Affirmed; Opinion Filed February 13, 2020




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-19-00376-CR

                         ARCHIE DOMINIC ROBERTS, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 7
                                   Dallas County, Texas
                           Trial Court Cause No. F-1776963-Y

                             MEMORANDUM OPINION
                          Before Justices Myers, Schenck, and Carlyle
                                   Opinion by Justice Carlyle

       A jury convicted appellant Archie Dominic Roberts of aggravated assault with a deadly

weapon and assessed punishment at sixty years’ imprisonment. In his sole issue on appeal, Mr.

Roberts contends the trial court abused its discretion by admitting photographs of a witness’s

injuries into evidence during the trial’s guilt/innocence phase. We affirm in this memorandum

opinion. See TEX. R. APP. P. 47.4.

Background

       Mr. Roberts was indicted for shooting Jacob Arellano. At trial, Priscilla Garcia testified

that at about 4:30 a.m. on December 21, 2017, Mr. Arellano drove her and her ten-year-old son,

D.H., to a convenience store in his truck. All three rode in the truck’s front bench seat, with Ms.

Garcia nearest to the front passenger window and D.H. between the two adults. Mr. Arellano
parked near a gas pump and went into the store to get some tacos. Ms. Garcia and D.H. remained

in the truck.

         According to Ms. Garcia, while Mr. Arellano was in the store, Mr. Roberts and another

man approached the truck’s front passenger window and Mr. Roberts tried to talk to her. She began

rolling up the window and told Mr. Roberts, “Get away from the truck. I have my son in the car.

Show a little bit of respect.” Mr. Roberts “put his hand in the window trying to get it to come

down.”

         Mr. Arellano came out of the store, walked quickly to the truck’s passenger side, and asked

the two men why they were there. Mr. Roberts stepped back from the window and pushed Mr.

Arellano, who then pushed Mr. Roberts. Ms. Garcia testified she saw Mr. Roberts “pull out a gun,”

fire several shots at Mr. Arellano, then head toward the back of the truck. She grabbed her son,

pushed him to the floor, and leaned over him to shield him. She lifted her head to look for Mr.

Arellano and saw him “wrestling” with the two men “to get them to stop shooting.” At that point,

she “heard a ring” in her ear. When “[e]verything got quiet,” she and D.H. ran into the convenience

store. Mr. Roberts and the man with him had fled the scene. She realized she had been shot in the

left side of her face and D.H. had been shot in his leg. They were taken to a hospital by ambulance.

         During Ms. Garcia’s testimony, the State offered into evidence ten photos of her taken at

the hospital. Defense counsel objected to five of those photos—State’s Exhibits 12, 13, 14, 17, and

18—as being “duplicitous of the other exhibits as well as overly prejudicial and meant only to

inflame the passion of the jury.” The State argued those photos were admissible because they were

“from different angles, different perspectives.” The trial court overruled defense counsel’s

objection and the photos were published to the jury. Ms. Garcia testified a bullet entered near her

left ear and exited near her left eye as she was leaning over her son, leaving her with permanent

damage and scarring.

                                                –2–
       About a week after the incident, police interviewed Ms. Garcia and conducted a

photographic lineup consisting of six photos shown to her one by one. She testified she initially

told police she was “confident” the fourth photo “could” be the person she saw shoot Mr. Arellano.

But when she was subsequently shown the fifth photo, which was Mr. Roberts, she told police

“not the previous” and stated she was “a hundred percent confident” the man in the fifth photo was

the person who shot Mr. Arellano.

       Mr. Arellano testified he saw Mr. Roberts pull out a gun and shoot him in the stomach. Mr.

Arellano then saw the other man run to a tan Camry parked nearby and “come out of nowhere

shooting.” Mr. Arellano “wrestled” with that man and was shot in the arm during that struggle.

Mr. Roberts and the other man then drove off in the Camry.

       During closing, the State asserted “the only issue that has been raised in this trial . . . is

whether this man, Archie Roberts, was the shooter,” and “[t]here is no reason not to believe all of

the evidence before you.” Defense counsel argued that “[n]o physical evidence was even attempted

in this case” and the State’s only evidence was testimony from witnesses who were “not credible.”

Trial court did not abuse its discretion by admitting photos of witness’s injuries

       We review a trial court’s decision to admit or exclude evidence under an abuse of discretion

standard and will not reverse the trial court’s ruling unless it falls outside the zone of reasonable

disagreement. See, e.g., Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016); Torres v.

State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002).

       Relevant evidence is that which has any tendency to make a consequential fact more or

less probable than it would be without the evidence. TEX. R. EVID. 401. “Evidence need not by

itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a

small nudge toward proving or disproving some fact of consequence.” Duntsch v. State, 568




                                                 –3–
S.W.3d 193, 216 (Tex. App.—Dallas 2018, pet. ref’d) (quoting Stewart v. State, 129 S.W.3d 93,

96 (Tex. Crim. App. 2004)).

       A trial court may exclude relevant evidence when its probative value “is substantially

outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue

delay, or needlessly presenting cumulative evidence.” TEX. R. EVID. 403; see Martinez v. State,

327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Evidence is unfairly prejudicial when it has an

undue tendency to suggest an improper basis for reaching a decision. Reese v. State, 33 S.W.3d

238, 240 (Tex. Crim. App. 2000). Rule 403 favors the admission of relevant evidence and carries

a presumption that relevant evidence will be more probative than prejudicial. Gallo v. State, 239

S.W.3d 757, 762 (Tex. Crim. App. 2007). Thus, the balance is always slanted toward admission

of relevant evidence. De La Paz v. State, 279 S.W.3d 336, 343 & n.17 (Tex. Crim. App. 2009).

The rule envisions excluding relevant evidence only when there is a “clear disparity between the

degree of prejudice of the offered evidence and its probative value.” Hammer v. State, 296 S.W.3d

555, 568 (Tex. Crim. App. 2009).

       When conducting a rule 403 analysis, courts must balance (1) the inherent probative force

of the proffered item of evidence, along with (2) the proponent’s need for that evidence, against

(3) any tendency of the evidence to suggest 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). “[T]hese factors may well blend together in practice.” Id. at

642.




                                               –4–
       In determining whether photographic evidence is unfairly prejudicial, we consider the

number of photographs, the size, whether they are in color or black and white, whether they are

“gruesome,” whether any bodies are naked, the availability of other means of proof, and other

circumstances unique to the individual case. Davis v. State, 313 S.W.3d 317, 331 (Tex. Crim. App.

2010). If 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).

       Here, Mr. Roberts asserts the trial court abused its discretion by admitting State’s Exhibits

12, 13, 14, 17, and 18 into evidence because those photos were “duplicative” and therefore “failed

to add anything logical or relevant that made it more probative than prejudicial” and “were used

simply to inflame the passions of the jury.” He contends he was harmed because “[d]uplicative

photographs could only be argued as being relevant to [his] character—that he was a bad person

for having shot the victim,” and “the State unfairly placed [his] character at the very core of its

case by relying on the emotional and prejudicial aspects of these photographs to arouse the

passions of the jury during the guilt/innocence phase which had the effect of tainting the jury’s

view of the evidence presented during trial.”

       Though Mr. Roberts contends the photos’ “duplicative” nature renders them “irrelevant”

to any consequential fact in this case, he does not explain or describe what the photos duplicate.

To the extent he contends the photos are duplicative of Ms. Garcia’s testimony, “[w]e reject the

premise that visual evidence accompanying oral testimony is cumulative of the testimony or that

it is of insignificant probative value.” Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim.

App. 1999). “Visual evidence accompanying testimony is most persuasive and often gives the fact

finder a point of comparison against which to test the credibility of a witness and the validity of

his conclusions.” Id.

                                                –5–
           Further, the record does not show the complained-of photos were duplicative of each other

or of additional photos of Ms. Garcia’s wounds that were admitted without objection as Exhibits

9, 15, and 16.1 Exhibit 12, a side view of Ms. Garcia’s head, showed both of her wounds and their

locations relative to her head and neck, but contained glare near the entrance wound. Exhibit 13

was a close-up of the side of her face and showed the bullet’s exit path more clearly than the other

photos. Exhibit 14 was a close-up of the side of her face taken from a slightly different angle that

showed the exit wound’s depth and its position relative to the entrance wound, without glare.

Exhibit 17 showed a ruler next to the entrance wound that indicated the wound’s size but also

blocked the surrounding damage. Exhibit 18, a front view of Ms. Garcia’s face, showed the exit

wound’s full depth but not the surrounding damage or that wound’s relation to the entrance wound.

Thus, each photo differed from the others and provided information that could aid in assessing Ms.

Garcia’s account of these events, which in turn bore on her credibility, a matter of consequence in

this case. We cannot agree with Mr. Roberts that the complained-of photos lacked relevance. See

TEX. R. EVID. 401; Duntsch, 568 S.W.3d at 216 (“it is sufficient if the evidence provides a small

nudge toward proving or disproving some fact of consequence”); see also Walker v. State, No. 06-

19-00080-CR, 2019 WL 6834800, at *6 (Tex. App.—Texarkana Dec. 16, 2019, no pet.) (mem.

op., not designated for publication) (concluding two photographs of single gunshot wound taken

at similar angles but from different distances aided jury in understanding events surrounding

shooting and thus were both relevant).

           Nor do we agree with Mr. Roberts that the photos were “inflammatory.” The photos

showed only Ms. Garcia’s head and their presentation consumed only two pages of the reporter’s

record. See Davis, 313 S.W.3d at 331. Though the appellate record is silent as to the original


     1
        Exhibit 9, which showed Ms. Garcia’s upper half as she was lying on a stretcher covered up to her neck with blankets, was taken from a
greater distance than any of the other photos and also contained substantial glare on her ear and face, thus making it the least detailed of the photos
admitted. Exhibit 15 was a close-up of her exit wound with a ruler that showed the wound’s measurements but blocked the area surrounding the
wound. Exhibit 16 was a close-up of the entrance wound and a portion of the exit wound.

                                                                        –6–
exhibits’ size and whether they were in color or black and white, the complained-of photos were

no more gruesome than the depictions of Ms. Garcia’s wounds in Exhibits 9, 15, and 16, which

were not objected to. Other than his relevancy challenge that we reject, Mr. Roberts does not

explain, and the record does not show, how the five complained-of photos had any undue tendency

to suggest an improper basis for reaching a decision. See Reese, 33 S.W.3d at 240.

       We conclude the complained-of photos were relevant to the issues raised at trial and their

probative value was not substantially outweighed by the danger of unfair prejudice. See Hammer,

296 S.W.3d at 568–69. Consequently, the trial court’s decision to admit those photos did not

constitute an abuse of discretion. See id.; Erazo, 144 S.W.3d at 491–92. We decide Mr. Roberts’s

issue against him and affirm the trial court’s judgment.


                                                           /Cory L. Carlyle/
                                                           CORY L. CARLYLE
                                                           JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
190376F.U05




                                               –7–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 ARCHIE DOMINIC ROBERTS, Appellant                  On Appeal from the Criminal District Court
                                                    No. 7, Dallas County, Texas
 No. 05-19-00376-CR         V.                      Trial Court Cause No. F-1776963-Y.
                                                    Opinion delivered by Justice Carlyle.
 THE STATE OF TEXAS, Appellee                       Justices Myers and Schenck participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 13th day of February, 2020.




                                              –8–
