                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00080-CR



            TRAVON WALKER, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 5th District Court
                 Bowie County, Texas
            Trial Court No. 18-F-0897-005




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Stevens
                                       MEMORANDUM OPINION
           After a Bowie County jury found Travon Walker guilty of felony murder, he was sentenced

to fifty-five years in prison and assessed a $10,000.00 fine. On appeal, Walker contends (1) that

the evidence was insufficient to support the jury’s guilty verdict and (2) that the trial court

reversibly erred when it admitted three autopsy photographs of the victim.

           Because we find (1) that there was sufficient evidence to support the verdict and (2) that

the trial court did not err when it admitted the complained-of photographs, we affirm the trial

court’s judgment.

I.         Background

           In January 2018, Chris Shavers and Marquan Neal were arguing with one another for much

of the day over family issues. At some point, Neal and Shavers decided that they would physically

fight each other. After determining where the fight would take place, Shavers and his cousin,

Leslie Henderson, drove to the designated location and parked their vehicle. Shavers exited the

vehicle and walked across a nearby field, where he joined his friends, Steve Jones and Walker.

While Shavers brought his gun, 1 he testified that he did not intend to use the weapon during the

fight and, therefore, gave it to Walker. 2

           When Shavers arrived, the fight between Shavers and Neal ensued. After “wrestling” and

“tumbling over and over,” someone broke up the fight. Shavers stated that he then heard a gunshot

and started to run away from the scene, but that he did not see who fired the gun. After hearing


1
    Shavers testified that the gun was a 9mm Taurus that he bought from a pawn shop for around $220.00.
2
 Shavers said that he usually carried a gun. Even so, Shavers testified that, on the day of the incident, he did not shoot
the gun, fire it up in the air, or shoot it toward anybody.
                                                            2
the initial shot, Shavers said he heard more firing, but he still did not see who was firing the gun.

According to Shavers, he did not retrieve his gun from Walker immediately following the incident.

         When he later returned to the scene, Shavers saw an ambulance, so he went to a local

hospital “[t]o see what was going on.” There were several other individuals at the hospital that

Shavers knew, including Walker, Henderson, and Steve Jones. At that time, Shavers learned that

Walker’s wife, Kaitlin Lee, had been shot. Shavers said that, other than the information Walker

had given him, he knew no details about the shooting. He did not ask Walker if he was the person

who shot Lee, and Walker did not volunteer the information. After leaving the hospital, Shavers’s

sister Brandi took him to Walker’s girlfriend’s apartment so he could retrieve his gun.

         Latrilla Brown was also present during the incident. Latrilla stated that she saw Shavers

and Neal fighting and that she saw Shavers give Walker the gun. Latrilla also saw Walker fire the

gun once into the air. After Latrilla heard the initial shot, and while running away from the area,

she heard additional shots. According to Latrilla, she heard several shots fired about two to three

minutes after she saw Walker fire the gun into the air, but she did not know who fired the additional

shots.

         Neal’s cousin, Calvin Davis, was also among the individuals present at the scene. Despite

first telling the officers that he did not see anything that evening, Davis later told them that he did

see Walker fire the gun once into the air. At trial, Davis testified that he saw Walker fire the gun

into the air but did not see who fired the later shots. When Davis was asked whether he believed

Walker shot in the air to stop the fight between Neal and Shavers, Davis said, “I guess so.”



                                                  3
        Flornica Brown, who lived in the area, was also present during the incident. Flornica stated

that she saw Shavers and Neal fighting in her neighbor’s driveway but that someone “broke the

fight up.” Flornica stated that she was not sure who gave the gun to Walker but that “[Walker]

had the gun.” Flornica also testified that she “just heard one shot” and that “[t]hat’s when

everybody, like, kind of like scattered off or whatever.” She later clarified that she heard Walker

say “get the [f---] back” and that then she saw him fire the gun up into the air. Flornica also

explained that, although she did hear the subsequent shots fired, she did not know if it was Walker

who had fired them.

        Neal conceded that he fought with Shavers. 3 He explained that he arrived at the designated

fight location before Shavers’s arrival. When Shavers arrived, some of Shavers’s friends were

with him, including “Bug,” Jones, and Walker. Neal testified that, when Shavers first walked up

to him, he “pulled a gun out” but that he then gave it to Walker. According to Neal, Walker “pulled

[the gun] out and . . . was like, ‘Don’t hit my homeboy [Shavers] like no more.’” Walker then

pointed the gun directly at him. Neal responded by raising his hands, positioning himself against

a mailbox, and telling “[Walker] to shoot, you know. I said, like ‘[s]hoot me.’” Neal said Walker

pointed the gun toward the ground at that point, at which time Neal and his friends began walking

away. Neal then said, “As we were walking off, my homeboy like -- the white boy I’m with, he

was like, ‘He finally shot[.]’ It was one shot at first, it went like, pow.” As to the remaining shots,

Neal stated, “I looked back. I looked back. After I looked back, then I knew Walker was shooting



3
 Neal and Shavers each have a child with the same woman, Saquiecia Bullock. According to Neal, they had gotten
into the fight that day over the children and their financial support.
                                                      4
pow, pow, pow, pow.” Neal stated that he observed Walker firing the last shots and that he fired

the gun toward him “like five or six, maybe four, five or six” times. When asked if Walker was

shooting toward the north or the south, Neal explained that Walker had been shooting the gun

toward the north.

         David Bryan Jackson, who lived in the neighborhood where the incident took place,

testified that, when he was about two blocks away from his home, he “heard a volley of shots.

Sounded like someone had expended about a magazine.” Jackson continued his short drive home

and upon arrival “did just a kind of a walk around the house to -- just to see what was going on.”

While looking around, he found Lee’s body, “flat on her back” on the drainage easement beside

his house, which continued to run down an alley behind his home. Jackson stated that Lee had a

wound to her right temple and that “[t]here was some tissue on the ground. Her pupils were fixed

and dilated, and she was having a seizure.” Jackson immediately called 9-1-1 for an ambulance

and waited for it to arrive. A police officer arrived before the ambulance, and Jackson provided

him with his recollection of the events. 4

         Mark Sullivan, who was assigned to the Texarkana, Texas Police Department Criminal

Investigation Division, Crime Scene Unit, and who was admitted as an expert in crime scene

investigation, testified that he was dispatched to the scene after being advised that a female victim

had suffered a gunshot wound to her head. Sullivan photographed the overall scene. Trying to

determine where the gunshots had originated, Sullivan was advised that there were no shell casings


4
 Jonathon Price, an officer with the Texarkana, Texas Police Department, testified that he spoke to several people in
the area who said they heard shots fired in the neighborhood. One of those individuals stated that he heard eight shots
fired.
                                                          5
in the area where Lee had been located. Sullivan said he was then dispatched to the hospital to

take photographs of Lee’s injuries. After doing so, he returned to the scene. When he arrived back

at the crime scene, Sullivan was informed that officers had located a few shell casings. Among

other observations, Sullivan “observed three cartridge cases on the driveway in front of apartment

108.” He also determined that Lee’s body was 188 yards away from the shell casings.

        At trial, Sullivan was shown one of the autopsy photographs of the wound to Lee’s head.

Sullivan was then asked, “Is there anything about this photograph that you can tell about how this

bullet entered the victim, as far as the path?” Sullivan responded, “That path there looks more of

a trajectory that is straight-on.” He continued, “You have the abrasion mark that’s caused by the

impact of the bullet around the skin, but the circular of that bullet defect indicates that that bullet

was not tumbling or anything. It was a straight trajectory whenever it struck the victim’s head.”

Sullivan opined that, if someone had shot up into the air, you would not “expect to see something

such as this.” In his opinion, from observing Lee’s wound, the bullet that killed her was on a direct

path.

        The State also called Nathan Tunnell, a firearms examiner at the Texas Department of

Public Safety Crime Laboratory in Tyler, Texas. Tunnell examined and test fired the Taurus 9mm

handgun that Walker used in the shooting. Additionally, Tunnell examined bullets collected from

the crime scene and compared them with bullets he test fired from the Taurus handgun. Based on

his analysis, Tunnell opined that the bullets found at the crime scene had been fired from the Taurus

handgun. Finally, Tunnell examined a bullet that the medical examiner had taken from the victim.




                                                  6
Based on Tunnell’s examination, he opined that that bullet had been fired from the Taurus handgun

as well.

       After hearing the testimony, the jury found Walker guilty of felony murder, and the trial

court sentenced him to fifty-five years in prison and a $10,000.00 fine. This appeal followed.

II.    Discussion

       A.      The Evidence Was Sufficient to Support the Jury’s Verdict

       In his first issue, Walker contends that the evidence was legally insufficient to support his

conviction of felony murder. In evaluating legal sufficiency here, we must review all the evidence

in the light most favorable to the verdict to determine whether any rational fact-finder could have

found, beyond a reasonable doubt, that Walker was guilty of felony murder. See Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S.

307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet.

ref’d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).

       We examine legal sufficiency under the direction of the Brooks opinion, while giving

deference to the responsibility of the fact-finder “to fairly resolve conflicts in testimony, to weigh

the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19). Legal

sufficiency of the evidence is measured by the elements of the offense as defined by a

hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

The hypothetically correct jury charge “sets out the law, is authorized by the indictment, does not



                                                  7
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of

liability, and adequately describes the particular offense for which the defendant was tried.” Id.

            A person commits felony murder when he commits or attempts to commit an act that is

clearly dangerous to human life and that causes the death of an individual, while in the course of

committing, in furtherance of, or in immediate flight from the commission or attempt to commit a

felony, other than manslaughter. TEX. PENAL CODE ANN. § 19.02(b)(3). Here, the State alleged

that the underlying felony was deadly conduct. 5 It is well established under Texas law that

“[d]eadly conduct can be the underlying felony for felony murder.” See Barfield v. State, 202

S.W.3d 912, 914 n.1 (Tex. App.—Texarkana 2006, pet. ref’d); see also Johnson v. State, 4 S.W.3d

254, 255–58 (Tex. Crim. App. 1999) (felony murder does not require proof of any additional

dangerous act beyond that covered by the underlying felony). A person commits deadly conduct

under Section 22.05 by knowingly discharging a firearm at or in the direction of one or more

individuals. See TEX. PENAL CODE ANN. § 22.05(b)(1).

            Walker concedes that there was “some evidence” that he fired the gun in the air once and

“some evidence” that he fired the gun several more times after firing into the air. Yet, Walker

maintains that Neal’s testimony was “the sole evidence that Walker discharged the handgun in the

direction of Murquan Neal or Chris Shavers.” He states, “[I]t is unclear and is only potentially



5
    The State’s indictment against Walker alleged that, on or about January 31, 2018, he

            did then and there, intentionally or knowingly commit or attempt to commit a felony offense, to wit:
            Deadly Conduct, and while in the course of and in the furtherance of the commission or attempt of
            said offense did then and there commit or attempt to commit an act clearly dangerous to human life,
            namely, knowingly discharge a firearm at or in the direction of an individual and/or individuals,
            namely Murquan Neal and/or Christopher Shavers, that caused the death of Kaitlin Lee.
                                                             8
some evidence that Walker discharged the weapon ‘towards’ Neal.” For this reason, Walker

contends that the State failed to prove the elements of the underlying felony of deadly conduct.

           When there is a question of sufficiency, an appellate court must evaluate all the evidence,

both direct and circumstantial. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). In

doing so, we must keep in mind that, as the sole judge of the weight and credibility of the evidence,

the jury was free to accept or reject any, all, or none of Neal’s testimony relating to his version of

the incident. See Upton v. State, 853 S.W.2d 548, 552 (Tex. Crim. App. 1993). That said, even if

Neal’s testimony were the only evidence showing that Walker shot the gun in his direction, his

eyewitness testimony was sufficient evidence to support the State’s burden of proving that Walker

knowingly discharged the firearm at or in Neal’s direction. Moreover, the additional testimony

from the other witnesses that they saw Walker with the gun and also saw him fire the gun once

was, at least, some support of Neal’s testimony. We, therefore, find that Walker’s contention lacks

merit.

           Next, Walker contends that, because the State failed to show “that the fifth to seventh

bullets (which had been directed toward . . . Neal) struck and killed [Lee,]” it failed to meet its

burden of proof. In other words, Walker claims that the evidence presented by the State could not

support a finding that Walker knowingly discharged a firearm at or in the direction of Neal, causing

Lee’s death. Instead, Walker maintains that the initial bullet he fired into the air, as opposed to

any of the subsequent bullets he aimed toward Neal, “could have been” the cause of Lee’s death. 6


6
    Notably, Walker concedes the following:

           The State presented evidence that [Lee] was killed by a bullet from the handgun discharged by
           Travon Walker. Nathan Tunnell, a DPS crime lab expert on firearms testified at trial. He tested the
                                                           9
         Contrary to Walker’s contention, there was sufficient proof that one of the subsequent

gunshots fired by Walker toward Neal, rather than the first shot fired into the air, caused Lee’s

death. Sullivan, an expert in crime scene investigation, testified that, after looking at Lee’s wound

in the autopsy photographs, he found that Lee was not shot by a bullet that had traveled up into the

air. Instead, Sullivan stated that the bullet took a direct path. Because of Sullivan’s testimony, the

jury was well within its discretion to find that Lee was shot and killed after Walker fired several

shots in Neal’s direction and not, as Walker contends, when he shot up in the air.

         We, therefore, overrule Walker’s first point of error.

B.       The Trial Court Did Not Err When It Admitted Autopsy Photographs

         Next, Walker contends that the trial court abused its discretion when it admitted three

autopsy photographs of Lee (State’s Exhibits 26, 27, and 28) because their prejudicial value

outweighed their probative value. We disagree.

         First, Walker complains of the admission of State’s Exhibit 26, a frontal photograph of

Lee’s face. “[F]or an issue to be preserved on appeal, there must be a timely objection that

specifically states the legal basis for the objection.” Rezac v. State, 782 S.W.2d 869, 870 (Tex.

Crim. App. 1990). Despite the exception of the right of trial by jury, a defendant can waive any

trial error, including constitutional error, by failing to either object properly or request the proper

relief. Thompson v. State, 802 S.W.2d 840, 842 (Tex. App.—Houston [14th Dist.] 1990, pet.



         Taurus 9mm handgun. He testified that bullets collected at the scene had been fired from that gun.
         Additionally, the medical examiner had offered State’s Exhibit 29, the bullet taken from [Lee].
         Tunnel opined that the bullet taken from the victim was fired from that handgun.

(Citations omitted).
                                                        10
ref’d); see TEX. CODE CRIM. PROC. ANN. art. 1.14. Here, because Walker failed to make an

objection to State’s Exhibit 26, he has waived any error for our review.

       As to the remaining two exhibits, photographs of Lee’s face visibly showing the wound,

Walker argued at trial that they were “gratuitous photos of the same wound.” The State responded,

“Your Honor, the [S]tate’s position in the second and third photographs in talking with the medical

examiner is one -- is the second photo shows a further out view of the bullet location itself. There

is more detail as it is zoomed in in the third photograph.” The trial court overruled Walker’s

objection to the photographs, finding that they were “not overly gratuitous,” that they were

“limited to two,” and that one showed “more detail of the wound, and one has a -- one is further

out and gives a better location of the wound.”

       On appeal, Walker argues that, under Rule 403 of the Texas Rules of Evidence, the two

photographs were more prejudicial than probative. Even assuming Walker’s objection at trial

constituted a Rule 403 objection, the trial court did not err when it admitted the autopsy

photographs of Lee.

       Rule 403 of the Texas Rules of Evidence provides that evidence, although relevant, may

be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury or by considerations of undue delay or needless

presentation of cumulative evidence. TEX. R. EVID. 403. Even so, “Rule 403 favors the admission

of relevant evidence and carries a presumption that relevant evidence will be more probative than

prejudicial.” Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). We review a trial

court’s decision on a Rule 403 objection under an abuse of discretion standard, and we disturb the

                                                 11
trial court’s ruling only when the ruling falls outside the zone of reasonable disagreement. Jones

v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996).

        In determining a Rule 403 objection, a trial court must “consider the inherent tendency that

[the] evidence may have to encourage resolution of material issues on an inappropriate [emotional]

basis.” Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992) (quoting Fuller v. State,

829 S.W.2d 191, 206 (Tex. Crim. App. 1992)). Next, the trial court must balance that inherent

tendency, if any, against “the host of factors affecting probativeness, including [the] relative

weight of the evidence and the degree to which its proponent might be disadvantaged without it.”

Id. Many factors may be considered in determining whether the danger of unfair prejudice

substantially outweighs the probative value of the photographs, including “the number of exhibits

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

whether they are close-up, whether the body is naked or clothed[, and] . . . the availability of other

means of proof and the circumstances unique to each individual case.” Emery v. State, 881 S.W.2d

702, 710 (Tex. Crim. App. 1994), (quoting Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App.

1991)). In general, photographs are admissible where verbal testimony about the same matters is

admissible. Ramirez v. State, 815 S.W.2d 636, 647 (Tex. Crim. App. 1991).

        Although a person could find the two complained-of photographs to be rather unpleasant,

neither of them were gruesome or particularly offensive, and neither was intended to “horrify or

shock the viewer.” 7 See Ashcraft v. State, 918 S.W.2d 648, 656 (Tex. App.—Waco 1996, pet.



7
 Contrary to Walker’s description of the exhibits as “gruesome photographs of the victim’s corpse,” both were close-
up shots of Lee’s face, showing only what appeared to be a cleaned wound.
                                                        12
ref’d). Walker also concedes that, at trial, “the photographs were discussed briefly with a witness,

offered, and after a discussion, admitted.” Thus, the State did not spend an inordinate amount of

time drawing the jury’s attention to the photographs. Walker also complains that the photographs

were cumulative because they twice pictured Lee’s wound. Yet, if autopsy photographs aid the

jury in understanding an injury and do not unnecessarily emphasize the damage or mutilation

caused by the autopsy, they are admissible at trial. Davis v. State, 313 S.W.3d 317, 331 (Tex.

Crim. App. 2010) (citing Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997)).

       Here, the two photographs, taken at similar angles but different distances, aided the jury in

understanding Lee’s injury. They also helped the jury determine a major issue in the case—

whether the bullet that killed Lee was shot into the air or in a direct line of fire. Moreover, neither

of the photographs emphasized the damage caused by the bullet, and neither reveal any mutilation

caused by an autopsy.

       We, therefore, conclude that the two photographs in question were material and relevant to

the issues raised at trial and that their prejudicial value did not outweigh their probative value.

Under these circumstances, the trial court’s decision to overrule Lee’s objection and admit the

complained-of photographs fell within the zone of reasonable disagreement and, thus, did not

constitute an abuse of discretion. See Jones, 944 S.W.2d at 651.

       As a result, we overrule Walker’s second point of error.




                                                  13
III.   Conclusion

       We affirm the trial court’s judgment.




                                               Scott E. Stevens
                                               Justice

Date Submitted:       December 3, 2019
Date Decided:         December 16, 2019

Do Not Publish




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