                   PD -
                                                               ORIGINAL

   IN   THE   TEXAS    COURT    OF    CRIMINAL      APPEALS




                FRANCES      ROZALES        FORD


                          Appellant                            COURT OF CRIMINAL APPEALS
                                                                     JUN 2 6 2015
                             vs.




                 THE    STATE    OF    TEXAS


                          Appellee




               Fran The Fourth Court of Appeals
                  Cause No. O4-14-O0025-CR




        Appeal FromThe 227th Judicial District Court
                      Bexas County/ Texas
                       No. 2011-CR-2986




APPELLANT'S    PETITION      FOR     DISCRETIONARY         REVIEW


                                                                     FILED IN
                                                           uuuh I Uh CRIMINAL APPEALS
                                                                    JUN 26 2015

                                                               Abel Acosta, Clerk


                                     Frances Rozales Ford/ Pro Se
                                     TDCJ-CID # 01916749 / Crain Unit
                                     1401 State School Rd. /
                                     GatesviUe, TX 76599
                   STATEMENT     REGARDING    ORAL   ARGUMENT



     Appellant     hereby    waives    oral     argument    due to her pro se

status in this petition for discretionary review (PDR).

     Appellant's     PDR    is   self-sufficient        to allow the Court to

make an adequate decision relevant to the issues raised here.
                                   IDENTITY       OF    PARTIES      AND    COUNSEL




        Pursuant              to        TEX.R.APP.PRO.             68.4(a)/    the identities of the

parties and counsel                      are as follows:


TRIAL   JUDGE:

        HON.    DICK          ALCALA/
        Senior District Judge sitting by assignment/
        C/O Fourth Administrative Judicial Region/
        100    Dolorosa             St./
        San Antonio/                Texas       78205



APPELLANT/PETITIONER:
        Frances R.             Ford/       pro se
        TDCJ-CID # 01916749
        Christina Melton Crain Unit
        1401       State       School       Rd.,
        Gatesville,                TX    76599




TRIAL    COUNSEL:


        MONICA       GUERRERO
        5150 Broadway/                   Suite 114
        San Antonio,                TX    78209




STATE    OF    TEXAS:



        SUSAN       D.    REED,          DISTRICT       ATTORNEY
        BEXAR       COUNTY,             TEXAS
        DAVID       WARREN          HENDERSON          and    ERIC   JOHN    FUCHS,
        Assistant District Attorneys
        Paul       Elizondo             Tower,
        101    Nueva St. Suite 310,
        San    Antonio, TX 78204




COUNSEL       ON    DIRECT          APPEAL:


        MICHAEL          D.    ROBBINS
        Assistant             Public       Defender
        Paul       Elizondo             Tower,
        101 W. Nueva St- Suite                         310
        San Antonio, TX 78704

                                                             l i
                              TABLE    OF   CONTENTS
TABLE OF CONTENTS                                      :                     iii

STATEMENT REGARDING ORAL        ARGUMENT                                       i

IDENTITY OF PARTIES AND COUNSEL                                              ii

INDEX OF AUTHORITIES                                                          iv

STATEMENT OF THE CASE                                                          1

STATEMENT OF PROCEDURAL HISTORY.                                              .1

GROUNDS FOR REVIEW.                                                            2

ARGUMENT.                          .                                           3

   1. Whether the court of appeals erred in rejecting
      Appellant's issues related to the trial court's
         rulings relevant to the [jury view]                    of the two
         crash   vehicles   involved   in   the   accident                     3


   2. Whether the jury view of the two crash vehicles
      was more prejudicial than probative      ••*•                            3

DEFENSE OBJECTIONS                                     •                       3

JURY VIEWS,      STANDARD OF REVIEW.                                           4

THE 403 RULE      ERROR                                                        6

APPLY THE SHUFFIELD FACTORS                                                    8

CONCLUSION                                                                     9

PRAYER                                                     -.                 10

CERTIFICATE OF SERVICE . .                                                    10




                                        ill
                         INDEX   OF   AUTHORITIES



Jones v. State,   843 S.W.2d 487 (Tex .Crim. App . 1992)           4

Martinez v. State, 327 S.W.3d 727 (Tex.Crim.App.      2010)       .4

Mauricio v. State,    153 S.W-3d 389 (Tex.Crim.App.    2005)   4,5,6

Oprean v. State, 201 S.W.3d 724 (Tex.Crim. App. 2006)              7
Sanders v. State, 422 S.W.3d 809 (Tex.App.-Dallas 2014, no pet.)
                                                                   7

Shuffield v. State,   189 S.W.3d 782 (Tex.Crim.App. 2006)        7,8




                                      IV .
                                           STATEMENT       OF    THE    CASE




        This        was        a     trial     on        punishment only, following a guilty

plea     to        the        jury. Appellant ("Ford") was charged by indictment

with     the offense of                felony murder,             TEX.PENAL CODE § 19.02(b)(3),

Cause        No.     2011-CR-2986).                 (CR,12).           A jury was worn (RR2,            175),

and     Ford        pleaded guilty.                (RR 3, 10). Ford elected that the jury

assess        punishment.              (CR,        115).        Following       the   presentation of

evidence           and        argument        of        counsel,        the jury found Ford guilty

of     murder,           as        directed by the trial court,                  and assessed a LIFE

sentence.           (CR,           125-126;    RR 5, 41-42). The trial court certified

Ford's        right           to     appeal. (CR, 118). Notice of Appeal was timely

filed.        (CR,        130,        138). The trial court appointed the Appellate

Public        Defender's              Office        of     Bexar       County     to represent Ford.

(CR, 136). The appellate brief was timely filed.



                                   STATEMENT       OF    PROCEDURAL       HISTORY




        On     April           1,     2015,        the     Fourth Court of Appeals                affirmed

the     judgment              with     a     modification              to delete the assessment of

attorney's           fees.           A copy of the judgment is attached as Appendix

A.


        Ford        asked           this     Court        for    an     extension     of   time    to    file


her     PDR.        The        extension           was     granted until June 30,            2015. Ford

has     placed           this        PDR     in the United States Mail service on June

29,    2015. Therefore,                this PDR is timely.




                                                          (1)
                                        GROUNDS   FOR    REVIEW


1.            Whether the court of appeals erred in rejecting
              Appellant's issues related to the trial court's
              rulings relevant to the [jury view]                     of the     two
              crash    vehicles          involved   in    the   accident.




              Whether the jury view of the two crash vehicles
              was more prejudicial than probative.




GROUND ONE:          The     trial court erred accordingly when it overruled

Appellant's          objection          to the jury view of           the vehicles involved

in    the   accident,      because       there    was   no   assurance    that   the   vehicles

did     not    change        in     appearance between the time of the accident

and the time of the jury view.                    (RR 3, 7).



GROUND TWO:          The     trial court erred when it overruled Appellant's

objection       to     the        jury view of the vehicles involved in the car

accident,       because           the    prejudicial         effect    of the jury view

[substantially] outweighed its probative value.                           (RR 3, 7).
                                                       ARGUMENT




              Whether the court of appeals erred in rejecting
              Appellant's issues related to the trial court's
               rulings relevant to the [jury view] of                                         the two
                  crash       vehicles          involved          in       the    accident.

               Whether the jury view of the two crash vehicles
               was more prejudicial than probative.




        These           two        grounds           for     review              are     argued together, with

sub-points,             because they both apply to the same set of facts.

        On     December              10,        2013,        six           days prior to jury selection,

the     State           filed        a     belated           Notice              of Intent to Have the Jury

View     Evidence              Outside           the Courtroom.                   (CR,    113-114).   The notice

stated        that           the     jury view of the two vehicles would be                              "highly

probative              to     the        crash        dynamics,"                 and     that [no] photos were

available "showing the vehicles as the would have been positioned

heading           into        impact           with        each        other." The proposed jury view

was     to        be        held     in        the     closed portion of South Main Avenue                     ,

between the Bexar County Courthouse and Justice Center.

        The        trial           court        conducted              a     hearing        on the notice, but

[after]           the        jury        was     selected              and        prior to the presentation

of     any        evidence.              The     hearing was held outside the presence of

the jury.

DEFENSE       OBJECTIONS             TO    THE       JURY    VIEW



        Ford's              attorney           raised two objections relevant to the jury

view:        (1)        it     cannot           be     ascertained how the vehicles appeared

prior        to        the     crash,           and their appearances have changed in the

three        years (plus) since the crash (RR3, 5-6); (2)                                         the proposed

                                                             (3)
view      "shows           unfair           prejudice              to        [Ms. Ford] as opposed to the

probative value."                   (RR 3,        5-6).

         The        trial        court          overruled               the defense objections.                   (RR 3,

7).      During           the       actual         trial,              the        jury was admonished by the

court         regarding             the      view        of the staged vehicles.                      The jury was

then      taken          outside            the    courtroom                to   view     the    vehicles.       Defense


counsel         did        not        renew her objection,                         but stood silent, and did

not      waive          the      objection              by saying,                "No objection."          (RR 3, 88-

89) .


JURY     VIEWS,         STANDARD OF             REVIEW


         The        term        "view,"           as     understood                in    law,    refers    to    the   act

or     process           by which the trier of fact ventures                                      forth to observe

places         or       objects           that         are        material              to litigation,          but that

cannot         reasonably              be       brought,               or        satisfactorily           reproduced,

within         the courtroom. If the trier of fact is a jury, the [view]

is      properly           termed a "jury view." Mauricio v. State,                                        153 S.W.3d

389,      392           (Tex.Crim.App.                 2005).           The        decision whether to grant

or     deny         a     jury        view        rests within the sound discretion of the

trial         court.          Id.     at 393 (citing Jones v.                            State,    843 S.W.2d 487,

499      (Tex.Crim.App.                   1992)).            A     court abuses its discretion when

its      ruling does             not fall within the zone of reasonable disagree

ment.         Martinez           v.       State,         327           S.W.3d           727,    736 (Tex.Crim.App.

2010).

         In     exercising                its      discretion                    regarding        a jury view,         the

trial         court        "must          consider               the        totality of the circumstances

of      the     case,           but not limited to,                         the timing of the request for

                                                                 (4)
the     jury        view,     the difficulty and expense of arranging it,                          the

importance           of     the     information           to        be gained by it,      the extent

to     which        the    information       has    been       or    could   be secured    from more

convenient           sources        (e.g.,       photographs,            videotapes,       maps,    or

diagrams),           and     the     extent        to     which the place or object to be

viewed        may     have        changed     in        appearance           since the controversy

began."        Mauricio,           153    S.W.3d at 393. The trial court must also

implement           appropriate          safeguards to insure fundamental fairness

to     the     accused,       as well as to protect the trial's truth-finding

function.       Id.,       n.3.


THERE WAS       OTHER,       MORE    RELIABLE       EVIDENCE USED THAT WAS             MORE   CLEAR
AND [ACCURATE] THAN THE [STAGED VEHICLES VIEWED BY THE JURY.

        The     accident           investigator           in        this case was SAPD Sergeant

Scott        Foulke.        Sergeant        Foulke used a Sokkia Total Station. (RR

3,     78).     This        particular        device           is a robotic measuring system

that     permits           accurate       measurements of an accident scene. It is

accurate        to        within     l/16th        of an inch from a mile away.               (RR 3,

79).         This device is similar to                    surveying equipment,            and allows

the user to create a precise scaled diagram.                                  (RR 3, 77). Sergeant

Foulke's        scaled        diagram        was admitted into evidence without any

objections from either side. (RR 3, 81; RR 6, SX20). The diagram,

plus     Sergeant Foulke's testimony, provided authentic crash scene

dynamics        immediately              after     the crash itself. (RR 6, SX17). The

two actual vehicles,                hauled to the viewing site at the courthouse

(more        than     three        years after the fact) and staged for the jury

view     in     broad        daylight,           were not authentic conditions that by

any     means        replicated           U.S. 281 at night, and were certainly not

                                                    (5)
CAN    THIS    COURT       REASONABLY            CONCLUDE           THAT    THE   TWO     VEHICLES      HAD    NOT
[CHANGED]       IN THE 38 MONTHS [AFTER] THE CRASH THAT OCCURRED EARLY
IN THE MORNING OF OCTOBER 14,                               2010)? (RR 3/16).


        Among        the        factors           a        court     should consider in exercising

its     discretion              in     permitting a view is the extent to whcih the

item     viewed           may        have        changed           since     the time the controversy

began.        Mauricio,              153     S.W.3d           at     393.       This was one of the two

objections           by         Ford        as        to     the jury view.          (RR 3, 5-8).             Here,

the     controvery              began        on October 14, 2014.                   (RR 3, 16);         the jury

view     occurred over three years [afterwards] on December 17, 2013.

(RR     3,     1,     88-89)). There is no evidence describing how the two

vehicles        looked           during          the jury view. There are 11 photographs

in     evidence showing the vehicles on the                                  [night] of the accident.

(RR 6, SX4-SX11, SX16 & SX17)- versus the [daylight]                                             jury view.

        These photographs,                   without exception,                   show that the violence

of     the     crash        caused           the           vehicles        to partially disintegrate.

Glass,        metallic           debris,              and    even    a   tire      from    one   vehicle       were

strewn all over the vicinity,                               including between the two vehicles.

This     is     apparent              in     State's           Exhibit          17, which shows a large

debris        field.        This           large           debris    filed could not             (and was not)

reconstructed              for        the        jury        view.       Even if both vehicles could

have     remotely           been           preserved           (without           intention alteration),

they     could        not        have        looked           like they did in the actual crash

scene photographs versus the [staged] jury view.

THE    PREJUDICE          HERE       VERSUS      THE        PROBATIVE       VALUE   OF    THE    JURY   VIEW



        A.    Rule    403       Error


        Admission           of evidence over a Rule 403 objection is reviewed

                                                             (6)
on   an    abuse    of   discretion       standard.         A   court   abuses   its   discretion

when       its     ruling        falls outside the zone of reasonable disagree

ment.        Oprean v. State, 201 S.W.3d 724, 726 (Tex.Crim.App. 2006).

Additionally,             error     may not be predicated on a ruling admitting

evidence         unless      a [substantial] right of the party is affected,

and unless the party timely makes a proper objection. TEX.R.EVID.

103(a).

          TEX.R.EVID.       403 provides as follows:

          Although  relevant, evidence may be excluded if its
          probative value is substantially outweighed by the
          danger of unfair prejudice, confusion of the issues,
          misleading  the  jury,  or  by  considerations of undue
          delay, or needless presentation of cumulative evidence.



          The appellate courts will consider four nonexclusive factors

in     considering          whether           the probative value of evidence is sub

stantially          outweighed           by     the     danger     of unfair prejudice: (1)

the       probativeness           of     the        evidence;     (2)    the potential of the

evidence          to impress the              jury in some irrational , but neverthe

less       indelible way;          (3) the time the proponent needs to develope

the       evidence;        and     (4)        the     proponent's need for the evidence.

Shuffield          v.     State,       189      S.W.3d 782, 787 (Tex.Crim.App. 2006),

cert,      denied,       549 U.S.      1056)2006).          TEX.CODE CRIM.PRO.         art.   37.07,

§     3(a)       governs     the       admission of punishment evidence. However,

Rule       403     also     applies           at the punishment phase of a trial, and

otherwise          admissible          punishment           evidence may still be excluded

under        the rule. Sanders v. State, 422 S.W.3d 809,                         814 (Tex.App.-

Dallas 2014, no pet.).



                                                      (7)
APPLYING           THE    FOUR       SHUFFIELD       FACTORS          TO    THE    ISSUE   HERE



         When        the        four        Shuffield           factors           are applied here,        it   is

certain            that the trial court abused its discretion by overruling

Ford's         objection              to     the     jury           view.    While it may be said that

the jury view was probative of                                the conditions of the two vehicles

some         [three]           years and two months [after] the accident. However,

that         does        not     translate into probativeness of any trial issue.

According            to        the     Notice of Intent,                   the State's reasons for the

view         was     that        it        was "highly probative of crash dynamics, and

no     physical            pictures           were        available [showing]               the vehicles as

they         would        have        been positioned heading into the impact." (CR,

114) .

         The        actual           reason for the jury view was to permit the jury

to     look         at     the        vehicles           in     their post-crash state. This was

not      the        actual       condition          of    the       vehicles       after   the    crash.   Post-


damage         was        inflicted           on . the          vehicles in order to removed the

deceased            in     one        vehicle.           That        can    be seen    in State's      Exhibit

17,      a     color           photo of the vehicles at the site of the accident.

However,            the        view        of the hulks             "in the flesh"         had the tendency

(and         indeed,           did)        indelibly impress upon the jury the violence

necessary            to        achieve        the        damage. This tendency was irrational

because [what] the jury saw was not the actual immediate results,

or     the         [pre]-crash              vehicles. The results were available in the

in the form of the multiple photographs already in evidence.

         Finally,              the     record        is        silent        on how long the jury view

took,         and        there        is no way to apply the [third] element in this

                                                              (8)
case.        Certainly, the State had no need at all for the jury view.

Sergeant           foulkes     described        the actual crash dynamics at length

and     in     remarkable          detail.      (RR    3, 77-88). His expertly scaled

diagram        and     the     various        photographs   of the aftermath spoke a

volume        to     crash     dynamics. The staged jury view simply did not.

The     trial        court     erred     in     overruling the defense objection to

the jury view.

                                            Conclusion


        The Shuffield             factors      weigh   heavily in favor of Ford.      The

error        argued     above was non-constitutional.           Therefore,    the error

is     reversible        only       if this Court determines that Ford's rights

were     substantially            effected.       TEX.R.APP.PRO.   44.2(b).     It    can

reasonably concluded that the jury view had a substantial,                       indeed

overwhelming influence,                because the jury's setencing was assessed

at     LIFE.       The unnecessary jury view of the [gruesome],emotionally

charged remains of the two vehicles clearly,                     indelibly insinuated

itself into the minds of the jurors and substantially contributed

to     the     verdict       of     LIFE.     This judgment must be reversed and a

new     punishment           trial should be ordered.        TEX.CODE CRIM.PRO.      art.

44.29(b).




                                                 (9)
                               PRAYER



     Ford respectfully requests this Court to grant this PDR.



                                     Respectfully submitt



                                     Frances R. Ford, Appellant pro se
                                     TDCJ-CID # 01916749 / Crain Unit
                                     1401 State School Rd.,
                                     Gatesville, TX 76599




                       Certificate   of   Service



     I hereby certify that I have mailed a carbon copy of the

above PDR to the parties noted in the Parties and Counsel,           by

placing the same in the United States Mail,         first-class post

age prepaid,   on this the 29th day of June,    2015.



                                               *^^A
                                     Frances R.      Ford,   Appellant




                                (10)
                   APPENDIX   A.


            COURT OF   APPEALS"    OPINION


FORD v. STATE, No. 04-14-00025-CR,(April 1, 2015)
                               Jfourtij Court of Appeal*
                                      H>an Antonio, GTexag

                                 MEMORANDUM OPINION

                                         No. 04-14-00025-CR


                                       Frances Rosalez FORD,
                                              Appellant

                                                  v.



                                        The STATE of Texas,
                                             Appellee

                     From the 227th Judicial District Court, Bexar County, Texas
                                     Trial Court No. 2011CR2986
                               Honorable Dick Alcala, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: April 1, 2015

AFFIRMED AS MODIFIED


           Frances Rosalez Ford pled guilty to the charge of felony murder and was sentenced to life

imprisonment. On appeal, Ford contends the trial court erred in allowing a jury view of the

vehicles involved in the automobile collision resulting in the complainant's death. Ford also

challenges the assessment of attorney's fees against her. We modify the judgment to delete the

assessment of attorney's fees, and we affirm the judgment as modified.
                                                                                                  04-14-00025-CR



                                                Background


        Ford was driving the wrong way on the northbound lanes of a highway when she collided

with a vehicle driven by Lawrence Belcher. Belcher died at the scene. Ford was taken to the

hospital. The blood sample drawn by the hospital showed Ford's blood alcohol content to be .279,

while the sample drawn three hours later at the request of law enforcement showed her blood

alcohol content to be .19. Because Ford had two prior DWI convictions, she was charged with

felony murder, with the third DWI being the underlying felony.1 Ford pled guilty, and a jury

assessed Ford's sentence at life imprisonment. Ford appeals.

                                   Jury View and Unfair Prejudice


        In her first two issues, Ford contends the trial court erred in allowing the jury to view the

vehicles involved in the collision. At trial, Ford objected to the jury view on two grounds: (1) the

jury view was unduly prejudicial; and (2) the vehicles had been at the impound lot for three years

and their condition had changed. The State responded the photographs taken at the scene did not

adequately show the damage to the vehicles, and the jury needed to view the manner in which the

vehicles were positioned at the time of the collision to understand "how the impact happened."

The State explained the vehicles separated after impact, so their position at the time of impact was

not shown in the photographs taken at the scene. The State further explained the vehicles would

be brought to the courthouse, and little time would be needed for the jury view. The State did not

anticipate any questions being asked while the jury viewed the vehicles, but the jury would quickly

walk around the vehicles to view the damage. The State argued it would not be "unduly prejudicial




1 A person commits the offense of felony murder if he commits or attempts to commit a felony, other than
manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the
commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death
of an individual. Tex. Penal Code Ann. § 19.02(b)(3) (West 2011).

                                                       -2-
                                                                                      04-14-00025-CR



to see what type of damage was actually caused — that caused this individual to be killed." The

trial court overruled Ford's objections.

        1.     Jury View During Trial

        After several other witnesses who saw Ford driving or the resulting collision testified,

Sergeant Scott Foulke testified regarding the steps taken during the investigation ofthe scene, and

a diagram was introduced into evidence showing the area in which the impact was determined to

have occurred and the location of the vehicles after the collision. The investigation did not show

that either of the vehicles braked prior to impact. Sergeant Foulke stated that the car traveling

north would have reduced visibility because of a hill and a curve. Sergeant Foulke estimated that

the car traveling in the right direction would have had approximately 2.8 to 3.2 seconds to react.

The State then approached the bench and requested the jury view. The trial court instructed the

jury:

        THE COURT: All right. Okay.
                 Members of the jury, at this time, we're going to take you outside. The
        bailiffs — you are to follow them and stay with them at all times to do what's called
        a jury view of the vehicles.
               During that time, you are to observe the vehicles once we get outside.
        You're not to converse or comment at all with each other or with anyone else for
        that matter while you're doing that. Just make your view. Don't — don't touch
        anything. Just view it. And when you've completed that, then you'll be brought
        back in.


        2.     Jury View

        "[T]he question of whether to grant or deny a request for a jury view rests 'within the trial

court's [sound] discretion.'" Mauricio v. State, 153 S.W.3d 389, 393 (Tex. Crim. App. 2005)

(quoting Jones v. State, 843 S.W.2d 487, 499 (Tex. Crim. App. 1992)). A trial court abuses its

discretion if it acts without reference to any guiding rules or principles. Lylesv. State, 850 S.W.2d

497, 502 (Tex. Crim. App. 1993); Reyes v. State, 21A S.W.3d 724, 729 (Tex. App.—San Antonio



                                                -3-
                                                                                         04-14-00025-CR



2008, pet. ref d). A trial court does not abuse its discretion unless its ruling "falls outside the zone

of reasonable disagreement." Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002).

        In exercising its discretion to grant or deny a request for a jury view, the trial court must

consider the totality of the circumstances of the case, including, but not limited to: (1) the timing

of the request for the jury view; (2) the difficulty and expense of arranging it; (3) the importance

of the information to be gained by it; (4) the extent to which that information has been or could be

secured from more convenient sources {e.g., photographs, videotapes, maps, or diagrams); and (5)

the extent to which the place or object to be viewed may have changed in appearance since the

controversy began.    Mauricio, 153 S.W.3d at 393.         In addition, the trial court must provide

opposing counsel an opportunity to be heard on the question. Id.

        With regard to the timing of the request, the State filed a notice of its intent to have the jury

view evidence outside the courtroom on December 10, 2013.                Before trial commenced on

December 17, 2013, the trial court considered and granted the State's motion. Therefore, the

record reflects that the request for the jury view was made in a timely fashion. In addition, the

vehicles were brought to the courthouse; therefore, the arranging ofthe jury view was not difficult,

and the trial court could have concluded the jury view would be quick. In responding to defense

counsel's objections, the State explained the importance of the information to be gained, asserting

the photographs taken at the scene did not adequately show the damage to the vehicles or the

manner in which the vehicles collided. Finally, although defense counsel asserted the vehicles had

been at the impound lot for three years, defense counsel did not establish that the condition of the

vehicles had changed other than with regard to possible dust and fingerprints. Accordingly, based

on the record presented, we cannot conclude the trial court abused its discretion in granting the

jury view.



                                                  -4-
                                                                                       04-14-00025-CR



       3.      Unfair Prejudice

       Ford also objected that the jury view would be unduly prejudicial. The State contends this

court should not consider whether the jury view should be excluded under Rule 403 as a separate

issue; however, the State cites no support for its contention. In the Houston court's decision in

Mauricio, the appellant also raised a Rule 403 issue. See Mauricio v. State, 104 S.W.3d 919, 920

n.l (Tex. App.—Houston [14th Dist.] 2003), aff'd, 153 S.W.3d 389 (2005). The Houston court

explained that it was not addressing the Rule 403 issue because it was not adequately briefed. Id.

Because we are not convinced that a Rule 403 objection to a jury view cannot be made in addition

to an objection based on the law regarding jury views, we address Ford's issue.

       Rule 403 of the Texas Rules of Evidence provides, in pertinent part, "Although relevant,

evidence may be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice." Tex. R. Evid. 403. In conducting a Rule 403 analysis, the following factors are

considered: (1) the probative value of the evidence; (2) the potential to impress the jury in some

irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent's

need for the evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004). "Evidence

is unfairly prejudicial when it has 'an undue tendency to suggest that a decision be made on an

improper basis.'" Pawlak v. State, 420 S.W.3d 807, 809 (Tex. Crim. App. 2013) (quoting

Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (op. on reh'g)). "All evidence

is prejudicial to one party or the other — it is only when there is clear disparity between the degree

of prejudice of the offered evidence and its probative value that Rule 403 is applicable."

Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012). Similar to a trial court's ruling

on jury views, we review a trial court's ruling under Rule 403 for an abuse of discretion. Pawlak,

420S.W.3dat810.




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       As discussed in reviewing the jury view issue, the probative value ofthe evidence was that

it showed the actual damage to the vehicles and the manner in which the vehicles collided.

Although photographs of the vehicles at the scene were introduced into evidence, the photographs

were dark, and the positioning of the vehicles in the photographs made it difficult to visualize the

manner in which the two vehicles collided. Similarly, although the diagram showed the area of

impact and location of the vehicles after impact, the State wanted the jury to view the vehicles as

they were positioned at impact to understand the nature of the collision and the resulting damage.

Although the record does not reflect the exact amount oftime it took to conduct the jury view, the

vehicles were brought to the courthouse, and the trial court's admonishments made it clear that the

jury view would be quickly completed. Finally, with regard to the potential to impress the jury in

some irrational, yet indelible, way, Ford argues in her briefthat "the view ofthe hulks 'in the flesh'

had the tendency to indelibly impress the jury on the violence necessary to achieve the damage."

The photographs and testimony that were admitted into evidence, however, should already have

impressed upon the jury the violent nature ofthe collision. Viewing the positioning ofthe vehicles

would only enable the jury to visualize the manner in which they impacted. Accordingly, having

considered the Rule 403 factors, we cannot conclude the trial court abused its discretion in

overruling Ford's Rule 403 objection.

       4.      Harmless Error


       Even if we are incorrect in holding the trial court did not abuse its discretion in allowing

the jury view, any error in allowing the jury view would not require a reversal unless it affected

Ford's substantial rights. Tex. R. App. P. 44.2. "A substantial right is affectedwhen the error had

a substantialand injurious effect or influence in determining the jury's verdict." Cole v. State, 330

S.W.3d 253, 280 (Tex. Crim. App. 2010). In conducting this harm analysis, we consider

"everything in the record" including other testimony and evidence before the jury and "the
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character of the alleged error and how it might be considered in connection with other evidence in

the case." Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). This court will not

overturn Ford's conviction for non-constitutional error ifthis court, "after examining the record as

a whole, has fair assurance that the error did not influence the jury, or had but a slight effect."

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

        In addition to the evidence that Ford was driving the wrong way down the highway and

subsequent testing showed her blood alcohol content to be .279, far over the legal limit of 0.08,

the jury also heard the testimony of a truck driver who paced Ford's vehicle as he traveled in the

southbound lanes, honking his air horn and flashing his lights in an effort to get Ford's attention

for over three miles. Furthermore, the jury heard evidence that Ford was arrested for a first DWI

in February of 2008. Although Ford could have been convicted of a felony because her ten-year-

old daughter was in the vehicle, she was convicted only of a misdemeanor and placed on probation

in March of 2009. In June of 2008, Ford was arrested for a second DWI, and was also placed on

probation for that offense in August of 2010. Two months later, in October of 2010, she caused

the fatal collision that resulted in Belcher's death.


        In addition to the foregoing evidence, the jury also heard Ford's own testimony. Ford

testified that she only had one drink that night and believed someone placed a drug in her drink;

however, the toxicology results did not support her belief. Ford testified she was not aware the

trial court previously ordered her not to drive and offered a series of excuses for the reason her

vehicle did not contain the ignition interlock system the court previously ordered. Because the

jury heard evidence that Belcher had a blood alcohol level of .13, Ford was asked if she believed

the alcohol in Belcher's system contributed to the accident, and she responded that she did although

she did not blame Belcher for the accident. Ford also testified that although she was driving the

wrong way, she believed she was "driving right." Because Ford stated she was requesting
                                                                                      04-14-00025-CR



leniency, the prosecutor asked, "Ms. Ford, do you acknowledge that you've already been shown

leniency [with regard to the two prior DWI convictions]?" Ford responded, "No."

       Having examined the record as a whole, even if we assume the trial court abused its

discretion in allowing the jury view, we have "fair assurance that the error did not influence the

jury, or had but a slight effect." Johnson, 967 S.W.2d at 417. Accordingly, any error by the trial

court in allowing the jury view was harmless.

                                        Attorney's Fees


       In her third issue, Ford contends the evidence is legally insufficient to support the trial

court's assessment of attorney's fees against her, noting the record reflects that she had appointed

counsel at trial and on appeal. See Vogt v. State, 421 S.W.3d 233, 246 (Tex. App.—San Antonio

2013, pet. ref d); Smith v. State, 421 S.W.3d 161, 165 (Tex. App.—San Antonio 2013, no pet.)

The State concedes the attorney's fees were improperly assessed. Accordingly, Ford's third issue

is sustained, and the trial court's judgment is modified to delete the assessment of attorney's fees.

                                            Conclusion


       The trial court's judgment is modified to delete the assessment of attorney's fees. The trial

court's judgment is affirmed as modified.

                                                  Marialyn Barnard, Justice

DO NOT PUBLISH




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