                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo
                                  ________________________

                                       No. 07-11-0156-CR
                                  ________________________

                       ANDRE NATHANIEL HAMILTON, APPELLANT

                                                   V.

                               THE STATE OF TEXAS, APPELLEE



                             On Appeal from the 27TH District Court
                                       Bell County, Texas 1
                     Trial Court No. 63,969, Honorable Joe Carroll, Presiding


                                           April 17, 2013

                                             OPINION
                     Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


        Following a plea of not guilty, Appellant, Andre Nathaniel Hamilton, was

convicted by a jury of capital murder 2 and sentenced to life imprisonment without parole.


1
 Originally appealed to the Third Court of Appeals, this appeal was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. TEX. GOV=T CODE ANN. ' 73.001 (W EST 2005).
We are unaware of any conflict between precedent of the Third Court of Appeals and that of this Court on
any relevant issue. TEX. R. APP. P. 41.3.
2
TEX. PENAL CODE ANN. § 19.03(a)(2) (W EST SUPP. 2012).
By two issues, he maintains (1) the evidence is legally insufficient to support his

conviction when the indictment alleges retaliation against a person other than the victim

of the murder as the aggravating circumstance and (2) the trial court erred in admitting

the State’s computer generated animation. We affirm.


                                         BACKGROUND FACTS


        On Friday, August 22, 2008, Constable Thomas Prado was at the Emerald

Green Apartments searching for Derrick Lewis. 3 The apartment manager, Jamie Lujan,

and a maintenance worker, Mark Jimenez, informed Prado that Lewis could be located

at apartment 214 of the Beverly Arms Apartments, an adjoining complex. Although

Lewis was not at that apartment, Jimenez later pointed out a vehicle driven by

Appellant, in which Lewis might be a passenger.                   Prado waved down the vehicle.

Although Lewis was not in the vehicle, a passenger, Montreal Wright, was arrested on

an outstanding warrant and for carrying a pistol. According to witnesses, Lewis was

extremely upset over Wright’s arrest.


        When Jimenez left work that day, he was at a stop sign when four males made

threatening gestures towards him.             He called Lujan and told him he would not be

coming back to work. Lujan assured him it would be “okay” to return and he did so the

following Monday. After returning to work, Jimenez noticed an individual, later identified

as Lewis, following him around for a few days while he was picking up the grounds.

Because Appellant, Lewis and others were angry with Jimenez for pointing out

3
 Lewis, a juvenile at the time of the offense who was certified to be tried as an adult, was a co-defendant
at Appellant’s trial. His appeal was disposed of this same date in appellate cause number 07-11-0444-
CR.


                                                    2
Appellant’s vehicle, which had led to Wright’s arrest, they conspired to “get” Jimenez.

There was conflicting testimony on whether “getting” Jimenez meant shooting him or

beating him.


       On August 28, 2008, Jimenez arrived at work at 7:50 a.m. and Lujan was already

in the office. They noticed a male, later identified as Anthony Thomas, walk by the

office. Thomas had been previously banned from the apartment complex. Jimenez left

the office to do some work at a nearby complex. Approximately twenty minutes later, he

heard an ambulance. 4 When he returned to the apartment complex, he observed the

ambulance as well as police cars. He was told the manager had been shot and saw

Lujan being carried out on a stretcher. Lujan suffered five gunshot wounds and on

September 1, 2008, he died as a result of multiple gunshots.


       Yolanda Evans, a tenant at the Beverly Arms Apartments, testified that she was

looking out her window on the morning of the shooting when she observed Appellant,

Lewis and Thomas cover their faces with bandanas while standing outside the

apartment manager’s office at the Emerald Green complex. 5               Soon thereafter, she

heard gunshots, followed by three individuals running from the area. Lakeisha Davis, a

tenant at the Beverly Arms, testified she heard a noise and looked out her window and

saw Appellant, Lewis and Thomas running up the stairs of the Beverly Arms complex.




4
Lujan called 911 at 8:28 a.m. to report that he had been shot.
5
 Most witnesses were tenants of the Beverly Arms and from their windows could see the back of the
Emerald Green Apartments. An alley separated the two complexes.


                                                    3
Thomas was carrying a black bag. 6 Another witness testified that she was working on

her car when she heard shots and later saw the suspects run into apartment number

112 where Thomas’s cousin lived. Thomas’s cousin testified that Appellant and Lewis

entered his apartment shortly after hearing gunshots and Thomas showed up not long

thereafter.


       Numerous officers arrived at the scene.             After interviewing witnesses, they

determined the suspects were holed-up in an apartment at the Beverly Arms. After

SWAT arrived, an officer trained as a negotiator was able to convince the three

suspects to come out of the apartment and they were arrested. They were identified as

Appellant, Lewis and Thomas and they were each subsequently charged with capital

murder for causing the death of Lujan while in the course of retaliating against Jimenez.


       On the morning of the shooting, Inga McCook, Thomas’s girlfriend, was cleaning

when she heard a boom similar to a dumpster lid closing. She went to look out her

window and saw Thomas carrying a black bag. Suddenly, she realized that Thomas

was in her apartment and he told her, “[t]hey shot him. They shot . . . the [racial slur].”

She ordered him out of her apartment. When he left her apartment, Thomas did not

have the black bag on his person.


       McCook also testified that Thomas called her from jail to tell her he had hidden

the black bag in a Christmas tree box in her bedroom closet. She found the bag,

discovered it had two guns inside and drove down a country road to dispose of them.

6
 There was confusion among different witnesses on whether all three suspects ran up the stairs or
whether Thomas ran upstairs to hide the black bag before returning downstairs to join Appellant and
Lewis in apartment number 112.


                                                4
When she returned to her apartment, investigators were waiting to question her and she

eventually led them to the area where she had tossed the guns.


       Appellant, Lewis and Thomas were each tested for gunshot primer residue. An

expert testified that a classic primer mixture consists of three compounds and a particle

of primer residue can contain one, two or all three of those compounds. He further

testified that a particle that contains all three compounds usually results from the

discharge of a firearm. The policy of the Texas Department of Public Safety is that any

gunshot primer residue collected more than four hours after a shooting is usually not

analyzed because too much time has passed. An exception is made when a district

attorney requests testing. However, under those circumstances, interpretations are not

drawn from the results.


       In the underlying case, Appellant’s test was taken outside the four hour window.

Notwithstanding the time frame, the results were consistent with Appellant having fired a

weapon or having been in the proximity to or touching a weapon that had been fired.

Due to the time frame issue, the expert did not draw any conclusions from those results.

Lewis’s test, however, was obtained within the four hour window and his results were

also consistent with having recently fired a weapon, being nearby when a weapon was

fired or contacting some surface with gunshot primer residue on it. Results from the

gunshot residue collected from Thomas, which was also timely obtained, did not show

any gunshot primer residue particles on his hands, but some was detected on the

pocket of his shorts.




                                           5
      Thomas originally agreed to testify against Appellant and Lewis at their trials in

exchange for an offer to plead guilty to a lesser included offense.        Following this

development, the State moved to jointly try Appellant and Lewis. The trial court granted

that motion and they were subsequently tried together in the same proceeding.

Eventually however, at Thomas’s plea hearing, he withdrew from his plea bargain and

instead entered a plea of guilty to the offense of capital murder. He testified that he

initiated the shooting and “it just wouldn’t seem right blaming two individuals that

absolutely had, you know, nothing to do with the whole situation, sir.”       At trial, an

excerpt from Thomas’s plea hearing was offered into evidence; however, the State’s

objection was sustained. It was subsequently introduced by the defense for purposes of

appeal.

                                        ANALYSIS


ISSUE ONE – LEGAL SUFFICIENCY OF THE EVIDENCE


      By his first issue, Appellant maintains the evidence is legally insufficient to

support his conviction for capital murder when the indictment alleges retaliation against

a person other than the victim of the murder as the aggravating circumstance elevating

the offense of murder to capital murder. We disagree.


      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 Brooks v. State, 323 S.W.3d 893,

912 (Tex.Crim.App. 2010). Under that standard, in assessing the sufficiency of the


                                            6
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; Brooks, 323 S.W.3d at 912. We measure the legal sufficiency of the evidence

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). In our review, we must evaluate

all of the evidence in the record, both direct and circumstantial, whether admissible or

inadmissible.   Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999), cert.

denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000).            We must give

deference to the responsibility of the trier of fact to fairly resolve conflicts in the

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).


      A person commits capital murder if he commits murder as defined in section

19.02(b)(1) and intentionally commits the murder in the course of committing or

attempting to commit, among other offenses, the offense of retaliation. TEX. PENAL

CODE ANN. § 19.03(a)(2) (W EST SUPP. 2012).          A person commits murder if he

“intentionally or knowingly causes the death of an individual.” Id. at § 19.02(b)(1). See

Adames v. State, 353 S.W.3d 854, 861-62 (Tex.Crim.App. 2011), cert. denied, 2012

U.S. LEXIS 2268, 132 S.Ct. 1763, 182 L.Ed.2d 533 (2012).             A person commits

retaliation if he intentionally or knowingly harms or threatens to harm another by an

unlawful act in retaliation for or on account of the service or status of another as an

informant. TEX. PENAL CODE ANN. § 36.06(a)(1)(A) (W EST 2011). An informant is a


                                           7
person who has communicated information to the government in connection with any

governmental function. Id. at 36.06(b)(2).


       By amended indictment, Appellant was charged with intentionally causing the

death of Jamie Lujan . . . in the course of committing or attempting to commit the

offense of retaliation against Mark Jimenez.         The charge instructed the jury on

transferred intent, the law of parties and criminal responsibility for conduct of another as

follows:


       [a] person is nevertheless criminally responsible for causing a result
       if the only difference between what actually occurred and what he
       desired, contemplated or risked is that:

              (1) a different offense was committed; or

              (2) a different person or property was injured, harmed
                  or otherwise affected.

       A person is criminally responsible as a party to an offense if the
       offense is committed by his own conduct, by the conduct of another
       for which he is criminally responsible, or both.

       Each party to an offense may be charged with commission of the
       offense.

       A person is criminally responsible for an offense committed by the
       conduct of another if acting with intent to promote or assist the
       commission of the offense, he solicits, encourages, directs, aids, or
       attempts to aid the other person to commit the offense.

       If, in the attempt to carry out a conspiracy to commit one felony,
       another felony is committed by one of the conspirators, all
       conspirators are guilty of the felony actually committed, though
       having no intent to commit it, if the offense was committed in
       furtherance of the unlawful purpose and was one that should have
       been anticipated as a result of the carrying out of the conspiracy.

See TEX. PENAL CODE ANN. §§ 6.04(b), 7.01(a) & (b), 7.02(a)(2) & (b) (W EST 2011).




                                             8
      Conspiracy requires an agreement with one or more persons that they or one or

more of them engage in conduct that would constitute the offense; and the person or

one or more of them performs an overt act in pursuance of the agreement. See TEX.

PENAL CODE ANN. § 15.02(a) (W EST 2011). The essential element of conspiracy is the

agreement to commit the crime. Williams v. State, 646 S.W.2d 221, 222 (Tex.Crim.App.

1983). A person may be guilty of conspiracy by doing nothing more than agreeing to

participate in the conspiracy so long as another co-conspirator does some overt act in

furtherance of the conspiracy. Walker v. State, 828 S.W.2d 485, 487 (Tex.App.—Dallas

1992, pet. ref’d).   However, if the evidence shows there was no actual, positive

agreement to commit a crime, the evidence is insufficient to support a conviction for

conspiracy.   Brown v. State, 576 S.W.2d 36, 43 (Tex.Crim.App. [Panel Op.] 1978).

Commission of the underlying substantive offense is not an essential element of

conspiracy. McCann v. State, 606 S.W.2d 897, 898 (Tex.Crim.App. [Panel Op.] 1980).

Since direct evidence of intent is rarely available, the existence of a conspiracy can be

proven through circumstantial evidence.        Rhoten v. State, 299 S.W.3d 349, 351

(Tex.App.—Texarkana 2009, no pet.).


      Nothing in section 19.03(a)(2) of the Penal Code requires that the intended victim

of the aggravating offense must also be the murder victim. See Chirinos v. State, 2011

Tex.App. LEXIS 147, at *14 n.3 (Tex.App.—Houston [14th Dist.] 2011, pet. ref’d).

Appellant does not cite this Court to any authority holding otherwise and we see no

reason to read such a requirement into the statute.


      Jimenez provided information to Constable Prado, a government official, on the

possible whereabouts of Lewis. Thus, he falls within the definition of an informant for

                                           9
purposes of the retaliation statute. Jimenez testified that he felt threatened when four

individuals made gestures to him when he left work the same day he gave that

information to Prado. McCook, who lived in an upstairs apartment at the Beverly Arms,

testified that Thomas told her Appellant and Lewis blamed Jimenez for Wright’s arrest

and were plotting against him. Lakeisha Davis testified that she told police two months

after the shooting that Appellant, Lewis, Thomas and others were going to “get” the

maintenance man [Jimenez]. Although she wavered in her testimony before the jury on

whether Appellant was present during the conversation, she did testify that the group

talked about shooting the maintenance man.


       Byronishia Moore, Lewis’s girlfriend and a tenant at the Beverly Arms, testified

that she and Lewis went to a motel room with a group a few days after Wright was

arrested. While there, they engaged in a conversation about getting the maintenance

man. She denied any conversation about killing Jimenez and just thought the group

was conspiring to beat him up.        We conclude the evidence shows that Appellant

conspired with others to harm or threaten to harm Jimenez in retaliation for providing

information to Constable Prado which led to Wright’s arrest.


       Appellant is guilty of Lujan’s murder regardless of which conspirator actually fired

the fatal shots. Thus, the evidence is legally sufficient to support the jury’s verdict that

Appellant, as a principal or party, murdered Jamie Lujan while in the course of

attempting to commit the offense of retaliation against Mark Jimenez as alleged in the

indictment. Issue one is overruled.




                                            10
ISSUE TWO – ADMISSION OF ANIMATION


        By his second issue, Appellant alleges error by the trial court in admitting State’s

Exhibit 35A, 7 a computer generated three-dimensional (“3-D”) time elapse animation

that purportedly reconstructs events surrounding the shooting, as viewed from Evans’s

perspective. The animation is approximately 120 seconds in length and purportedly

portrays her view from the bedroom window of her apartment and then from her front

door. In the animation three non-descript, identical, 3-D figures are seen standing in the

breezeway adjacent to a non-descript single level box-like object, purportedly

representing the office at the Emerald Green Apartments.                    The figures pause for

approximately five seconds at the corner of that object and then disappear around a

corner to the left. Approximately ten seconds later, seven loud gun shots are heard, all

of the same decibel, but with various time lapses in between each shot. Two seconds

after the last shot, the three figures are seen running through the breezeway in the

opposite direction until they disappear to the right.            The perspective then changes,

purportedly moving from Evans’s bedroom window to the front door of her apartment.

Thirty-two seconds later, the animation portrays a single figure running from left to right

across the screen.


        Leading up to the admission of the animation, Yolanda Evans testified she knew

Appellant and Lewis through their families. Just before the shooting, she was looking

out her apartment bedroom window and saw Appellant, Lewis and Thomas standing in

the alley near the Emerald Green Apartment office covering their faces with bandanas.


7
 Exhibit 35 is the animation with audio. Exhibit 35A is the animation sans audio. Unless otherwise
specifically noted, for purposes of this opinion we will refer to the exhibit simply as “the animation.”

                                                  11
When she inquired into their activity, they told her to stop being nosy. She ignored their

warning and watched them go around the corner toward the office, which was out of her

eyesight. She testified she heard “maybe five” shots and then saw the three individuals

running. She witnessed Thomas and Lewis passing something back and forth. She

momentarily lost sight of them in a blind spot then heard footsteps going upstairs. She

moved from her window to her front door where she witnessed Thomas almost at the

top of the stairs. Within seconds, she saw Thomas running down the stairs with a black

bag in his hands and “looking scared.”


      After Evans testified before the jury, in a hearing outside the jury’s presence, she

was questioned by the State for the purpose of authenticating the animation. While

Evans did state that the animation “accurately” depicted the view from her apartment

window and then from her front door on August 28, 2008, cross-examination seemed to

establish otherwise. Some of the questions related to the lack of a window screen in

the animation and the fact that her building sits at a higher elevation than portrayed in

the animation. Even though the gunshots in the animation were all the same decibel,

other evidence established that the victim sustained wounds from two different caliber

weapons, a .22 and .40 caliber.      Cross-examination further revealed that while the

suspects were of different body weights and heights, the suspects in the animation were

identical. Additionally, although the number of gunshots heard in the animation was

seven, Evans testified she heard “maybe five.”


      Numerous objections were lodged to the admission of the animation including

relevance, probative value versus unfair prejudice, confusion of the issues, and the



                                           12
inaccurate reflection of Evans’s testimony. All objections were overruled and Evans

was excused but was asked to leave a contact number.


      Although the animation was identified by Evans in her testimony outside the

presence of the jury, the State sought to introduce the exhibit before the jury through the

testimony of the person who created the animation, Officer Joe Fielder. Fielder testified

that using crime scene measurements, photographs, Evans’s statements and an

accident reconstruction computer software program, he was able to create the

animation.


      The State then asked to publish the exhibit, whereupon defense counsel

requested assurance that the record reflected their prior objections. At that point, the

judge asked counsel to approach and inquired as to Evans’s whereabouts.                 He

expressed the following concern:


      I just would expect that she should be here to testify to the jury that that’s
      the way it happened. I mean, that’s just simple enough, you know. He
      places it. She looks at it. She says that’s the way it happened. I mean, to
      me, that’s what you need.


The State responded that Officer Fielder was sufficient to sponsor the exhibit before the

jury and that Evans had already established its admissibility. In ruling the animation

admissible, the judge added, “[s]o, okay, I guess so. But I just – That’s not exactly the

way I thought it was going to unwind.”       Defense counsel then made hearsay and

confrontation clause objections which were overruled. The exhibit was admitted and

played for the jury.   In ruling the animation admissible, the trial court likened it to

admission of a photograph, a visual aid for the jury. Notwithstanding its ruling, the trial


                                            13
court again expressed concern in Evans not being available during Officer Fielder’s

testimony to authenticate the animation.


      The defense asked to have Officer Fielder qualified as an expert before testifying

about the animation. That objection was also overruled. During cross-examination,

Officer Fielder admitted to discrepancies in the details of the animation but explained

that some details were omitted because they require more memory to run the computer

program. He testified that the number of shots heard in the animation was based on the

number of shell casings found at the scene.          Following Officer Fielder’s cross-

examination, the trial court announced, “[b]ased on your cross, I’m going to sustain the

objection to the audio.” Counsel for Appellant commented the ruling was “a little late.”

Thereafter, the court instructed the jury to disregard the audio portion of the computer

generated animation, i.e., the seven gunshots. During redirect testimony, the court

excused the jury and asked the parties if they had previously agreed to the animation

during pretrial discovery. Defense counsel advised the court that they had only been

made aware of it a few days prior to trial. The court reiterated that the animation was

admissible, but that the State had not proven the audio portion to be fair and accurate.


      Appellant contends the animation was neither accurate nor supported by the

testimony because Fielder lacked sufficient personal knowledge of the details it purports

to reflect, such as placement of the individuals, elapsed time between distinguishable

events, number and volume of gun shots, and the direction and speed of travel of the

individuals portrayed, rendering the animation inadmissible. While we agree the trial

court erred in admitting the animation, we conclude the error was harmless.



                                           14
       “A computer animation is merely a series of images generated by a computer

that serves as demonstrative evidence. It may, for example, illustrate what a witness

saw, demonstrate for the jury the general principles that underlie an expert opinion, or

depict an expert’s theory of how an accident occurred. In each such instance, the

evidence may be authenticated by the witness’s testimony that the computer animation

presents a fair and accurate depiction . . . [of] what they purport to represent. If they do

not, they will not be admissible.”      Steven Goode, The Admissibility of Electronic

Evidence, 29 Rev. Litig. 1, 10 (Fall 2009).


       The use of animations to depict a crime scene has been approved by Texas

courts. The State cites Mendoza v. State, No. 13-09-00024-CR, 2011 Tex. App. LEXIS

4378 (Tex.App.—Corpus Christi 2011, no pet.) and Murphy v. State, No. 11-10-0150-

CR, 2011 Tex.App. LEXIS 7230 (Tex.App.—Eastland 2011, no pet), as authority for the

admissibility of such animations. In Mendoza, a computer generated three-dimensional

diagram of the crime scene was produced using a commercially available software

program. From that opinion it appears as if the animation depicted nothing more than a

three-dimensional rendering of the crime scene showing possible bullet trajectories. In

affirming the ruling of the trial court in admitting that evidence, the Corpus Christi Court

of Appeals noted that diagrams are generally admissible to explain the testimony of a

witness and render it more intelligible. 2011 Tex. App. LEXIS 4378, at *41. Nothing in

the Mendoza opinion approves the use of speculative animations showing anything

more than documented facts.


       Similarly, in Murphy v. State, No. 11-10-0150-CR, 2011 Tex. App. LEXIS 7230

(Tex.App.—Eastland 2011, no pet.), the Eastland Court of Appeals approved the use of

                                              15
a computer generated animation of a crime scene. In Murphy, the supporting witness

testified that he was a police officer assigned to the traffic division of the Midland Police

Department, and that his duties included accident investigations and preparing accident

reconstructions. He indicated that the purpose of the animation in question was simply

to show the amount of distance covered by two vehicles in a given period of time in

order to show the relative positions of the vehicles in the roadway. Unlike the animation

in this case, he also testified that all the information and assumptions he used to

generate the animation were based on speed and distance information actually known

to him or other investigating officers. After reviewing the animation, the court found that

the factual discrepancies depicted did not cause the probative value of the evidence to

be substantially outweighed by any unfair prejudice from its admission.


       The animations in both Mendoza and Murphy depicted inanimate objects based

on quantifiable measurements. In this case, however, the animation attempts to portray

the actions of at least four persons.     With respect to animations involving animate

objects, the Texas Court of Criminal Appeals has said, “[a]ny staged, re-enacted

criminal acts or defensive issues involving human beings are impossible to duplicate in

every minute detail and are therefore inherently dangerous, offer little in substance and

the impact of re-enactments is too highly prejudicial to insure the State or the defendant

a fair trial.” Miller v. State, 741 S.W.2d 382, 388 (Tex.Crim.App. 1987) (quoting Lopez

v. State, 651 S.W.2d 413, 414 (Tex.App.—Fort Worth 1983), opinion withdrawn by

Lopez v. State, 667 S.W.2d 624 (Tex.App.—Fort Worth 1984), which opinion was

reversed on other grounds, Lopez v. State, 664 S.W.2d 85 (Tex.Crim.App. 1985).

“[T]he artificial recreation of an event may unduly accentuate certain phases of the


                                             16
happening, and because of the forceful impression made on the minds of the jurors by

this kind of evidence, it should be received with caution.” Lopez, 651 S.W.2d at 414

(quoting People v. Dabb, 32 Cal.2d 491, 498, 197 P.2d 1, 5 (1948)). This is especially

true where the event sought to be depicted is simple, the testimony adequate, and the

animation adds nothing more than a one-sided, manipulated visual image to the mental

picture already produced in the mind of the jurors by the oral testimony of an eye-

witness who has been subjected to the crucible of cross-examination.


       We review a trial court’s ruling on the admissibility of this exhibit under an abuse

of discretion standard. Coble v. State, 330 S.W.3d 253, 272 (Tex.Crim.App. 2010). We

must uphold the trial court’s ruling if it is within the zone of reasonable disagreement.

Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000).


       Before State’s Exhibit 35 was admitted, the defense asked to have Fielder

qualified as an expert. That objection was overruled and he testified as a lay person.

He testified that by using crime scene measurements, photographs, Evans’s statements

and an accident reconstruction computer software program, he was able to create the

animation. Nothing in the record, however, supports many of the details contained in

the animation. Those details were provided by nothing more than pure speculation on

his part. Accordingly, we conclude the trial court abused its discretion in admitting the

computer generated animation.


       Finding error in the admission of the animation does not, however, end our

inquiry.   The admission of evidence in violation of an evidentiary rule is non-

constitutional error. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). We


                                            17
must disregard the error if it did not affect Appellant’s substantial rights. TEX. R. APP. P.

44.2(b). We review the entire record to ascertain the effect or influence on the verdict of

the wrongfully admitted evidence. Barshaw v. State, 342 S.W.3d 91, 93 (Tex.Crim.App.

2011); Motilla v. State, 78 S.W.3d 355-56 (Tex.Crim.App. 2002). Reversal is required

for non-constitutional error if the reviewing court has grave doubt that the result of the

trial was free from the substantial effect of the error. Burnett v. State, 88 S.W.3d 633,

637 (Tex.Crim.App. 2002). “Grave doubt” means that “in the judge’s mind, the matter is

so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of

the error. Thus, in cases of grave doubt as to harmlessness the petitioner must win.”

Id. at 637-38 (citing O’Neal v. McAninch, 513 U.S. 432 436, 115 S.Ct. 992, 130 L.Ed.2d

947 (1995)).


       The crux of the case against Appellant was linking him to the conspiracy to get

Jimenez. Davis’s testimony linked him to an agreement with others to retaliate against

Jimenez for giving Constable Prado information which led to the arrest of his friend.

The animation did little to answer that question. Moreover, the improper admission of

evidence is harmless if the trial record contains other, properly admitted evidence that is

probative of the same manner.           See Saldano v. State, 232 S.W.3d 77, 102

(Tex.Crim.App. 2007). Considering the entirety of the record, including the contested

issues, we conclude that Appellant’s substantial rights were not affected by admission

of the animation and that the error in admitting it was harmless. See generally Miller v.

State, 741 S.W.2d 382, 388 (Tex.Crim.App. 1987).


       As a subsidiary argument in his brief, Appellant complains he was harmed by the

trial court’s tardy instruction to the jury to disregard the audio portion of State’s Exhibit

                                             18
35 after realizing the audio was not supported by Evans’s testimony. Specifically, he

asserts the trial court’s admonition to the jury was “too little and excessively late.”


       It is well established that an instruction to disregard generally cures any error in

the improper admission of evidence.            Barefield v. State, 784 S.W.2d 38, 44

(Tex.Crim.App. 1989).     An instruction to disregard is a corrective measure because it

attempts to cure any harm or prejudice resulting from events that have already

occurred.   Young v. State, 137 S.W.3d 65, 69 (Tex.Crim.App. 2004).              There is an

appellate presumption that an instruction to disregard the evidence will be obeyed by

the jury. Gardner v. State, 730 S.W.2d 675, 698 (Tex.Crim.App. 1987).


       We conclude the trial court instructed the jury to disregard the audio as promptly

as possible under the circumstances and disagree with Appellant that the instruction

came too late. See Cordova v. State, 296 S.W.3d 302, 312 (Tex.App.—Amarillo 2009,

pet. ref’d). We presume the instruction’s curative effect was not diminished. Id. Issue

two is overruled.


                                        CONCLUSION


       Accordingly, the trial court’s judgment is affirmed.




                                                   Patrick A. Pirtle
                                                       Justice

Publish.




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