                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-14-00145-CR


MICHAEL BLAKE BOURNE                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                     TRIAL COURT NO. CR11038

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                        MEMORANDUM OPINION 1

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      Appellant Michael Blake Bourne appeals from his conviction for

aggravated assault with a deadly weapon and 28-year sentence. In a sole issue,

Appellant argues that the trial court erred by admitting “voluminous inflammatory

pictures” over counsel’s objection. We affirm.




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       See Tex. R. App. P. 47.4.
      As part of a domestic dispute, Appellant repeatedly hit Danny Brock with a

baseball bat after Brock allegedly attacked Appellant’s girlfriend. At trial, five

photographs of Brock’s injuries taken soon after the incident were admitted into

evidence without objection as State’s Exhibits 19, 20, 21, 23, and 24 (the five

photographs). Six photographs of Brock’s injuries taken three days after the

attack were also admitted into evidence as State’s Exhibits 25, 26, 27, 28, 29,

and 30 over Appellant’s objection that the pictures were cumulative of other

evidence and were “not relevant to the case at hand on the day in question” (the

six photographs). On appeal, Appellant asserts that the six photographs were

inadmissible because their probative value was outweighed by the prejudicial

effect of their admission and because the photographs were cumulative. See

Tex. R. Evid. 403.

      The State first argues that Appellant’s trial objection did not preserve his

arguments under Rule 403.       We agree that Appellant’s “relevance” objection

raised Rules 401 and 402, i.e., that the six photographs did not make the

existence of any fact that is of consequence more or less probable and were

therefore irrelevant and inadmissible. See Tex. R. Evid. 401–402. Appellant’s

trial objection did not alert the trial court that he was challenging the six

photographs’ prejudicial effect. See Bekendam v. State, 441 S.W.3d 295, 300

(Tex. Crim. App. 2014) (“The complaining party must [object] clearly enough for

the judge to understand and at a time when the trial court is in a position to do

something about it. . . . We are not hyper-technical . . . but the point of error on


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appeal must comport with the objection made at trial.”). Accordingly, Appellant

forfeited his argument under Rule 403 that the six photographs’ probative value

was outweighed by their prejudicial effect. See, e.g., Sony v. State, 307 S.W.3d

348, 355–56 (Tex. App.—San Antonio 2009, no pet.) (holding relevance

objection to photographs at trial did not preserve appellate argument based on

Rule 403). See generally Tex. R. App. P. 33.1(a); Tex. R. Evid. 103.

      But Appellant specifically objected that the six photographs were

needlessly cumulative of other evidence. Appellant again raises this argument

on appeal. Appellant preserved his argument that the six photographs, although

relevant, were impermissibly cumulative and, thus, inadmissible. See Tex. R.

Evid. 403. We review a trial court’s admission of evidence under an abuse-of-

discretion standard, reversing only when the trial court’s decision falls outside the

zone of reasonable disagreement. See Rodriguez v. State, 203 S.W.3d 837, 841

(Tex. Crim. App. 2006); see also Hays v. State, 85 S.W.3d 809, 815 (Tex. Crim.

App. 2002).

      Most of the six photographs showed three-day-old injuries to Brock’s left

elbow and side (State’s Exhibit 25); head (State’s Exhibit 26); left leg (State’s

Exhibit 27); back, left side, and left arm (State’s Exhibit 29); and right leg (State’s

Exhibit 30). State’s Exhibit 28 shows a wound on an unidentified body part,

which Brock claimed was a knife wound sustained in the attack.                The six

photographs were not cumulative of the five photographs because they depicted

the extent of Bock’s injuries three days after Appellant’s attack, while the five


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photographs were of Brock’s injuries the day of the attack. See In re K.Y., 273

S.W.3d 703, 710–11 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Further,

the six photographs accompanied testimony regarding the extent of Brock’s

injuries, which allowed the jury to assay the sponsoring witness’s credibility. See

Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999), cert. denied,

528 U.S. 1082 (2000).     Therefore, they were not so cumulative that the six

photographs were inadmissible. To the extent Appellant argues the photographs

were cumulative because they were multiple pictures of the same injuries, we

again disagree. Each of the six photographs showed a different injury Brock

sustained, which mitigates against Appellant’s cumulative argument.           See

Matamoros v. State, 901 S.W.2d 470, 476 (Tex. Crim. App. 1995); Bacey v.

State, 990 S.W.2d 319, 326 (Tex. App.—Texarkana 1999, pet. ref’d).

      We conclude the trial court did not abuse its discretion in admitting the six

photographs into evidence. We overrule Appellant’s sole issue and affirm the

trial court’s judgment. See Tex. R. App. P. 43.2(a).



                                                   /s/ Lee Gabriel

                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 18, 2014


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