Opinion filed September 12, 2019




                                       In The

        Eleventh Court of Appeals
                                    __________

                              No. 11-17-00264-CR
                                  __________

                         RYAN CARTER, Appellant
                                          V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 161st District Court
                              Ector County, Texas
                        Trial Court Cause No. B-44,752


                     MEMORANDUM OPINION
      The jury convicted Appellant, Ryan Carter, of capital murder and assessed his
punishment at life imprisonment without parole. Appellant brings three issues on
appeal. In his first issue, Appellant contends that the trial court erroneously admitted
certain autopsy photographs of the victim. In his second issue, Appellant asserts that
the trial court erred by allowing the State to make an improper jury argument. In his
third issue, Appellant argues that the trial court erred when it gave an improper
definition and application paragraph in the jury charge. We affirm.
                                 Background Facts
      Appellant was charged by indictment with the capital murder of Maikil
Maduok. The indictment alleged that Appellant “intentionally cause[d] the death of
[Maduok], by stabbing him with a deadly weapon, to-wit: a knife, [while Appellant
was] in the course of committing or attempting to commit the offense of robbery of
Maikil Maduok or Angelina Garang.”
      At trial, Maduok’s wife, Angelina Garang, testified for the State. Garang
testified that, during the late-night hours of February 19, 2015, she and Maduok went
to drop off their car at a glass repair shop in Ector County. They drove in separate
cars and planned to drive home together. After they arrived, Maduok got out of his
car to check where he could lawfully park the car; Garang stayed inside her car.
During this time, Garang noticed Appellant approaching Maduok. Garang explained
that Appellant was carrying a gun and repeatedly demanded money. Garang called
9-1-1 while inside her car.
      Garang testified that, in response to Appellant’s demands and as Appellant
pointed his gun at Maduok, a struggle ensued between Maduok and Appellant.
Maduok quickly grabbed Appellant, caused Appellant to hit the ground, and got on
top of Appellant. Garang stated that Appellant still had the gun in his hand as
Maduok struggled to keep Appellant down. Garang then discarded her phone and
went to help Maduok. Garang testified that Appellant told Maduok: “[M]-----f----r,
I need f-----g money. Get your f-----g face off me.” According to Garang, Appellant
also said: “[M]-----f----r, I’m not going to let you go nowhere” and “I need that f---
--g money, you’d better give me that f-----g money.” Garang eventually got on the




                                          2
ground and pulled the gun away from Appellant. Garang then returned to her car,
threw the gun inside, and went back to assist Maduok.
      When Garang returned, Appellant was still fighting with Maduok; at this
point, they were both standing up. Garang testified that Appellant said: “[G]ive me
my gun.” Garang then saw Appellant strike Maduok with what she believed was
Appellant’s hand, and Maduok then fell to the ground. Appellant then started to run
away, and Garang ran after him. Appellant was apprehended by a good Samaritan.
Garang testified that, during Appellant’s encounter with the good Samaritan,
Appellant told him: “[M]-----f----r, I will, I will stab you. . . . I will stab you with
the knife.”
      Garang stated that, after Appellant was stopped, she returned to Maduok.
Garang noticed that Maduok had not moved and had not said anything. Garang also
noticed a pool of blood forming around Maduok. The evidence showed that, when
Garang saw Appellant strike Maduok, Appellant had fatally stabbed Maduok in the
neck with a knife.      Law enforcement arrived shortly thereafter and arrested
Appellant.
      Dr. Susan Roe, a deputy medical examiner, performed an autopsy on Maduok.
At trial, Dr. Roe testified about Maduok’s injuries and the manner and cause of
death. Dr. Roe used several photographs of Maduok’s autopsy to help the jury
understand her testimony. According to Dr. Roe, the autopsy revealed a knife
embedded into the left side of Maduok’s neck; the blade of the knife was “all the
way in.” Dr. Roe explained that the knife blade “went into various structures of the
neck, and through the area of the vertebral column and the spinal column.” Dr. Roe
stated that it takes “some force” to inflict such injuries. Additionally, Dr. Roe noted
that the spinal cord was transected and that an artery supplying blood to the brain
was torn away. Dr. Roe opined that either injury would have been fatal. Dr. Roe


                                           3
ultimately concluded that the manner of Maduok’s death was homicide and that the
cause of his death was a stab wound to the neck. Dr. Roe also testified that, given
the many vital structures in the neck, if a person wanted to inflict a non-life-
threatening injury upon someone, that person “wouldn’t go for the vital areas.”
      After the admission of other evidence and witness testimony, the jury found
Appellant guilty of capital murder as charged in the indictment. This appeal
followed.
                                      Analysis
      In Appellant’s first issue, he contends that the trial court erred when it
admitted State’s Exhibit Nos. 130 through 135, which were autopsy photographs of
Maduok’s internal injuries. According to Appellant, because the photographs were
gruesome, had no probative value, and depicted mutilation of Maduok caused by the
autopsy itself, they should have been excluded under Rule 403 of the Texas Rules
of Evidence. We disagree.
      At the outset, we note that Appellant did not object to the admission of State’s
Exhibit No. 135. As a result, Appellant failed to preserve his complaint regarding
that exhibit for appellate review. See TEX. R. APP. P. 33.1(a); Wilson v. State, 71
S.W.3d 346, 349 (Tex. Crim. App. 2002). Accordingly, we will limit our analysis
to State’s Exhibit Nos. 130 through 134.
      State’s Exhibit No. 130 depicts Maduok lying on the examination table. The
photograph focuses on the top of Maduok’s exposed brain after the top of Maduok’s
scalp and skull had been removed. The photograph also shows extensive bleeding
at the base of the brain near the entry wound. Additionally, State’s Exhibit Nos. 131
through 134 depict, respectively: the remaining portion of Maduok’s empty skull
after the brain and eyes had been removed; a close-up of the inside of Maduok’s
skull showing damage caused by the knife; the base of Maduok’s brain after it was


                                           4
removed; and a close-up view of the end of the brain stem and the beginning of the
spinal cord.
      We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002); see also
Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007) (“The admissibility of
a photograph is within the sound discretion of the trial judge.”). We will not reverse
the trial court’s ruling unless the ruling falls outside the zone of reasonable
disagreement. Torres, 71 S.W.3d at 760. We will not disturb a trial court’s
evidentiary ruling if it is correct on any theory of law applicable to that ruling. De
La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
      Rule of Evidence 403 provides that relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice.
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, 239 S.W.3d at 762.
      An analysis under Rule 403 includes the following: (1) how probative the
evidence is; (2) the potential of the evidence to impress the jury in some irrational
but nevertheless indelible way; (3) the time the proponent needs to develop the
evidence; and (4) the proponent’s need for the evidence. See Shuffield v. State, 189
S.W.3d 782, 787 (Tex. Crim. App. 2006). Furthermore, a number of additional
factors may also be relevant in the analysis, including the number of photographs
offered, their gruesomeness, their detail, their size, whether they are in color or
black-and-white, whether they are close-up images, whether the body depicted is
clothed or naked, the availability of other means of proof, and other circumstances
unique to the individual case. See Williams v. State, 301 S.W.3d 675, 690 (Tex.
Crim. App. 2009).


                                          5
      Autopsy photographs are relevant to show the manner and means of death.
Moreno v. State, 1 S.W.3d 846, 857 (Tex. App.—Corpus Christi 1999, pet. ref’d).
Autopsy photographs are generally admissible unless they depict only the mutilation
caused by the autopsy itself. Hayes v. State, 85 S.W.3d 809, 816 (Tex. Crim. App.
2002). But mutilation caused during an autopsy is not necessarily fatal to the
admissibility of the photograph when the photograph is highly probative of the
medical examiner’s findings and conclusions or when it allows the jury to see an
internal injury. Gallo, 239 S.W.3d at 763 (concluding that the trial court did not err
by admitting photographs of the decedent’s rib, skullcap, and brain, all visible due
to the decedent’s autopsy, because they were necessary to show the injuries
sustained).
      Here, although all five photographs were in color and could be considered
gruesome, autopsy photographs are often gruesome, and a trial court does not abuse
its discretion by admitting such photographs when it would otherwise be difficult to
show a victim’s injury without altering the body in some way. See Herrera v. State,
367 S.W.3d 762, 777 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing
Davis v. State, 313 S.W.3d 317, 331 (Tex. Crim. App. 2010) (concluding that
photograph of cross-sectioned tongue was admissible because it showed an injury
that was not otherwise visible)).
      The trial court could have concluded that the five photographs were probative
of the nature of the crime and manner of death. Maduok’s internal injuries could
only be visible after manipulation during the autopsy. See Harris v. State, 661
S.W.2d 106, 108 (Tex. Crim. App. 1983) (concluding that the trial court did not err
by admitting photograph of decedent’s skull with skin deflected because it was
necessary to show a skull fracture). Thus, we conclude that the trial court did not
abuse its discretion by admitting the photographs of Maduok’s autopsy. Based on


                                          6
the record before us, we cannot say that the trial court abused its discretion by
determining that the probative value of the photographs was not substantially
outweighed by the danger of unfair prejudice to Appellant.
      Even if the photographs were unduly prejudicial under Rule 403, we conclude
that their admission was harmless error. The erroneous admission of evidence
generally constitutes nonconstitutional error. See Motilla v. State, 78 S.W.3d 352,
355 (Tex. Crim. App. 2002). We must disregard a nonconstitutional error if it does
not affect substantial rights. TEX. R. APP. P. 44.2(b). “A substantial right is affected
when the error had a substantial and injurious effect or influence in determining the
jury’s verdict.” Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014).
“[S]ubstantial rights are not affected by the erroneous admission of evidence ‘if the
appellate court, after examining the record as a whole, has fair assurance that the
error did not influence the jury, or had but a slight effect.’” Motilla, 78 S.W.3d at
355 (quoting Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)).
      When we consider the weight of the other evidence admitted at trial, including
additional photographs of Maduok’s autopsy and the testimony of Garang, we
conclude that the admission of State’s Exhibit Nos. 130 through 134 did not unduly
influence the jury in its decision. We overrule Appellant’s first issue.
      In his second issue, Appellant asserts that the trial court erred by allowing the
State to make an improper jury argument. During closing arguments, the prosecutor
argued that, when Appellant loaded his firearm, Appellant formed the intent to kill.
To support this assertion, the prosecutor made the following statements: “Law
enforcement officers, including myself, can carry weapons. And when we carry a
weapon, and we load it, we have conformed [sic] the intent to kill. None of us want
to kill, none of us plan to kill.” Before the prosecutor could finish, Appellant’s trial
counsel objected.     Appellant’s trial counsel argued that testimony about the


                                           7
prosecutor’s own experience and experience of other police officers and what they
intend was “completely out of the record.” The trial court overruled the objection.
The trial court then stated: “The jury will remember the evidence.”
          On appeal, Appellant argues that the prosecutor’s challenged statements were
not supported by the evidence. According to Appellant, “[n]o testimony in the
record indicates that law enforcement officers form the intent to kill every time they
take a loaded gun with them.” Appellant also argues that the prosecutor’s challenged
statements do not fall within any of the four parameters of permissible closing
arguments. As a result, Appellant asserts that the trial court erred when it overruled
Appellant’s objection to improper jury argument.
          A trial court’s ruling on an objection to improper jury argument is reviewed
for abuse of discretion. See Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App.
2004). “Permissible jury argument falls into one of four areas: (1) summation of the
evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument
of opposing counsel; or (4) a plea for law enforcement.” Gallo, 239 S.W.3d at 767;
see Dukes v. State, 486 S.W.3d 170, 183 (Tex. App.—Houston [1st Dist.] 2016, no
pet.). To determine whether a party’s argument properly falls within one of these
categories, a reviewing court must consider a challenge to the closing argument in
the context of the entire record, including the complete arguments of both parties.
Sandoval v. State, 52 S.W.3d 851, 857 (Tex. App.—Houston [1st Dist.] 2001, pet.
ref’d).
          Assuming, without deciding, that the trial court erred when it overruled
Appellant’s objection, we conclude that the alleged error was harmless.            An
improper comment made in closing argument about matters outside the record is
generally considered a nonconstitutional error. Martinez v. State, 17 S.W.3d 677,
692 (Tex. Crim. App. 2000).          A nonconstitutional error that does not affect


                                            8
substantial rights must be disregarded. TEX. R. APP. P. 44.2(b); Martinez, 17 S.W.3d
at 692; Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). To determine
the harm of an improper jury argument, three factors are balanced: (l) the severity of
the misconduct (the magnitude of the prejudicial effect); (2) curative measures (the
efficacy of any cautionary instruction by the trial court); and (3) the certainty of the
conviction in the absence of misconduct (the strength of the evidence that supports
the conviction). Martinez, 17 S.W.3d at 692–93.
      First, based on our review of the record, the severity of the misconduct was
not unduly prejudicial. Appellant was charged with intentionally causing the death
of Maduok by stabbing Maduok with a knife. As such, the prosecutor’s isolated
statement about whether loading a firearm constitutes an intent to kill was not
directly related to the dispositive question of whether Appellant intended to kill
Maduok when Appellant stabbed Maduok with a knife. Moreover, after Appellant’s
trial counsel objected to the prosecutor’s argument, the prosecutor quickly
abandoned the argument and did not mention the intent of himself or law
enforcement again. The State’s main focus during closing arguments was not on
whether Appellant intended to kill Maduok when Appellant loaded his firearm, but
whether Appellant intended to kill Maduok when Appellant stabbed him with a
knife. The State argued at length that Appellant did possess such an intent when he
stabbed Maduok, given the location where Appellant stabbed Maduok (the neck),
the force Appellant used, and the extensive damage to the internal structures of
Maduok’s neck, including the severing of his spinal cord. The State also argued that
Appellant could have escaped but chose not to. Additionally, the State emphasized
Appellant’s own testimony, where he testified: Maduok “was choking the life out of
me. It was either me or him.”




                                           9
      Second, we assess the efficacy of any curative measures taken by the trial
court. First, we note that, after the trial court overruled the objection, the trial court
stated: “The jury will remember the evidence.” We also note that, after this
instruction, the prosecutor clarified to the jury that his assertions were not evidence.
Further, in the trial court’s charge, the jury was instructed: “During your
deliberations in this case, you must not consider, discuss, nor relate any matters not
in evidence before you.       You should not consider nor mention any personal
knowledge or information you may have about any fact or person connected with
this case which is not shown by the evidence.” “Instructions to the jury are generally
considered sufficient to cure improprieties that occur during trial.” Gamboa v. State,
296 S.W.3d 574, 580 (Tex. Crim. App. 2009). We presume that a jury will follow
the trial court’s instructions. Id. Even if the trial court erred, there is nothing to
suggest that the jury did not follow the instructions of the trial court.
      Third, we note that Appellant’s conviction was relatively certain even without
the misconduct. Here, Garang testified that, in the process of attempting to rob
Maduok, Appellant stabbed and killed Maduok. Dr. Roe testified that Maduok’s
spinal cord was transected and that an artery that supplied blood to the brain was
torn away. The evidence showed that the knife belonged to Appellant and that
Appellant was aggressive and combative during his encounter with Maduok.
Dr. Roe also testified that “some force” was needed to cause the damage that
occurred to the various structures in Maduok’s neck and that targeting a person’s
neck was not something a person would do if that person wanted to inflict a non-
life-threatening injury.
      For these reasons, we conclude that any errors associated with the challenged
statements were harmless. We overrule Appellant’s second issue.




                                           10
      In his third issue, Appellant asserts jury-charge error. Specifically, Appellant
appears to argue that the trial court erred because it gave an improper definition and
application paragraph of murder in the jury charge. Appellant asserts that where, as
here, the indictment charges a defendant with intentionally causing the death of a
person, it is fundamental error to authorize conviction on a theory not alleged in the
indictment.
      The indictment in this case charged Appellant with capital murder. A person
commits capital murder when (1) the person commits murder as defined under
Section 19.02(b)(1)—which defines murder as “intentionally or knowingly
caus[ing] the death of an individual”—and (2) “the person intentionally commits the
murder in the course of committing or attempting to commit [among other felonies]
robbery.” TEX. PENAL CODE ANN. §§ 19.02(b)(1); 19.03(a)(2) (West 2019). Along
with the proper definition of murder, as incorporated by the capital-murder statute,
the jury charge included another definition of murder, which related to the lesser
included offense of felony murder. The challenged definition of murder read:
             A person commits the offense of murder if he commits or
      attempts to commit a felony, other than manslaughter, and in the course
      of and in furtherance of the commission or attempt, or in immediate
      flight from the commission or attempt, he commits or attempts to
      commit an act clearly dangerous to human life that causes the death of
      an individual.
Based on this definition, which defines felony murder, Appellant complains that “the
jury was permitted to consider that [Appellant] could have committed capital murder
by committing an act clearly dangerous to human life in the course of committing a
felony, rather than only by intentionally or knowingly causing the death of Mad[uo]k
during the commission of a specific felony.” According to Appellant, because this
was fundamental error, “this Court has no choice but to reverse and remand for a
new trial.” We disagree.

                                         11
      “[A]ll alleged jury-charge error must be considered on appellate review
regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645, 649
(Tex. Crim. App. 2012). In our review of a jury charge, we must first determine
whether error occurred. Id. If no error occurred, our analysis ends. Id. But if error
occurred, whether it was preserved then determines the degree of harm required for
reversal. Id.; see Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009)
(citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)).
      We conclude that the trial court did not err when it included the challenged
definition and application paragraph of felony murder in the jury charge. First, we
note that it was proper to include the definition of felony murder in the jury charge
because felony murder is a lesser included offense of capital murder and because
felony murder was included in the jury charge as a lesser included offense. See
Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999) (“The elements of
felony murder [under Section 19.02(b)(3)] are included within the proof necessary
for   capital   murder   committed     in        the   course   of   robbery   [that   is,
Section 19.03(a)(2)].”); see also Gomez v. State, 499 S.W.3d 558, 562 (Tex. App.—
Houston [1st Dist.] 2016, pet. ref’d) (“This Court has long held that murder is a
lesser-included offense of capital murder.” (quoting Smith v. State, 297 S.W.3d 260,
275 (Tex. Crim. App. 2009))).
      Additionally, we note that the jury was not authorized to convict Appellant on
a theory not alleged in the indictment. Rather, the jury convicted Appellant on the
very theory alleged in the indictment. The jury found Appellant “guilty of the
offense of Capital Murder, as charged in the Indictment.” To convict Appellant of
capital murder, the application paragraph in the jury charge, which tracked the
language of the indictment, required the jury to find, beyond a reasonable doubt, that
Appellant “intentionally cause[d] the death of” Maduok by stabbing him with a


                                            12
deadly weapon (a knife) “in the course of committing or attempting to commit the
offense of robbery” of Maduok or Garang. As such, there was no danger that the
jury was permitted to convict Appellant of capital murder without finding that he
intentionally caused Maduok’s death. Therefore, we cannot conclude that the jury
charge in this case was erroneous. We overrule Appellant’s third issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           KEITH STRETCHER
                                                           JUSTICE


September 12, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

                                                     13
