                                     NO. 07-11-0196-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL C

                                      JANUARY 14, 2013

                           ______________________________


                          DONALD LEE JAMESON, APPELLANT

                                                V.

                            THE STATE OF TEXAS, APPELLEE


                         _________________________________

                FROM THE 69TH DISTRICT COURT OF MOORE COUNTY;

                      NO. 4327; HONORABLE RON ENNS, JUDGE

                           _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                 MEMORANDUM OPINION


          Appellant, Donald Lee Jameson, was convicted by a jury of murder 1 and

sentenced to life imprisonment. Appellant contests: (1) the sufficiency of the evidence;

(2) the admission of certain photographs; and (3) the absence of findings of fact and

conclusions of law by the trial court on the voluntariness of his written confession. We

affirm.

1
See TEX. PENAL CODE ANN. § 19.02(b)(2) (W EST 2011).
                               SUFFICIENCY OF THE EVIDENCE


       Appellant contends the evidence was insufficient to convict for murder because

he raised self-defense in a statement to law enforcement and presented expert

testimony at trial that he suffered from Post-Traumatic Stress Syndrome. His evidence

indicated he accepted a ride home from Ronald Whitfield outside a bar in Dumas,

Texas, and after Whitfield made a sexual advance, Appellant attempted to leave the car

but Whitfield grabbed him by his shirt. The two struggled, Appellant “reached into [his]

right pocket and got out [his] knife and opened it and I cut him” twice in the throat.

Appellant gave a detailed confession to law enforcement and subsequently testified to

cutting Whitfield at trial. He testified his violent reaction to Whitfield’s improper advance

coupled with grabbing him was the result of his past history of sexual abuse as a child.

In the court’s charge, the jury was instructed on the law applicable to self-defense.


       The only standard that a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense the State is required

to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443

U.S. 307, 33 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Adames v. State, 353 S.W.3d

854, 859 (Tex.Crim.App. 2011); Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.

2010). Under that standard, in assessing the sufficiency of the evidence to support a

criminal conviction, this Court considers all the evidence in the light most favorable to

the verdict and determines whether, based on that evidence and reasonable inferences

to be drawn therefrom, a rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Adames, 353

S.W.3d at 860; Brooks, 323 S.W.3d at 912.           This standard gives full play to the

                                             2
responsibility of the trier of fact to resolve conflicts in testimony, weigh the evidence,

and draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

319.   See Adames, 353 S.W.3d at 860 (citing Hooper v. State, 214 S.W.3d 9, 15

(Tex.Crim.App. 2007)).     "[S]ufficiency of the evidence should be measured by the

elements of the offense as defined by the hypothetically correct jury charge for the

case." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). According to the

indictment in this case, the State was required to prove Appellant, intending to cause

serious bodily injury, committed an act clearly dangerous to human life that caused the

death of Ronald Whitfield. See TEX. PENAL CODE ANN. § 19.02(b)(2) (W EST 2011).


       In his statement to law enforcement given the day of the crime and his

subsequent trial testimony, Appellant admitted to being involved in a struggle with

Whitfield in his car. Despite the struggle, Appellant was able to take the knife out of his

pocket, open it, and use it to cut Whitfield’s throat multiple times. Due to the wounds

inflicted on Whitfield, he rapidly lost consciousness and bled to death. Appellant then

fled the scene. Other witnesses testified that, the day of the crime, Appellant showed

no bruising or injuries to his upper body indicating a struggle had occurred earlier that

day. Furthermore, a pack of cigarettes in the center of the front seat of Whitfield’s car

was undisturbed and several of Whitfield’s friends testified he never exhibited any

homosexual or bisexual tendencies.


       Having considered all the evidence in the light most favorable to the verdict, we

find that, based on that evidence and reasonable inferences to be drawn therefrom, a

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.     In so doing, as to Appellant’s claim of self-defense, we give

                                            3
deference to “the responsibility of the trier of fact to fairly resolve conflicts in testimony,

to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Jackson, 443 U.S. at 318-19. Appellant’s first issue is overruled.


                                         PHOTOGRAPHS


         Appellant contends the trial court abused its discretion by admitting four

photographs described by Appellant as “gruesome” and “inflammatory.”                           One

photograph showed Whitfield in his car at the crime scene and the remaining

photographs were taken during his autopsy. Appellant maintains that the prejudicial

impact of the photographs substantially outweighed their probative value. See TEX. R.

EVID. 403. 2


         The admissibility of photographic evidence lies within the sound discretion of the

trial court. Shuffield v. State, 189 S.W.3d 782, 786 (Tex.Crim.App. 2006), cert. denied,

549 U.S. 1056, 127 S.Ct. 664, 166 L.Ed.2d 521 (2007). Its decision to admit or exclude

evidence will not be overturned on appeal absent a showing that the trial court abused

its discretion. Id. at 787. In that regard, we will not disturb a trial court’s ruling admitting

or excluding evidence so long as the trial court’s decision falls within the “zone of

reasonable disagreement.” See Jones v. State, 944 S.W.2d 642, 651 (Tex.Crim.App.

1996).


         The Texas Rules of Evidence favor the admission of all relevant evidence at trial,

though these evidentiary rules do provide exceptions that would exclude otherwise


2
 Throughout the remainder of this opinion, we will cite the provisions of the Texas Rule of Evidence
simply as “Rule ___.”

                                                 4
relevant and admissible evidence. See Rule 401. One exception to this general rule is

found in Rule 403: “Although relevant, evidence may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, or needless presentation of

cumulative evidence.” Rule 403. When called on to analyze evidence in light of a Rule

403 objection, the trial court must balance the following considerations: (1) the inherent

probative force of the proffered evidence along with (2) the proponent’s need for that

evidence against (3) any tendency of the evidence to suggest a decision on an improper

basis, (4) any tendency of the evidence to confuse or distract the jury from the main

issues, (5) any tendency of the evidence to be given undue weight by a jury that has not

been equipped to evaluate the probative force of the evidence, and (6) the likelihood

that presentation of the evidence will consume an inordinate amount of time or merely

repeat evidence already admitted.     Gigliobianco v. State, 210 S.W.3d 637, 641–42

(Tex.Crim.App. 2006). We also consider the number of photographs, the size, whether

they are in color or black and white, whether they are gruesome, whether any bodies

are clothed or naked, and whether the body has been altered since the crime in some

way that might enhance the gruesomeness of the photograph to the appellant’s

detriment. See Shuffield, 189 S.W.3d at 787. In sum, “[i]f there are elements of a

photograph that are genuinely helpful to the jury in making its decision, the photograph

is inadmissible only if the emotional and prejudicial aspects substantially outweigh the

helpful aspects.” Erazo v. State, 144 S.W.3d 487, 491-92 (Tex.Crim.App. 2004).


      Appellant objects to four color photographs admitted as State’s Exhibits 4, 44,

45, and 50.   The photographs were admitted into evidence in conjunction with the


                                            5
testimony of Officer Tommy Gonzales who documented the crime scene and Elizabeth

Miller, M.D., who performed Whitfield’s autopsy.         The crime scene photograph

documented the crime scene, showed the position of Whitfield’s body in the car with his

throat cut and blood running down the front of his shirt. The autopsy photographs were

whittled down by the trial court to three photographs illustrating Whitfield’s gaping

wounds on his face and neck. The photographs illustrated the cause of Whitfield’s

death, depth of his wounds, injury to his airway, and the severity of the wounds to his

throat illustrating the force necessary to cause the wounds. The photographs were

unquestionably gruesome.


      Under the first Gigliobianco factor, we find the photographs had probative value

because they were accurate depictions of both the crime scene and Whitfield’s body

that would assist a jury to visualize the crime scene as well as the extent of Whitfield’s

injuries caused by Appellant’s criminal act. Paredes v. State, 129 S.W.3d 530, 540

(Tex.Crim.App. 2004). See also Legate v. State, 2 S.W.3d 797, 807 (Tex.App.—San

Antonio 2001, pet. ref’d).     These photographs are also probative because they

corroborated the testimony of trial witnesses; see Ledbetter v. State, 208 S.W.3d 723,

734 (Tex.App.—Texarkana 2006, no pet.); Denoso v. State, 156 S.W.3d 166, 178

(Tex.App.—Corpus Christi 2005, pet. ref’d), and their probative value is not diminished

simply because they corroborate other uncontested testimony. See Chamberlain v.

State, 998 S.W.2d 230, 237 (Tex.Crim.App. 1990) (rejecting the premise that visual

testimony accompanying oral testimony is cumulative of that testimony).         Although

disagreeable to look at, they depict nothing more than the reality of the brutal crime

committed. Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App. 1995); Shavers v.


                                            6
State, 881 S.W.2d 67, 77 (Tex.App.—Dallas 1994, no pet.). Accordingly, the first factor

weighs in favor of admissibility.


       In analyzing the second factor, the State’s need for the evidence, we ask, “Does

the proponent have other available evidence to establish the fact of consequence the

photograph is relevant to show?” Erazo, 144 S.W.3d at 495. And, if so, we then ask,

“How strong is the other evidence, and is the fact of consequence related to an issue

that is in dispute?” Id. at 495-96. The strength of the other evidence available to

establish what occurred in Whitfield’s car was not as strong without the photographs. In

fact, the only account of what occurred between the two men once Appellant entered

Whitfield’s car is Appellant’s account. Despite his statement to law enforcement the day

of the crime, Appellant testified at trial that, once he saw blood, he couldn’t remember

what had occurred. That leaves us with the only other evidence available to the jury

from which to determine what occurred –the crime scene and autopsy photographs.

How Whitfield died was a fact of consequence as was his manner of death.

Accordingly, we find the second factor weighs in favor of admissibility.


       In considering the third, fourth and fifth factors, we look at the photographs’

potential to impress the jury in some irrational, yet indelible way. See id. 491-92. “If a

photograph is competent, material and relevant to the issue on trial, it is not rendered

inadmissible merely because it is gruesome or might tend to arouse the passions of the

jury, unless it is offered solely to inflame the minds of the jury.” Id. (quoting Martin v.

State, 475 S.W.2d 265, 267 (Tex.Crim.App. 1972)). Appellant does not claim that the

photographs are inaccurate or improperly enhanced.               Having considered the

photographs in relation to the entire record, we cannot conclude the images appealed

                                            7
only to the jury’s emotional side and that the jury’s decision was based on emotion

rather than the relevant evidence introduced at trial. See Erazo, 144 S.W.3d 491-92;

Denoso, 156 S.W.3d at 178-79. These factors also weigh in favor of admissibility.


      The sixth factor, the time needed to develop the evidence, also weighs in favor of

admissibility in this case. Considering the length of the trial, the State took little time

before the jury to lay the foundation for the photographs and introduce them into

evidence. See Horton v. State, 986 S.W.2d 297, 303 (Tex.App.—Waco 1999, no pet.).


      In sum, we conclude the photographs are not “so horrifying or appalling that a

juror of normal sensitivity would necessarily encounter difficulty rationally deciding the

critical issues of this case after viewing them.” Contreras v. State, 73 S.W.3d 314, 321

(Tex.App.—Amarillo 2001, pet. ref’d) (quoting Narvaiz v. State, 840 S.W.2d 415, 429

(Tex.Crim.App. 1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791

(1993)). The photographs depicted no more than what Appellant caused and what

verbal testimony properly described.       Saldano v. State, 232 S.W.3d 77, 101-02

(Tex.Crim.App. 2007).     The trial court did not abuse its discretion in admitting the

photographs. See Allridge v. State, 850 S.W.2d 471, 494 (Tex.Crim.App. 1991) (en

banc). Appellant’s second issue is overruled.


                      FINDINGS OF FACT AND CONCLUSIONS OF LAW


      Appellant asserts that we must abate this appeal and return the case so that the

trial court can make findings of fact and conclusions of law on the voluntariness of his

written confession.     We note that Appellant did not raise voluntariness at the

suppression hearing or object when his confession was offered at trial. In fact, no one

                                            8
disputes the voluntariness of his written confession. That said, the trial court did not

enter written findings of fact and conclusions of law regarding the voluntariness of

Appellant’s statements.


      It has been held that the requirements of section 6 of article 38.22 of the Code of

Criminal Procedure are mandatory; see TEX. CODE CRIM. PROC. ANN.          ART.   38.22, § 6

(W EST 2005), and a court must file findings as to the voluntariness of a statement

regardless of whether the defendant objects. See Green v. State, 906 S.W.2d 937, 939

(Tex.Crim.App. 1995); Bonham v. State, 644 S.W.2d 5, 8 (Tex.Crim.App. 1983).

However, article 38.22, section 5 of the Code of Criminal Procedure states, “Nothing in

this article precludes the admission of . . . a statement that does not stem from custodial

interrogation . . . .” TEX. CODE CRIM. PROC. ANN. ART. 38.22, § 5 (W EST 2005) (emphasis

added).   Thus, it has also been held that findings of fact and conclusions are not

required when the statement is not the result of custodial interrogation. Chavez v.

State, 6 S.W.3d 56, 64 (Tex.App.—San Antonio 1999, pet. ref’d); Garza v. State, 915

S.W.2d 204, 211 (Tex.App.—Corpus Christi 1996, pet. ref’d); White v. State, 874

S.W.2d 229, 236 (Tex.App.—Houston [14th Dist.] 1994, pet. dism’d); Inman v. State,

683 S.W.2d 40, 42 (Tex.App.—Eastland 1984, no pet.). If an investigation is not in an

accusatorial or custodial stage, a person’s Fifth Amendment rights are not yet at issue.

Hernandez v. State, No. 07-00-0374-CR, 2001 Tex. App. LEXIS 3506, at *3-4

(Tex.App.—Amarillo 2001, pet. ref’d) (mem. op., not designated for publication) (citing

Melton v. State, 790 S.W.2d 322, 326 (Tex.Crim.App. 1990)). Therefore, the appeal

must only be abated if we determine that Appellant was in custody at the time of his

statement. Id.


                                            9
       Having reviewed the entire transcript of the suppression hearing, we find there

was no evidence Appellant’s written statement was involuntary because he was not in

custody at the time. The evidence indicates he agreed to go to the police station,

without handcuffs, riding in the front passenger seat of an unmarked police car. He had

not been identified as a suspect but as someone who may have seen Whitfield outside

the bar. At various times throughout the interview he was reminded he could terminate

the interview at any time, he was not under arrest and he was free to leave the station.

He also received a written statement of his Miranda rights that he initialed and agreed to

answer the officer’s questions. There is no evidence he was coerced or threatened.

From start to finish, the entire process lasted approximately nine minutes.


       Only in instances when a statement stems from custodial interrogation must the

State demonstrate that the defendant knowingly and intelligently waived his privilege

against self-crimination. Melton, 790 S.W.2d at 326. As Appellant’s statement did not

stem from custodial interrogation, voluntariness is not an issue, and we need not abate

the appeal for the trial court to make written findings. Id.; White, 874 S.W.2d at 326.

Accordingly, we find the trial court did not err in failing to make and file findings of fact

and conclusions of law. Appellant’s third issue is overruled.


                                        Conclusion


       The trial court’s judgment is affirmed.



                                                  Patrick A. Pirtle
                                                      Justice

Do not publish.

                                             10
