Daniels agreed to allow Jett to store his property at Daniels’s house. Jett told

the jury that Woods had been at Daniels’s house until just before the attack.4 Jett testified he had

been drinking and that Woods spiked his beer. After Woods left, two men wearing ski masks rushed

into the house through the unlocked front door and announced, “This is a robbery!” However, Jett

told the jury he recognized the men by their voices as being his nephew, David Medina, and another

man named Richard Holenman. He explained he had not told the detectives who the men were

because he was protecting his nephew.

         Jett testified that Holenman hit Daniels with a beer bottle when Daniels resisted. Then

Medina retrieved a knife from a coffee table and attacked both Jett and Daniels with the knife. Jett

said he deflected the attack by grabbing the blade. Medina then stabbed Daniels several times in the

head. Jett testified that the men then directed him at gunpoint to the various places in the house and

garage in an attempt to find money. Then they had Jett drive them in Daniel’s car to the north side

of San Antonio. Jett testified he knew Holenman was living at a motel on Fredericksburg Road.

Although Holenman instructed him to pull into the parking lot of the motel, Jett testified he drove




         4
          … Jett testified W oods left the front door unlocked to facilitate the robbery. He also testified W oods told the
attackers the victim kept money in the garage. Jett told the jury that the robbery was “masterminded” by the victim’s
son.

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another block to the Wendy’s restaurant, and pulled into the parking lot. He testified he immediately

jumped out of the car and ran to his sister’s apartment.

       Kimberly Lander, a forensic scientist with the Bexar County crime lab, testified about the

results of her DNA analysis on various items of evidence. Both Daniels’s and Jett’s DNA profile

were found in the blood on the handle of the knife. Daniels’s DNA profile was also discovered in

the blood found on the blade of the knife, but the analysis was inconclusive as to Jett. Lander

testified Jett’s DNA profile was found in blood on the front door, the front porch stairs, a paper towel

next to the kitchen sink, the exterior door knob on the rear door of the house, the victim’s wallet and

driver’s license, and inside the back of the garage. She testified that Daniels was excluded as a donor

of the blood found outside the house. Lander told the jury that the probability of someone else

having the same DNA profile as Jett was one in 326 trillion.

                                       FACTUAL SUFFICIENCY

       Jett contends the evidence is factually insufficient to support the jury’s verdict. When

considering a factual sufficiency challenge, we look at the evidence in a neutral light giving almost

complete deference to the jury’s determinations of credibility. Lancon v. State, 253 S.W.3d 699, 705

(Tex. Crim. App. 2008). We reverse only if the evidence supporting the verdict is so weak that the

verdict seems clearly wrong and manifestly unjust or if the evidence supporting the verdict is

outweighed by the great weight and preponderance of the available evidence. Id. “Circumstantial

evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007). A case based on circumstantial evidence is reviewed on appeal for factual sufficiency




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using the same standard as that used in a direct evidence case. King v. State, 29 S.W.3d 556, 565

(Tex. Crim. App. 2000).

         Jett argues the evidence is factually insufficient because the evidence demonstrated several

people had access to Daniels’s house between the time Daniels was last seen alive and the discovery

of the body. He also argues Roxanne Guerra’s testimony that she saw three or four men getting out

of Daniels’s car contradicts the State’s theory of what occurred.5 He concludes the evidence is too

weak to link him to the murder. We disagree.

         Jett’s own testimony placed him at Daniels’s house at the time of the murder. Jett’s blood

was found on the handle of the murder weapon and in various places in and around the residence,

including on the victim’s wallet and driver’s license, and Jett admittedly drove Daniels’s car to the

Wendy’s parking lot. Although Jett’s explanation of the events accounts for much of the evidence

linking him to the murder, the jury was the sole judge of Jett’s credibility and had the discretion to

disbelieve his testimony. Jett’s credibility was called into question with evidence he had prior felony

convictions for aggravated robbery and felony theft; evidence Jett told his sister an entirely different

version of what occurred; evidence Jett told detectives a less embellished version of the story that

differed in significant details from his testimony at trial; and Alona Woods’s testimony that after the

murder Jett told her he had done “a bad thing” and asked her to lie to authorities about his

whereabouts on the night of the murder. The evidence supporting the verdict is not so weak as to

render the verdict manifestly unfair or unjust, nor is it against the great weight and preponderance

of the evidence.



         5
           … W e note that Guerra’s testimony also contradicts Jett’s story that he jumped out of the car and ran to his
sister’s apartment as soon as he pulled into the parking lot.

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                           DEFENDANT’S ABSENCE DURING VOIR DIRE

       Jett asserts the trial court violated article 33.03 of the Texas Code of Criminal Procedure by

conducting voir dire while Jett was absent from the courtroom. Article 33.03 provides in part:

                In all prosecutions for felonies, the defendant must be personally present at
       the trial . . .; provided, however, that in all cases, when the defendant voluntarily
       absents himself after pleading to the indictment or information, or after the jury has
       been selected when the trial is before a jury, the trial may proceed to its conclusion.

TEX . CODE CRIM . PROC. ANN . art. 33.03 (Vernon 2006). The State concedes error, but argues the

error was harmless.

                                             Background

       On Monday, September 15, 2008, the day voir dire was scheduled to begin, Jett was brought

from the Bexar County Jail and placed in a holding cell in the courts building. While waiting to

appear in court, he took off the civilian clothing he had been provided for trial and put them in the

toilet. When the bailiffs attempted to enter the cell, Jet swung the wet clothes at them. Jett told the

bailiffs he would assault his attorneys if taken to court. The bailiffs used a taser to obtain

compliance with their orders and eventually produced Jett in the courtroom. Jett appeared before

the court wearing only his underwear and was restrained in leg irons and handcuffs. The judge

admonished Jett that he would be removed from the courtroom and trial would proceed without him

if he was unable to “behave properly” in front of the jury. Jett refused to answer any of the judge’s

questions. The court announced it would conduct a pretrial hearing later in the week and postponed

voir dire until the following Monday, September 22.

       Jett appeared in the trial court twice more that week. Initially, Jett apologized to the court

for his earlier behavior. After the court ruled on some pretrial motions, Jett requested to represent

himself at trial. The court extensively admonished Jett about the dangers of self-representation and

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ordered an evaluation of whether Jett’s mental health issues would impair his ability to adequately

represent himself. The court stated it would decide the issue the following Monday, before voir dire.

The judge asked Jett if he could “come to court on Monday and act appropriately.” Jett responded

that he could not answer the question. Because Jett had previously told the court he had hepatitis

C and was HIV positive6, and bailiffs had advised the court that Jett had a history of spitting, the

judge stated Jett should wear a mask7 when he came to court.

        On Monday, September 22, Jett was brought into the courtroom confined to a wheelchair

because he refused to get dressed. Jett was handcuffed, shackled, and wore a mask. He had writing

on his arms. One of the bailiffs told the judge he had to “forcibly dress” Jett and then Jett urinated

in his clothes. The trial court noted that during the approximately forty-five minutes Jett was before

him, Jett kept his head hanging down, made no eye contact with anyone, and was nonresponsive to

questions. After a recess, one of the bailiffs testified that once Jett had been taken back to the

holding cell, away from the judge and his lawyers, he lifted his head, opened his eyes, and interacted

with the bailiffs. The trial court denied Jett’s request to represent himself, and announced jury

selection would begin the next day.

        The following morning, the bailiff reported to the trial court that while in the holding cell,

Jett removed his clothes, put the clothes in the toilet, and covered himself with a white powder.

When Jett was brought into the court, he told the court he did not want to be present for jury

selection. He then announced there was a “contract” on the lives of his two lawyers, and they would

be executed immediately unless they withdrew or were removed from the case. The court asked Jett

        6
          … These assertions were later verified by Dr. John Tennison, who reviewed Jett’s medical records while
evaluating Jett’s competence to represent himself.

        7
         … At points in the record the mask is described as a “spit mask.” No further description appears in the record.

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if he would act in an orderly manner and behave during the proceedings. Jett responded he would

not. The court warned Jett that he could be forced to appear at trial in jail clothes if he continued to

soil his civilian clothes. Jett responded, “You got to do what you got to do, and I’m going to do what

I got to do.” Jett told the judge he did not intend to sit in the courtroom during jury selection and

assist his lawyers in picking a jury, and said he could not “stand these bitch lawyers.” Then one of

Jett’s lawyers attempted to place a plea offer on the record, and asked Jett if he understood the offer.

Jett responded “f*ck you, man” and “F*ck both of you bitches, man.” Jett was removed from the

courtroom and jury selection began.

        During the initial stages of voir dire, the judge instructed the panel about Jett’s absence:

        This is kind of an unusual situation. I won’t comment on it too much other than to
        tell you at this point the defendant has voluntarily absented himself from the
        proceedings. That is, he does not want to be in the courtroom while the jury is being
        picked. He does not want to be in the courtroom while the case is being tried. And
        other than having to bring him in for some procedural matters or identification maters
        during the course of the trial, you may not ever see him in the courtroom. Beyond
        that, I really don’t want to comment on that. But he’s not present in the courtroom
        today . . . .

After the State conducted its general voir dire, the court had Jett brought back into the courtroom.

The judge asked Jett if it was still his desire not to be involved in voir dire. Jett responded

affirmatively and told the judge he would not behave appropriately if he were forced to remain in

the courtroom. Jett again left the courtroom.

        The defense attorneys asked the panel what they thought about Jett’s absence. Several panel

members suggested it was due to his guilt and that Jett did not want to “face the music.” Eleven

panel members indicated they agreed with this sentiment. However, when questioned individually,

four of them stated they could set aside any concern about Jett’s absence or would not hold it against

Jett. These four eventually served on the jury.

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       After voir dire was completed, but before any challenges for cause were made to the court,

the trial judge once again had Jett brought into court. The judge asked Jett if he wanted to participate

in selecting the jury. Jett kept his head hung down and did not respond to the judge’s question. Jett

was removed from the courtroom and the parties completed jury selection.

                                       Invited Error Doctrine

       The State contends Jett induced the trial judge to remove him from the court during voir dire

by engaging in a pattern of disruptive behavior. Although the State does not expressly invoke the

invited error doctrine, we believe it properly applies to the facts before us. “The doctrine of invited

error is properly thought of, not as a species of waiver, but as estoppel.” Prystash v. State, 3 S.W.3d

522, 531 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1102 (2000). “[T]he law of invited error

estops a party from making an appellate error of an action it induced.” Id. Here, the trial court was

faced with the choice of forcing Jett to attend voir dire or removing him from the courtroom.

Because Jett had indicated he would disrupt the proceedings in a manner similar to his past conduct,

the court reasonably concluded the only way voir dire could proceed without significant disruption

was to remove him. Under the particular facts of this case, we hold Jett invited any error and he is

estopped to claim his absence from the courtroom during voir dire violated article 33.03. See Smith

v. State, 51 S.W.3d 806, 810 (Tex. App.—Texarkana 2001, no pet.) (declining to hold article 33.03

is violated when defendant refuses to remain in courtroom for voir dire and indicates he will disrupt

proceedings if forced to do so, and holding error, if any, was harmless).

                                    Article 33.03 Harm Analysis

       We further conclude any violation of article 33.03 in this case was harmless. Jett argues only

statutory, nonconstitutional error. Accordingly, we disregard any error that did not affect Jett’s


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substantial rights. See TEX . R. APP . P. 44.2(b). A defendant’s substantial rights are affected when

the error had a substantial and injurious effect or influence on the jury’s verdict. Id. If the error had

no or only a slight influence on the verdict, the error is harmless. Johnson v. State, 967 S.W.2d 410,

417 (Tex. Crim. App. 1998). In making this determination, we consider the entire record, including

testimony, physical evidence, jury instructions, the State’s theories and any defensive theories,

closing arguments, and voir dire if applicable. Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim.

App. 2003).

        Jett argues his substantial rights were affected because he had previously met two of the petit

jurors. In a letter placed into the record after testimony began, Jett stated he had met one of the

jurors at a record store and on another occasion bought the juror beers at a bar. Jett stated he met

the second juror at a church bible study, where he learned the juror had been a victim of crime and

had a friend who was murdered. Nothing in the record identifies the jurors to whom Jett was

referring and no juror ever reported having prior contact with Jett. Jett did not provide any further

facts or any argument that his alleged previous interactions with the jurors caused them to be unfair

or impartial.

        A review of the remaining record reveals that any error in proceeding with voir dire in Jett’s

absence had no more than slight effect on the jury’s verdict. Defense counsel discussed possible

reasons for Jett’s absence with the panel during voir dire. Although some of the jurors initially

indicated they might hold Jett’s absence against him, each of them later stated Jett’s absence would

not be a factor in their verdict. The record reflects Jett was not in the courtroom during much of his

trial, thus Jett’s absence during voir dire was not extraordinary. The harm occasioned by a violation

of article 33.03 would ordinarily be depriving the defendant the opportunity for meaningful


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involvement in jury selection. However, in this case, Jett was given the opportunity to participate

and expressly told the trial court he would not assist his lawyers in picking a jury, even if he were

forced to be present. Finally, the State did not refer to Jett’s absence during the presentation of the

evidence or closing arguments. In light of the record as a whole, any error did not have more than

slight effect upon the jury’s verdict.

                               FORCING DEFENDANT’S PRESENCE AT TRIAL

         Jett next complains the trial court erred by forcing him to appear before the jury confined in

a wheelchair and in “an agitated and distressed state” so he could be identified by witnesses. Jett

casts his argument as if his appearance were a piece of evidence, and argues his physical appearance8

and conduct before the jury caused him unfair prejudice that substantially outweighed the probative

value of the evidence. See TEX . R. EVID . 403 (relevant evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice). The State contends it needed

the witnesses to make in-person identifications of Jett because his appearance had changed since his

arrest. It further argues the trial court was justified in having Jett restrained because of Jett’s

persistent disruptive behavior. Jett counters that the four witnesses who identified him — the two

detectives who took Jett’s statements, Woods (Jett’s girlfriend of five years), and Jett’s sister Rosa

Linda Medina — were all familiar with him and could have credibly identified him from a

photograph.9



         8
           … The record does not contain any pictures of Jett or a physical description of Jett’s appearance. From
comments made by the trial participants, we discern Jett was confined to a chair that had wheels and straps binding at
least his chest and arms to the chair, wore jail clothing, was handcuffed and shackled, and wore a mask that covered his
mouth, and at times, his nose.

         9
          … Jett does not argue his appearance before the jury shackled, in jail clothing, and confined to a wheelchair
violated any of his constitutional rights.

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         We review a trial court’s admission of evidence over a rule 403 objection for abuse of

discretion. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). A court abuses its

discretion when its decision lies outside the zone of reasonable disagreement. McCarty v. State, 257

S.W.3d 238, 239 (Tex. Crim. App. 2008). In order to preserve any error, “an objection must be

made each time inadmissible evidence is offered unless the complaining party obtains a running

objection or obtains a ruling on his complaint in a hearing outside the presence of the jury.” Lopez

v. State, 253 S.W.3d 680, 684 (Tex. Crim. App. 2008).

         On the first day of testimony, Jett was brought into the courtroom so Detective Willingham

could identify him. Before Jett was brought in, his attorney objected to the identification because

the probative value of conducting the in-person identification was outweighed by the prejudicial

effect Jett’s appearance in his current state would have on the jury. Jett’s attorney stated “this

witness” could identify Jett by other means, such as the mug shot taken the day Jett was arrested.

The trial court overruled the objection. Although Jett initially preserved error by objecting and

obtaining a ruling before Detective Willingham’s identification, Jett subsequently waived any error

by failing to object when he was brought into court to be identified by witnesses on three separate

occasions the next day. Moreover, Jett voluntarily appeared in court for all of the proceedings on

the third and fifth days of testimony. On each of those days, Jett was again in handcuffs, restrained

in a wheelchair, wearing jail clothes, and wearing a mask. Jett’s attorneys10 did not make a rule 403

objection to Jett’s appearance before the jury on any of these occasions. We hold Jett did not




         10
          … In a colloquy between Jett and the trial judge, Jett asserted that testifying from the chair violated his due
process. However, his attorneys did not object on this ground.

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preserve his error on this point because he failed to object to the “evidence” each time it was

presented to the jury.

                         IMPROPER ADMISSION OF AUTOPSY PHOTOGRAPHS

       Jett next complains the trial court abused its discretion in admitting thirty-five autopsy

photographs. Jett argues the autopsy photographs were cumulative because the jury had already seen

pictures and a video of the crime scene, which included close-ups of several wounds. Jett contends

the photographs depict the same wounds as the video, but taken from different angles and distances.

He argues the only purpose of the photographs was to inflame the jury and persuade it to convict on

an improper basis, and their admission violated rule 403 of the Texas Rules of Evidence. In

determining whether the probative value of photographs is substantially outweighed by the danger

of unfair prejudice, the court may consider a variety of factors, including: “the number of exhibits

offered, their gruesomeness, their detail, their size, whether they are in color or black-and-white,

whether they are close-up, whether the body depicted is clothed or naked, the availability of other

means of proof, and other circumstances unique to the individual case.” Williams v. State, 301

S.W.3d 675, 690 (Tex. Crim. App. 2009), petition for cert. filed, — U.S.L.W. — (U.S. Feb. 18,

2010) (No. 09-9635). “Autopsy photographs are generally admissible unless they depict mutilation

of the victim caused by the autopsy itself.” Id. A photograph is also “generally admissible if verbal

testimony about the matters depicted in the photograph is also admissible.” Paredes v. State, 129

S.W.3d 530, 539 (Tex. Crim. App. 2004).

       Here, thirty-two photographs show the eleven stab wounds and fifty-two other cut wounds

inflicted on Daniels. Three pictures show Daniels’s dentures, which appear to have been knocked

from his mouth during the attack. The dentures show damage resulting from the force of the attack.


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None of the photographs show any mutilation caused by the autopsy. Jett argued exhibit 150 was

especially gruesome.11 The State countered that exhibit 150 was the best picture showing a wound

that went through the lower lip and the “gigantic” laceration above the victim’s eyebrow. No other

photograph showed that laceration. The medical examiner testified she had taken many more

autopsy photographs and that she had selected the pictures that best showed the injuries. The

medical examiner testified she took all the autopsy photographs except exhibit 150, which she

described as an “identification” photograph taken by staff in her office. Many of the photographs

show close-ups of injuries and were used by the medical examiner during her testimony to describe

the wounds inflicted upon the victim.

        The trial court did not abuse its discretion in admitting the photographs. The medical

examiner’s testimony about the wounds was relevant and the pictures were merely a visual

representation of that testimony. The wounds were also described in the autopsy report, which was

admitted into evidence without objection. Jett’s argument is that the results of the crime were

horrific, but the result of the crime is the very issue that is relevant and probative:

        Appellant must realize that it is precisely the quality which we describe as
        “powerful” which gives rise to his arguments that the photographs are prejudicially
        inflammatory. But when the power of the visible evidence emanates from nothing
        more than what the defendant has himself done we cannot hold that the trial court has
        abused its discretion merely because it admitted the evidence. A trial court does not
        err merely because it admits into evidence photographs which are gruesome.

Id. at 540 (quoting Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995). Jett’s issue

concerning the photographs is overruled.




        11
          … Exhibit 150 shows Daniels’s face and an identification number laying across his chest. Numerous injuries
appear on his face and his tongue appears to be swollen and protruding from his mouth.

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                                        CONCLUSION

     The judgment of the trial court is affirmed.



                                                    Steven C. Hilbig, Justice



PUBLISH




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