





98211CV.White,Herman.fgm.ab.dism















IN THE
TENTH COURT OF APPEALS
 

No. 10-98-354-CV

     BLUE CROSS AND BLUE SHIELD
     OF TEXAS, INC.,
                                                                                              Appellant
     v.

     BROCK A. MORRIS, M.D., AND
     SEAN D. McCARTHY, M.D., INDIVIDUALLY
     AND ON BEHALF OF THE PLAINTIFF CLASS,
                                                                                              Appellees
 

From the 170th District Court
McLennan County, Texas
Trial Court # 98-1946-4
                                                                                                               

MEMORANDUM OPINION 
                                                                                                               

      Blue Cross and Blue Shield of Texas, Inc. brought this interlocutory appeal from the trial
court’s order certifying Appellees’ case as a class action.  See Tex. Civ. Prac. & Rem. Code
Ann. § 51.014(a)(3) (Vernon Supp. 1999).  The parties have filed a joint motion asking that we
dismiss the appeal because they have settled the case.  We will grant the motion.
      In relevant portion, Rule 42.1(a) of the Texas Rules of Appellate Procedure provides:
(a)  The appellate court may dispose of an appeal as follows:
(2) in accordance with a motion of appellant to dismiss the appeal or affirm the
appealed judgment or order; but no other party may be prevented from seeking
any relief to which it would otherwise be entitled.  
Tex. R. App. P. 42.1(a)(2).
      The parties state that they have settled their controversy.  Accordingly, we grant their joint
motion and dismiss this cause with costs to be taxed against the party incurring same.
                                                                               PER CURIAM

Before Chief Justice Davis,
      Justice Vance, and
      Justice Gray
Dismissed
Opinion delivered and filed June 16, 1999
Do not publish

span style="font-weight: bold">O P I N I O N
                                                                                                    

      A jury found Appellant James Andrew Yates guilty of the offense of murder. See Tex. Penal
Code Ann. § 19.02(b) (Vernon 1994).  The trial court assessed Yates' punishment at sixty years'
confinement in the Institutional Division of the Texas Department of Criminal Justice.
      In this appeal, Yates raises six points of error alleging that the trial court erred by: (1)
overruling a motion to suppress his videotaped confession; (2) refusing to allow him to inspect the
sheriff department's file which was reviewed by the sheriff prior to his pretrial testimony; (3)
refusing to admit this file into evidence as a business record; (4) not ordering production of certain
exculpatory evidence before trial; (5) admitting evidence of extraneous offenses; and (6) admitting
a videotape depicting the recovery of the victim's body.  We will affirm the judgment.
THE CONFESSION
      In his first point, Yates contends that the trial court erroneously overruled a motion to
suppress his videotaped confession.  Specifically, he complains that the confession was obtained
in violation of article 15.17(a) of the Code of Criminal Procedure.  Tex. Code Crim. Proc. Ann.
art. 15.17(a) (Vernon Supp. 1997).
      The record reflects that Yates and his wife, Leslie, came to the Hill County Sheriff's
Department at the request of Sheriff's Lieutenant Coy West about 11:00 o'clock, a.m., on
November 9, 1994 to assist West with a missing-person investigation.  West was trying to locate
Wendel Penney, whose mother had reported him missing on November 3.  Yates talked with
West, while Leslie talked with Sheriff Brent Button at the same time.  West joined Leslie's
interview in progress.  After Button and West noted inconsistencies in Yates' and Leslie's versions
of what happened, Leslie admitted that they had contrived the story which they each gave initially. 
She then informed the officers that she and Yates had abandoned Penney's pickup at a park in Bell
County.
      After considering this information, the officers determined that Yates was a suspect.  At about
1:05 o'clock, p.m., Lieutenant William Kelley, Jr. read Yates his statutory warnings.  See Tex.
Code Crim. Proc. Ann. art. 38.22, § 2(a) (Vernon 1979).  Yates informed Kelley that he wanted
to speak with a lawyer, and Kelley terminated the interview.  Yates was then arrested on a warrant
issued because a motion to revoke his community supervision had been filed.
      Three hours later, Yates asked to speak to the officers again.  When the officers met with
Yates, they recorded the interview on videotape.  At the beginning of the tape, Button read Yates
each of the warnings required by article 38.22.  The warnings were also typed on a written waiver
form which Yates signed on camera.  During this interview, Yates admitted that he shot Penney
twice with a shotgun.  He identified the location where the shooting occurred and described the
circumstances surrounding the shooting.
      During the next several days, the officers continued their murder investigation.  They
recovered Penney's body and various personal possessions of his which Yates had disposed of in
different locations.  They obtained an arrest warrant for the murder and served Yates with the
warrant on November 14.
      Article 15.17(a) requires an officer who has arrested a person on the basis of a warrant to take
the accused before a magistrate "without unnecessary delay."  Tex. Code Crim. Proc. Ann. art.
15.17(a).  The magistrate is required to advise the suspect of the charge against him and of his
Miranda rights.  Id.  Unless the accused demonstrates a causal connection between a failure to
comply with article 15.17(a) and his decision to confess, the confession is valid.  Boyd v. State,
811 S.W.2d 105, 124 (Tex. Crim. App. 1991).  Even an unreasonable delay will not invalidate
an otherwise valid confession if the accused was properly informed of his Miranda rights.  Cantu
v. State, 842 S.W.2d 667, 680 (Tex. Crim. App. 1992).
      Article 42.12, section 21(b) describes the procedure to be followed when arresting a person
who has violated any condition of community supervision.  Tex. Code Crim. Proc. Ann. art.
42.12, § 21(b) (Vernon Supp. 1997).  A person charged with violating community supervision
should be confined until released on bail or until a hearing on the motion to revoke the community
supervision is held.  Id.  Article 42.12, section 21(b) makes no provision for an appearance before
a magistrate for the purposes set forth in article 15.17(a).
      Community supervision revocation hearings are not criminal trials.  Bowen v. State, 649
S.W.2d 384, 386 (Tex. App.—Fort Worth 1983, pet. ref'd).  Such hearings are administrative in
nature and do not result in a conviction.  Id.  Rather, the hearing results in "a finding upon which
the court may exercise its discretion by revoking or continuing [community supervision]."  Id. 
Texas courts have consistently held that the procedures normally attendant to the arrest of an
accused person and the preliminary proceedings which follow do not apply in the same manner
to a person charged with a community supervision violation.  See, e.g., Whisenant v. State, 557
S.W.2d 102, 105 (Tex. Crim. App. 1977) (person accused of community supervision violation
not entitled to examining trial); Ex parte Ainsworth, 532 S.W.2d 640, 640-41 (Tex. Crim. App.
1976) (person accused of community supervision violation has no constitutional right to pre-hearing bail); McDaniel v. State, 158 Tex. Crim. 301, 302, 254 S.W.2d 785, 785 (1953)
(community supervision law does not require that notice of violations be given at least 2 days
before hearing as was required for service of indictments at that time).
      Article 15.17(a) does not apply to Yates' arrest for the alleged violation of his community
supervision.  Article 42.12, section 21(b) governs that arrest.  His electronically recorded
confession was obtained in accordance with article 38.22, section 3. Tex. Code Crim. Proc.
Ann. art. 38.22, § 3 (Vernon Supp. 1997).  For these reasons, we overrule his first point of error.
THE SHERIFF DEPARTMENT'S FILE
      Yates' second and third points involve the file assembled by the Hill County Sheriff's
Department during its investigation of the case.  In his second point, Yates claims the court erred
in denying him the opportunity to inspect the file after Button used it to refresh his memory prior
to testifying at a pretrial hearing.  His third point complains about the court's refusal to admit the
file as a business record.
      At the hearing on Yates' motion to suppress, Button testified that he had reviewed the case
file in preparation for the hearing.  Yates then requested that he be allowed to review the file under
Rule 611 of the Rules of Criminal Evidence.
 See Tex. R. Crim. Evid.  611.  Upon further
inquiry by the court, Button testified that he had "browsed" the entire file to refresh his
recollection of the pertinent date and times.
      The trial court allowed the State a brief recess during which the prosecutor and Button
examined the file to determine what Button had "actually" reviewed.  After this, the State provided
Yates with a single sheet of paper containing photocopies of seven brief excerpts from the file. 
These excerpts reflect various times on November 3 apparently determined by the State to be
pertinent to the interviews of Yates and Leslie.  The excerpts read as follows: 
SUPPLEMENT REPORT (19897.1)
 
Case Number: H94003 by Officer 523 (VOGT, PAUL) 11/06/94 11:50 am

      ON 11/03/94 AT APPROXIMATELY 11:50 A.M.


      At approx. 12:40 p.m. Lt. West joined the interview
 
At approx. 1:00 p.m. Lt. West requested Capt. Vicars of the Hill County Sheriff's
Department attempt to locate White Flint

      At approx. 1:03 p.m. Lt. West and Lt. Kelley discussed both
 
At approx. 4:00 p.m. Lt. West was advised that Jimmy Yates was requesting to talk to
officers because he wanted to give a statement
 
At approx. 1:15 p.m. Lt. West began obtaining a written statement from Leslie Yates
 
At approx. 4:30 p.m. Yates was transferred (sic) Facility to the Sheriff's Office

The court allowed Button to testify further that these matters were the only things he truly used
when he reviewed the file in preparation for the hearing.  On cross-examination, Yates laid the
predicate to offer the file as a business record.  See Tex. R. Crim. Evid. 803(6).
      Instead of ruling on this proffer, the court directed Button to produce the documents he
reviewed in preparation for his testimony for purposes of a Rule 611 in-camera hearing.  The court
then ordered that these items be provided to Yates and that the remainder of the file be placed in
the record for appellate review.  The court refused to rule on Yates' business record proffer but
noted his objection to this failure to rule.
      Rule 611 provides that an opposing party is entitled to production of writings used to refresh
a witness' memory. Tex. R. Crim. Evid. 611.  If the party sponsoring the witness claims "that
the writing contains matters not related to the subject matter of the testimony the court shall
examine the writing in camera, excise any portion not so related, and order delivery of the
remainder to the party entitled thereto."  Id.  In-camera review of the entire writing at issue is
mandatory under Rule 611.  See Marsh v. State, 749 S.W.2d 646, 648-49 Tex. App.—Amarillo
1988, pet. ref'd).
      Button clearly stated that he had scanned the whole file in preparation for the hearing.  The
trial court erred because it refused to personally review the entire file in camera.  We must
determine whether this error contributed to Yates' conviction or punishment.  Tex. R. App. P.
81(b)(2).
      In assessing harm, we review the evidentiary value of the file under Rule 611. Robertson v.
State, 871 S.W.2d 701, 709 (Tex. Crim. App. 1993).  Documents admitted under Rule 611 are
admitted for impeachment purposes rather than as substantive evidence.  Id.  Thus, we review
them for impeachment value.
      We have reviewed the entire file.  We find nothing in it which contradicts Button's testimony
at the pretrial hearing.  Instead, the file supports Button's testimony.  Because the file had no
impeachment value, we find beyond a reasonable doubt that its exclusion did not contribute to
Yates' conviction or punishment.  The court's failure to examine the entire file was harmless.  We
overrule Yates' second point.
      In Yates' third point, he refers the Court only to the Due Process Clause of the Fourteenth
Amendment to the United States Constitution and article I, section 19 of the Texas Constitution
as authorities.
      Rule 74(f) of the Rules of Appellate Procedure requires counsel to include in their briefs "such
discussion of   .   .   .   the authorities relied upon as may be requisite to maintain the point at
issue." Tex. R. App. P. 74(f).  The failure to adequately brief the argument and provide authority
to support a particular point of error waives the complaint.  Lawton v. State, 913 S.W.2d 542, 558
(Tex. Crim. App. 1995), cert. denied, ___ U.S. ___, 117 S. Ct. 88, ___ L. Ed. 2d ___ (1996);
Menchaca v. State, 901 S.W.2d 640, 649-50 (Tex. App.—El Paso 1995, pet. ref'd).
      The jurisprudence surrounding an issue so frequently litigated as due process under the
Fourteenth Amendment or due course of law under the Texas Constitution is vast.  When a party
seeks review of an issue related to either of these provisions, citation of more direct authorities
is required to properly present the matter for appellate review.  See Menchaca, 901 S.W.2d at 650
n.7.
      Because Yates has inadequately briefed his third point of error, we overrule it.
EXCULPATORY EVIDENCE
      Yates avers in his fourth point that the court erred in not ordering the production of an
exculpatory tape recording prior to trial.
      The court granted Yates' pretrial motion for in-camera inspection and production of
exculpatory evidence.  See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L.
Ed. 2d 215 (1963).  The court examined the sheriff department's file pursuant to the motion. 
Three days before trial, the court sent a letter to the parties informing them that a tape recording
in the file which contained a conversation with an unidentified medical examiner was potentially
exculpatory.  The court did not order the State to provide Yates with a copy of the recording.
      In response, Yates filed an additional motion seeking production of the recording.  The court
heard this motion prior to voir dire on the first day of trial and denied the motion.  The next day,
the court modified its decision and allowed Yates to hear the recording.  The tape was identified
as a recording of a conversation between Button, West, and Dr. Sheila Spotswood, the medical
examiner.  Yates claims the recording is exculpatory because West asked Spotswood to re-examine
the exit wounds on the body to confirm the State's theory that Penney was lying on the ground
when Yates shot him in the chest.
      Spotswood testified on the third day of trial.  On cross-examination, she did not recall her
conversation with the officers concerning the exit wounds.  She testified that she did not re-examine the body.  Outside the jury's presence, Yates played the recording for Spotswood to
refresh her memory.  After hearing the tape, Spotswood still did not remember the conversation. 
 Based on the recording, however, she conceded that she must have re-examined the exit wounds.
      At that point Spotswood was excused without objection.  Yates moved for a mistrial because
of the delay in the disclosure of the recording.  The court denied the motion.
      When the prosecution fails to disclose Brady material until after the trial has commenced,
the inquiry is whether the defendant was prejudiced by the tardy disclosure.  If the
defendant received the material in time to put it to effective use at trial, his conviction
should not be reversed simply because it was not disclosed as early as it might have and,
indeed, should have been.
Palmer v. State, 902 S.W.2d 561, 565 (Tex. App.—Houston [1st Dist.] 1995, no pet.) (quoting
United States v. McKinney, 758 F.2d 1036, 1050 (5th Cir. 1985)).
      The disclosure of Brady material at trial gives the accused an opportunity to request a
continuance to review the evidence.  This opportunity "adequately satisfies [the] due process
requirements of Brady."  Payne v. State, 516 S.W.2d 675, 677 (Tex. Crim. App. 1974); accord
Aguirre v. State, 683 S.W.2d 502, 516 (Tex. App.—San Antonio 1984, pet. ref'd).  The failure
to request a continuance waives any Brady violation.  See Zule v. State, 802 S.W.2d 28, 33 (Tex.
App.—Corpus Christi 1990, pet. ref'd).
      Yates never requested a continuance after he learned of the contents of the recording. 
Spotswood, Button, and West all testified after he first heard the recording.  Despite Spotswood
changing her testimony outside the presence of the jury, Yates chose not to question her before
the jury about this.  Neither did he seek to offer the recording in evidence to impeach her
testimony.  Under these circumstances, we cannot say that the delayed disclosure hindered his
ability to effectively use the evidence at trial.  Thus, we overrule his fourth point.
EXTRANEOUS OFFENSES
      Yates' fifth point complains of the court's admission of evidence of two incidents he claims
were extraneous to the murder charge.  Yates objected to the admission of any evidence regarding
his taking, dismantling, and abandoning of Penney's truck or of his later burial of Penney's body
in a barn on the property of Ann Yates, his mother.  The court granted a running objection to this
evidence.
      Betty Penney, the victim's mother, was the State's first witness.  She identified eight
photographs of Penney's truck as it appeared after Yates dismantled and abandoned it.  The State
did not offer these exhibits in evidence at that time, however.  Betty also identified the keys to the
truck, which were admitted over Yates' objection.
      Bruce Ward, a mutual acquaintance of the Yates and Penney, and Leslie both testified that
they saw Yates and Penney together the same day Penney disappeared.  That evening Ward and
Leslie saw Yates driving Penney's truck.  Yates told them Penney was tied to a tree.  According
to Leslie, Yates and she hid Penney's truck on Ann's property that same evening.  Later that
night, they took the truck to a friend, Mac's, home in a community in Coryell County known as
The Grove.
      Leslie testified that Yates painted the pink bumpers of Penney's truck black that same night. 
Yates parked the truck behind a barn at Mac's house.  The next night they returned to the scene
of the shooting and retrieved the body.  Yates buried the body in a barn on Ann's property that
night.
      They returned to Mac's house the next day and stayed there two days.  Leslie testified that
during this stay Yates removed the stereo and other equipment from Penney's truck.  He then
abandoned the truck at White Flint Park in Bell County.  Yates and Leslie dumped the back
windshield from the truck at Mother Neff State Park in Coryell County.  Yates also buried
Penney's wallet, checkbook, and other papers underneath a rock at Mother Neff.  They stored the
stereo equipment in a building on Ann's property.
      In his confession, Yates confirmed that he had abandoned the truck in Bell County.  He also
admitted that he had buried the body in the barn and Penney's wallet beneath a rock at another
location.
      Several officers testified to the recovery of Penney's truck and other personal items from the
parks.  Kelley testified about retrieving Penney's keys from a jeep on Ann's property after Yates
told him the keys were there and signed a consent to search for them.  The officers also testified
about the recovery of Penney's body from the barn.  Texas Ranger Matt Cawthon testified that
he located a crushed Miller Lite beer can beneath the body during the exhumation.

SAME-TRANSACTION EVIDENCE
      The facts and circumstances surrounding the commission of an offense are relevant.  Mayes
v. State, 816 S.W.2d 79, 85 (Tex. Crim. App. 1991).  Evidence of how the offense developed and
progressed is necessary for the jury to have a complete picture of what occurred. Burks v. State,
876 S.W.2d 877, 900 (Tex. Crim. App. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 909, 130
L. Ed. 2d 791 (1995); Mann v. State, 718 S.W.2d 741, 744 (Tex. Crim. App. 1986).  This type
of evidence has been labeled as "same transaction contextual evidence."  Mayes, 816 S.W.2d at
86.
      Rule 404(b) of the Rules of Criminal Evidence prohibits the State from introducing evidence
of extraneous offenses to show the accused's bad character and "propensity" to commit criminal
acts.  Tex. R. Crim. Evid. 404(b).  Same-transaction evidence is admitted as an exception to this
rule because such evidence is inextricably intertwined with the offense charged and as a result,
"proof   .   .   .   of [the charged offense] cannot be given without showing the [uncharged
offense]."  Mayes, 816 S.W.2d at 86 n.4 (quoting Nichols v. State, 97 Tex. Crim. 174, 260 S.W.
1050, 1051 (1924)).
Such evidence imparts to the trier of fact information essential to understanding the
context and circumstances of events which, although legally separate offenses, are
blended or interwoven.   As such, it is admissible, not for the purpose of showing
character conformity, but to illuminate the nature of the crime alleged." 
Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993) (citation omitted).  For this
reason, the State need not establish that such evidence is "relevan[t] apart from character
conformity."  Houston v. State, 832 S.W.2d 180, 183 (Tex. App.—Waco 1992), pet. dism'd
improvidently granted, 846 S.W.2d 848 (Tex. Crim. App. 1993).
      In Camacho, the court described another type of extraneous event which is admissible as
same-transaction evidence.  Circumstances surrounding the commission of the offense which are
probative of the allegations in the indictment are not extraneous offenses.  Camacho, 864 S.W.2d
at 532 (quoting Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991).  Such
circumstances should be distinguished from unconnected extraneous offenses which are governed
by Rule 404(b).  See, e.g., Robinson v. State, 844 S.W.2d 925, (Tex. App.—Houston [1st Dist.]
1992, no pet.) (evidence of assault of 70 year-old man with shovel admissible under Rule 404(b)
to prove intent of accused charged with assaulting 77 year-old man with iron and/or hammer and
to rebut self-defense claim).  The court concluded that circumstances surrounding the commission
of the offense which are probative of the State's allegations are also same-transaction evidence. 
Camacho, 864 S.W.2d at 532.
      The circumstances which the court considered in Camacho were the subsequent murders in
Oklahoma of two victims kidnapped in Dallas.  Camacho was tried for capital murder in Dallas. 
The indictment alleged that he killed Sam Wright while in the course of committing burglary. 
After shooting Wright, Camacho and his accomplices kidnapped Wright's wife and son and took
them to Oklahoma.  Four days later they murdered the wife and son.  Camacho, 864 S.W.2d at
527, 532.  Camacho complained that evidence of the kidnapping and subsequent murders should
have been excluded under Rule 404(b).
      The court found that the kidnapping evidence was same-transaction evidence.  Camacho, 864
S.W.2d at 532.  The court held that "[s]uch evidence imparts to the trier of fact information
essential to understanding the context and circumstances of events which, although legally separate
offenses, are blended or interwoven."  Id. (citing Mayes, 816 S.W.2d at 86).
      The court found the murder evidence to be same-transaction evidence under a different
rationale.  The court determined that the murders were circumstances of the offense which were
probative of Camacho's intent during the burglary.  Camacho, 864 S.W.2d at 532 (citing Ramirez,
815 S.W.2d at 643).  The court concluded that evidence of such "relevant" circumstances is also
same-transaction evidence.  Id.

      Thus, we perceive two distinct bases for the admission of same-transaction evidence.  One
occurs where the evidence of an extraneous event is significantly "blended or interwoven" with
the facts of the charged offense: "a la Mayes."  The other arises when the extraneous event tends
to prove the allegations of the charged offense: "a la Ramirez."

1.  Penney's Truck
      The evidence of the taking, dismantling, and abandoning of Penney's truck and other personal
items falls within the latter of these categories.  This evidence was a circumstance surrounding the
commission of the offense which was probative of Yates' intent and his consciousness of guilt.

See Camacho, 864 S.W.2d at 532; Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994). 
Therefore, this evidence was admissible as same-transaction evidence.
2.  Penney's Burial
      Yates' subsequent burial of Penney's body fits within both categories.  Because it involved
the body of the same victim, the burial evidence is significantly intertwined with the charged
offense.  Santellan, slip op. at 15.  Because the burial is a circumstance surrounding the offense
which provides useful insight into Yates' intent, it is not an extraneous offense.  Id.; Camacho,
864 S.W.2d at 532.  Thus, this evidence was part of the same transaction as the murder for which
Yates was on trial.
      Although a legally distinct offense, Yates' burial of the body was significantly intertwined
with the indicted offense "and was `essential to understanding the context and circumstances' of
the crime charged."  Santellan, slip op. at 15 (quoting Camacho, 864 S.W.2d at 532.  Thus, the
evidence is part of the same transaction as the murder with which Yates is charged.
RULE 403
      Yates also objected to this evidence under Rule 403 of the Rules of Criminal Evidence.  Tex.
R. Crim. Evid. 403.  He contends that by merely overruling his objection, the court failed to
conduct the balancing test required by the rule.  See Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1990) (on rehearing).
      However, Montgomery does not require that the court perform this balancing test in a formal
hearing on the record.  Houston, 832 S.W.2d at 184.  "The Montgomery court merely
recognize[d] that appellate review would be made easier if the trial court would list the reasons
for its decision in the record."  Id.  By overruling the Rule 403 objection, the court necessarily
conducted the balancing test when it considered the objection.  Id.; accord Caballero v. State, 919
S.W.2d 919, 922 (Tex. App.—Houston [14th Dist.] 1996, pet. ref'd); Menchaca, 901 S.W.2d at
648-49; Nolen v. State, 872 S.W.2d 807, 812 (Tex. App.—Fort Worth 1994, pet. ref'd).
      Factors to be considered in this balancing process include:
(1) how compellingly the extraneous offense evidence serves to make a fact of
consequence more or less probable   .   .   .;
(2) the potential the other offense evidence has to impress the jury "in some irrational but
nevertheless indelible way";
(3) the time the proponent will need to develop the evidence, during which the jury will
be distracted from consideration of the indicted offense;
(4) the force of the proponent's need for this evidence to prove a fact of consequence,
i.e., does the proponent have other probative evidence available to him to help establish
this fact, and is this fact related to an issue in dispute.
      Santellan, slip op. at 17 (citing Montgomery, 810 S.W.2d at 389-90).
      While same-transaction evidence does not fall within the ambit of Rule 404(b), the court must
nevertheless test its admissibility under Rule 403 when called upon to do so.  Mann, 718 S.W.2d
at 744.  Rarely will the potential prejudice of such evidence render it inadmissible, however. 
Houston, 832 S.W.2d at 183.
1.  Penney's Truck
      We have concluded that the evidence concerning Penney's truck was relevant to Yates' intent
and consciousness of guilt.  As such, it is presumed admissible under Rule 401, even when a Rule
403 objection is made.  Montgomery, 810 S.W.2d at 390; Tex. R. Crim. Evid. 401, 403.  We
review the court's decision under an abuse of discretion standard and defer to the court's ruling
so long as it lies "within the zone of reasonable disagreement."  Montgomery, 810 S.W.2d at 391.
      Because same-transaction evidence is rarely excluded on account of unfair prejudice and
because we believe the court's determination was "within the zone of reasonable disagreement,"
we hold that the court did not abuse its discretion in admitting the evidence regarding the taking,
dismantling, and abandoning of the truck.  Tex. R. Crim. Evid. 403.
2. Penney's Burial
      We have also concluded that the evidence concerning the burial of Penney's body was relevant
to Yates' intent as well as the manner and means by which he committed the offense.  This
evidence was strong: Yates' confessed to the burial, Leslie testified to the burial, the exhumation
corroborated this aspect of his confession, and the medical evidence corroborated his confession
regarding the manner and means of the offense.
      On the other hand, we may reasonably presume that the jury was repulsed by the manner in
which Yates' disposed of the body.  The State devoted a significant portion of the trial to this
event.  However, this evidence was vital to the State's allegation that Yates intentionally killed
Penney.
  It was even more essential to establishing the manner and means of the commission of
the offense.
  Based on these considerations, we cannot say that the court abused its discretion in
concluding that the danger of unfair prejudice did not substantially outweigh the probative value
of this evidence.  Id.
      For these reasons, we overrule Yates' fifth point of error.
THE EXHUMATION VIDEOTAPE
      By his sixth point, Yates complains of the court's admission of the video recording depicting
the exhumation of Penney's body.  When Yates objected to the videotape, the court reviewed the
tape outside the jury's presence to determine its admissibility.  After viewing the tape, the court
determined that the State could play the tape for the jury, but required that the jury not be allowed
to hear the audio portion of the tape.  Yates contends that the prejudicial nature of the video
substantially outweighs any probative value it may have.  See Tex. R. Crim. Evid. 403.
      Rule 403 governs the admissibility of video evidence alleged to be unduly prejudicial. 
Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995).  Several factors are weighed to
determine whether the probative value of the 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 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), cert. denied, ___ U.S. ___, 115
S. Ct. 1257, 131 L. Ed. 2d 137 (1995) (quoting Long v. State, 823 S.W.2d 259, 272 (Tex. Crim.
App. 1991)).  If a verbal description of an object or scene is admissible, then a photograph of that
object or scene is generally also admissible.  Emery, 881 S.W.2d at 710.         Videotape evidence
is generally not cumulative of still photographs because it presents a three-dimensional
perspective.  Flores v. State, 915 S.W.2d 651, 652 (Tex. App.—Houston [14th Dist.] 1996, pet.
ref'd).  Such evidence aids the jury in visualizing the scene and the witnesses' accounts of what
happened.  Price v. State, 870 S.W.2d 205, 208 (Tex. App.—Fort Worth 1994), aff'd, 887
S.W.2d 949 (Tex. Crim. App. 1994); accord Gordon v. State, 784 S.W.2d 410, 412-13 (Tex.
Crim. App. 1990).
      We have already determined that testimony describing the exhumation was admissible.  The
videotape depicts the following: (1) the officers removing several hay bales; (2) the officers
carefully unearthing the body; (3) that the body was wrapped in a black tarp which the officers
removed; (4) the decomposition of Penney's body which had occurred over the six days after he
was killed; and (5) Penney's body was fully clothed when it was recovered.  The video does not,
however, depict anything not already testified to by the State's witnesses or depicted by still
photographs already in evidence.
      While the videotape is gruesome to some extent, it demonstrates the brutal nature of the
offense committed.  Thus, we overrule Yates' sixth point of error.
      We affirm the judgment.
 
                                                                               REX D. DAVIS
                                                                               Chief Justice


Before Chief Justice Davis
      Justice Cummings and
      Justice Vance
      (Justice Vance concurring)
Affirmed
Opinion delivered and filed March 12, 1997
Publish
