Affirmed as Modified and Opinion Filed July 20, 2018.




                                             In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-17-01188-CR

                       JESSIE ALEXANDER LUNA, Appellant
                                               V.
                          THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 2
                                   Dallas County, Texas
                            Trial Court Cause No. F-1630417

                             MEMORANDUM OPINION
                           Before Justices Lang, Myers, and Stoddart
                                  Opinion by Justice Stoddart

       A jury convicted Jessie Alexander Luna of the murder of Jepatrick Morgan-Wright and

assessed punishment at fifty years’ confinement in prison. Luna argues the trial court erred by

admitting a crime scene video that was inflammatory and unfairly prejudicial and that the judgment

should be modified to correct several errors. We modify the trial court’s judgment and affirm as

modified.

                                         BACKGROUND

       Morgan-Wright was in his front yard with Lucas Quetel and Leanna Wallace when they

saw a black Ford drive by with Jessica Martinez, Joe Salas, and Luna inside. Martinez owed

money to Morgan-Wright from a prior drug transaction. Morgan-Wright and his friends entered

Wallace’s vehicle, and followed the Ford until it stopped at a stop sign. Morgan-Wright exited the
vehicle and walked toward the Ford to talk with Martinez. As he approached, Luna exited the

Ford holding a gun and met Morgan-Wright. They exchanged words and Luna pointed the gun at

Morgan-Wright’s head. Morgan-Wright told Luna, “You not gonna shoot me.” Luna then aimed

at Morgan-Wright’s chest and shot him. Luna watched as Morgan-Wright stumbled back toward

Wallace’s car and fell on the street. Luna and the occupants of the Ford then left the scene.

Wallace called police and attempted to aid Morgan-Wright. Police and emergency medical

personnel arrived soon thereafter, but were unable to revive Morgan-Wright. He died from a single

gunshot wound to the chest.

                                             ANALYSIS

        In his first issue, Luna contends that the trial court erred by admitting a crime scene video

recording over his objection that the probative value was outweighed by the prejudicial effect. See

TEX. R. EVID. 403. Dallas police officer Ryan Smola testified he arrived at the scene after the

shooting and assisted Grand Prairie police. A video recorded by Officer Smola’s body camera

was offered in evidence. Luna objected to the recording under rule 403, but the trial court

overruled the objection and allowed the State to publish the video to the jury. The video recorded

efforts by police and EMTs to revive Morgan-Wright. Luna moved for a mistrial after publication

of the video on grounds it was inflammatory and highly prejudicial. He commented that people in

the courtroom “were screaming and running out the door.” The trial court denied the motion for

a mistrial.

        We review the trial court’s decision to admit or exclude evidence for an abuse of discretion.

Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). The trial court abuses its discretion

when the decision falls outside the zone of reasonable disagreement. Id.

        Rule 403 of the Texas Rules of Evidence allows for the exclusion of otherwise relevant

evidence when its probative value is substantially outweighed by a danger of unfair prejudice,


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confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative

evidence. TEX. R. EVID. 403. Rule 403 favors the admission of relevant evidence and carries a

presumption that relevant evidence will be more probative than prejudicial. Gallo v. State, 239

S.W.3d 757, 762 (Tex. Crim. App. 2007). A court may consider many factors in determining

whether the probative value of photographic evidence is substantially outweighed by the danger

of unfair prejudice, 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. Davis v. State, 313 S.W.3d 317, 331 (Tex. Crim. App. 2010); see

also Fields v. State, 515 S.W.3d 47, 56 (Tex. App.—San Antonio 2016, no pet.) (using same

factors in rule 403 analysis of crime scene video).

        Here, the video recording is in color and is approximately nine minutes in length. It shows

Morgan-Wright lying in the street while two officers perform CPR. Morgan-Wright was clothed

but his shirt had been cut away. Blood is shown pooling near Morgan-Wright’s head and flowing

down the incline of the street to the curb. Morgan-Wright’s face is shown covered in blood from

his eyes to his chin. At one point, the officers rolled him on his side to inspect his back and

observed blood beneath Morgan-Wright’s head and upper body. When officers rolled Morgan-

Wright again, blood appears to the right of his head. The video shows Morgan-Wright being

placed on a stretcher and carried to an emergency vehicle while officers continued to perform CPR.

        Luna argues the State had no need to show the video to further its opposition to his claim

of self-defense, the video was unfairly prejudicial, it had a tendency to confuse or distract the jury

from the main issues, and it was cumulative of the autopsy report and still photos of the victim’s

injuries.

        Because there was evidence raising self-defense, the State had the burden to establish the

                                                 –3–
elements of murder beyond a reasonable doubt and to persuade the jury beyond a reasonable doubt

that appellant did not kill in self-defense. See Mendez v. State, 515 S.W.3d 915, 921 (Tex. App.—

Houston [1st Dist.] 2017), aff’d, 545 S.W.3d 548 (Tex. Crim. App. 2018). “A visual image of the

injuries appellant inflicted on the victim is evidence that is relevant to the jury’s determination.”

Gallo, 239 S.W.3d at 762. The fact that the jury also heard testimony regarding the injuries

depicted does not reduce the relevance of the visual depiction. Id. Although Luna claims the video

is unfairly prejudicial, the video does nothing more than reflect the gruesomeness of the offense,

which is not a sufficient reason for excluding evidence. See Ripkowski v. State, 61 S.W.3d 378,

392 (Tex. Crim. App. 2001).

       The Court of Criminal Appeals has held video and still photographs are not entirely

cumulative of each other. Id. The form of presentation differs and therefore a video has its own

value and impact before the jury. See Gordon v. State, 784 S.W.2d 410, 412 (Tex. Crim. App.

1990) (“Video recordings in general may be more helpful to a jury than still photographs.”). A

video offers a panoramic view of the scene depicting the dimensions, size, and close proximity of

the crime scene not offered by photographs. See Ripkowski v. State, 61 S.W.3d at 392.

       The record supports the trial court’s conclusion that the probative value of the video was

not substantially outweighed by the danger of unfair prejudice. We conclude the trial court’s

decision to admit the video was within the zone of reasonable disagreement and was not an abuse

of discretion. We overrule appellant’s first issue.

       In his second issue, appellant contends the judgment should be modified to correctly reflect

the date of the judgment, the names of the attorneys representing the parties, the statute of the

offense, the finding on a deadly weapon, as well as the plea and finding on the first enhancement

paragraph. The State agrees and raises two additional errors by cross-point related to appellant’s

state identification number and time credit.

                                                –4–
       This Court may modify the trial court’s judgment to make the record speak the truth when

it has the necessary data and information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State,

865 S.W. 2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W. 2d 526, 529 (Tex.

App.—Dallas 1991, pet. ref’d). We conclude the suggested modifications are supported by the

record. We modify the trial court’s judgment to correctly reflect “10/6/2017” as the date of the

judgment, Raquel Jones as the State’s attorney, Richard Franklin as the defendant’s attorney,

“19.02 Penal Code” as the statute of the offense, “Yes, a firearm” as the deadly weapon finding,

“True” as the plea and finding on the first enhancement paragraph, “4/14/2016” as the date of

arrest on appellant’s time credit, and 06579485 as his state identification number.

       As modified, we affirm the trial court’s judgment.




                                                  /Craig Stoddart/
                                                  CRAIG STODDART
                                                  JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
171188F.U05




                                               –5–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 JESSIE ALEXANDER LUNA, Appellant                     On Appeal from the Criminal District Court
                                                      No. 2, Dallas County, Texas
 No. 05-17-01188-CR         V.                        Trial Court Cause No. F-1630417.
                                                      Opinion delivered by Justice Stoddart.
 THE STATE OF TEXAS, Appellee                         Justices Lang and Myers participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as indicated in the following table:

                    Section to be modified                Replace existing text with:
           State ID No.                                 06579485
           Date Judgment Entered                        10/6/2017
           Attorney for State                           Raquel Jones
           Attorney for Defendant                       Richard Franklin
           Findings on Deadly Weapon                    Yes, a firearm
           Plea to 1st Enhancement Paragraph            True
           Findings on 1st Enhancement Paragraph        True
           Statute for Offense                          19.02 Penal Code
           Time Credited                                From 4/14/2016 to 10/6/2017

As REFORMED, the judgment is AFFIRMED.


Judgment entered this 20th day of July, 2018.




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