                                            OPINION
                                        No. 04-10-00277-CR

                                          Charles REESE,
                                             Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the 437th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2009-CR-5816
                           Honorable Lori I. Valenzuela, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: March 16, 2011

AFFIRMED

           Appellant, Charles Reese, was indicted for the murder of his wife, Shanika Sanford. The

indictment was enhanced with a prior conviction for felon in possession of a firearm. A jury

found appellant guilty and assessed punishment at life in prison and a $5000 fine. We affirm.

                                   FACTUAL BACKGROUND

           On the evening of March 9, 2009, appellant’s cousin, Richard Chew, a friend of Chew’s,

appellant, and appellant’s wife, Shanika Sanford, all spent the night at Chew’s apartment. The
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next morning, Chew left to take his friend home, leaving appellant and Sanford behind in his

apartment. Chew said appellant and Sanford got along the previous evening, but when he

returned to his apartment on March 10th, appellant and Sanford were calling each other names.

The name-calling escalated to a physical confrontation. Chew witnessed appellant and Sanford

“wrestling and grabbing, [and] bouncing off walls” and hitting each other. He also saw appellant

kick Sanford. When asked about Sanford’s demeanor during the fight, Chew said she was crying

and she “was just like, you know, I’m going to get you locked up.” Chew said appellant’s

reaction was “I aint’t going to jail over you.”

       The trio then walked outside to take Sanford to her home. Chew got into the driver’s seat

of his truck, appellant got into the front passenger seat, but Sanford began to walk away from the

truck. Chew testified appellant said, “Shit, I’m fixing to do her . . . I’m about to kill her,” then he

pulled out a gun, exited the truck, and walked toward Sanford. Chew described Sanford’s

reaction to seeing appellant with the gun as “She backed up, . . . [and] she raised her hands.”

Chew testified that Sanford said “stop” and “I’m going to send you to jail.” Chew testified

appellant shot Sanford, Sanford fell to the ground, and appellant continued to shoot at her.

               PHOTOGRAPHS OF THE VICTIM AFTER THE SHOOTING

       On appeal, appellant asserts the trial court erred by admitting into evidence several

photographs of Sanford at the scene of the murder.

       We review a trial court’s ruling on the admissibility of a photograph for an abuse of

discretion. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007). “A visual image of the

injuries [a defendant] inflicted on the victim is evidence that is relevant to the jury’s

determination.” Id. However, relevant evidence must be excluded when its probative value “is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading



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the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.”

TEX. R. EVID. 403.      Rule 403 favors the admission of relevant evidence and carries a

presumption that relevant evidence will be more probative than prejudicial. Gallo, 239 S.W.3d

at 762. The following, non-exclusive factors should be considered when making a Rule 403

analysis: “(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).

         When determining whether to admit or exclude photographic evidence of a victim’s

injuries, a court may also consider: (1) the number of photographs; (2) their size; (3) whether

they are black and white or color; (4) their gruesomeness; (5) whether any bodies depicted are

clothed or naked; and (6) whether any bodies depicted have been altered by autopsy. Erazo, 144

S.W.3d at 489.      Visual evidence accompanying oral testimony is not cumulative or of

insignificant probative value.     See Chamberlain, 998 S.W.2d at 237 (“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.”); Williams

v. State, 937 S.W.2d 479, 487 (Tex. Crim. App. 1996) (photographs of a murder victim may be

admissible to show the manner and means of death, even if they merely corroborate other kinds

of evidence). Also, that a relevant picture is gruesome does not alone require its exclusion from

evidence. See Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995) (en banc). After

independently evaluating all of these factors, we will reverse a trial court’s admission of

photographic evidence only when the probative value of the evidence is small and its




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inflammatory potential is great. Ramirez v. State, 815 S.W.2d 636, 647 (Tex. Crim. App. 1991)

(en banc).

       Appellant objected to five of the photographs showing Sanford’s lifeless body at the

crime scene, which were Exhibits 17–21. Only two of the photographs might be considered

close-ups. None are autopsy photos. Each photograph shows Sanford’s body from a different

angle, illustrating the manner and direction from which she was shot. Exhibit 17 is taken from

an angle slightly above and to the left of Sanford’s body. Exhibit 18 shows an entry or exit

wound on the right side of her face. Exhibit 19 shows a bullet wound to her left cheek. Exhibit

20 is a photograph of Sanford positioned on her left side, illustrating bullet wounds to her right

shoulder and back.    Exhibit 21 shows bullet wounds to Sanford’s neck and back.              These

photographs corroborate the testimony of both the responding officer and the pathologist as to

the location and manner of the crime.      After reviewing the photographs, we conclude the

photographs are not so gruesome that they would “impress the jury in some irrational, yet

indelible, way.” See Erazo, 144 S.W.3d at 489.

       As to the victim’s state of dress in the photographs, because Sanford was wearing a short

dress at the time of her murder, her underwear is partially visible in one of the photographs.

Appellant argues that because the photograph “draws attention to [Sanford’s] skimpy clothing,

. . . [it] suggests that the victim suffered sexual assault as well.” We disagree. The photograph

in Exhibit 17 is taken from an angle above and to the side of Sanford’s body and does not

emphasize or enhance the view of her underwear, which is only barely visible in the wide-angle

shot. The photograph itself does not indicate Sanford was sexually assaulted, nor did the State

present any evidence at trial suggesting a sexual assault took place. Thus, we conclude the

photographs were not unduly inflammatory in their depiction of the victim’s state of dress.



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       We cannot say the probative value of the objected-to photographs was substantially

outweighed by the danger of unfair prejudice or that they misled the jury. Therefore, the trial

court did not abuse its discretion by admitting the photographs into evidence.

                             SUDDEN PASSION INSTRUCTION

       Appellant asserts the trial court erred by denying his request for a sudden passion charge

during the punishment phase of trial. During the punishment phase, a defendant may attempt to

mitigate his punishment by raising the issue as to whether “he caused the death under the

immediate influence of sudden passion arising from an adequate cause.” TEX. PENAL CODE

ANN. § 19.02(d) (West 2003). Before a defendant is allowed a sudden passion instruction, there

must be some evidence “that there was an adequate provocation, that a passion or an emotion

such as fear, terror, anger, rage, or resentment existed, that the homicide occurred while the

passion still existed and before there was reasonable opportunity for the passion to cool; and that

there was a causal connection between the provocation, the passion, and the homicide.”

McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005); see also TEX. PENAL CODE

ANN. § 19.02(a)(1), (2) (West 2003). A “sudden passion charge should be given if there is some

evidence to support it, even if that evidence is weak, impeached, contradicted, or unbelievable.

Trevino v. State, 100 S.W.3d 232, 238 (Tex. Crim. App. 2003). But the evidence “cannot be so

weak, contested, or incredible that it could not support such a finding by a rational jury.”

McKinney, 179 S.W.3d at 569.

       During his videotaped interrogation, appellant said that when they were outside, Sanford

refused to get into Chew’s truck, saying “I got you now,” which appellant believed meant she

would turn him into the police. Appellant said he continued to shoot Sanford after she fell to the

ground because he did not want her to suffer by living with the fact that the man she loved had



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shot her. On appeal, appellant contends this “betray[al of] their marriage” provoked him into

shooting her. Appellant argues he was entitled to a sudden passion instruction because he acted

immediately upon Sanford’s provocation of refusing to get into Chew’s truck and threatening

him with jail.

       We cannot agree with appellant’s characterization of Sanford’s actions as such a betrayal

of their marriage as to cause him to lose control. “Adequate cause” is “cause that would

commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper,

sufficient to render the mind incapable of cool reflection.” TEX. PENAL CODE ANN. § 19.02(a)(1)

(West 2003). Even if Sanford’s actions and words provoked appellant’s anger, his reaction of

shooting her to death was not triggered by “adequate cause.” We believe shooting Sanford after

she walked away from the truck and then backed away from appellant with her hands raised

when he approached her with the gun is not an objectively common response in an ordinary,

reasonable person. Neither is shooting her several more times because appellant did not want

Sanford to suffer by living with the fact that the man she loved had shot her. Therefore, the trial

court did not err in denying appellant a sudden passion instruction.

                             PUNISHMENT PHASE EVIDENCE

       At the beginning of the punishment phase of trial, the State failed to read the

enhancement allegation regarding a January 2004 conviction contained in the indictment;

therefore, appellant did not enter a plea on the allegation. Nevertheless, testimony from Robert

Jimenez, who is the Records Identification Supervisor in the Bexar County Sheriff’s Office, and

the pen packet regarding appellant’s January 2004 felon in possession of a firearm conviction

were admitted into evidence. In addition to Jimenez’s testimony, the jury also heard from two

other witnesses: (1) Sanford’s grandmother who testified about Sanford’s relationship with



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appellant, and (2) a San Antonio police officer who testified about a January 2009 domestic

violence call during which he interviewed Sanford.

       The next day the State realized it had not read the enhancement allegation, and the

prosecutor asked the trial court to properly arraign appellant on the January 2004 felon in

possession of a firearm enhancement allegation. The trial court did so, but told the State it would

need to reoffer its evidence on the enhancement unless appellant stipulated to the evidence.

Appellant pled not true to the enhancement allegation and refused to stipulate. The State

reoffered to the bench the prior testimony of Sanford’s grandmother and the police officer. The

State also recalled Jimenez, who testified again before the jury regarding appellant’s prior felon

in possession of a firearm conviction. Finally, the State reoffered the exhibits relating to the

prior conviction.

       On appeal, appellant raises several complaints. First, appellant contends the trial court

should have instructed the jury to disregard all the testimony and evidence heard prior to the

reading of the enhancement allegation. Appellant cites to no authority for this argument and we

find no statute or case law requiring such an instruction. Even if such an instruction was

appropriate, appellant did not request one of the trial court. Therefore, we conclude the trial

court did not err by failing to give such an instruction.

       Appellant next asserts that because he refused to stipulate to any testimony or evidence

offered prior to the reading of the indictment, the State was required to re-offer all such

testimony and evidence. We disagree. The Texas Code of Criminal Procedure requires the

prosecuting attorney to read the indictment to the jury. TEX. CODE CRIM. PROC. ANN. art.

36.01(a)(1) (West 2007). “When prior convictions are alleged for purposes of enhancement only

and are not jurisdictional, that portion of the indictment or information reciting such convictions



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shall not be read until the hearing on punishment is held as provided in Article 37.07.” Id.

Reading the enhancement paragraph at the punishment phase in a bifurcated trial, such as here, is

mandatory; however, the failure to do so may be cured. Turner v. State, 897 S.W.2d 786, 788

(Tex. Crim. App. 1995) (en banc); Warren v. State, 693 S.W.2d 414, 416 (Tex. Crim. App.

1985) (en banc). “The procedure to be followed has been long established: upon learning of the

error, the indictment is read to the jury, the accused enters a plea and the State reintroduces the

evidence; or the parties may stipulate to the evidence.” Warren, 693 S.W.2d at 416.

       The requirement that enhancement allegations be read to the jury joins the issue on which

to enhance punishment. See Ex parte Sewell, 742 S.W.2d 393, 395 (Tex. Crim. App. 1987) (en

banc) (“Without the reading of that part of the charging instrument that contains the

enhancement allegations, and the entering of a plea thereto, no issue is joined upon which to

enhance the punishment.”). Here, when appellant pled not true to the single enhancement he

joined issue with the State as to that allegation. Because appellant refused to stipulate to the

evidence, it then became incumbent upon the State to prove what it had alleged. See id. at 396.

Therefore, we conclude the State was not required to re-offer all evidence heard before the

reading of the enhancement allegation; but was, instead, required to re-offer only the evidence

relevant to the enhancement, which it did by recalling Jimenez who re-authenticated the exhibits

related to appellant’s January 2004 conviction.

                                        CONCLUSION

       We overrule appellant’s issues on appeal and affirm the trial court’s judgment.


                                                   Sandee Bryan Marion, Justice

PUBLISH




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