      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-15-00328-CR



                               Daniel Lorenzo Wilson, Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
          NO. 72334, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                            MEMORANDUM OPINION


               After Daniel Lorenzo Wilson pleaded guilty to murder, the trial court held a non-jury

punishment hearing and assessed punishment at life in prison. Wilson contends that the trial court

abused its discretion by admitting photographs from the crime scene that were unfairly prejudicial.

We will affirm the judgment.

               In his guilty plea, Wilson admitted that he murdered Karen Edwards. At the

punishment phase, a witness described in detail Wilson’s actions in committing the murder. She

testified that Wilson shot Edwards in the leg, then would not let her leave the home. Thirty minutes

later, he shot her in the stomach, but would not let her call her family. When Edwards tried to

escape, he shot her in the head. She was still breathing, so he hit her in the face with a flashlight

repeatedly, causing brain matter and skin to fly. When Wilson saw that Edwards was still breathing,

he stepped on her neck, grabbed a sword off of a table, and started chopping downwards. He told
the witness to “get this trash out of my house”—referring to Edwards—and warned that if the

witness did not comply with his demands, he would kill her, too. He pointed the gun at the witness

and pulled the trigger, but it was out of bullets. He also ordered her to clean up the crime scene. She

complied, then drank some beer, took his gun, smoked marijuana, and used cocaine. She then

changed clothes and called the police.

               Over Wilson’s objection, the trial court admitted photographs of the crime scene and

the victim. On appeal, Wilson complains specifically about the pictures of the bloodied murder

weapons, the bloody sidewalk, the television with blood and skin and brain matter on it, and a

closeup of Edwards’s face and chest. He contends that the witness had already described the scene

sufficiently that the pictures were unnecessary and that their probative value was substantially

outweighed by the danger of unfair prejudice.

               We review a trial court’s ruling on the admission of evidence under an

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

Hernandez v. State, 390 S.W.3d 310, 323-24 (Tex. Crim. App. 2012). A punishment trial is the

mechanism for the court or jury to assess the moral blameworthiness of a defendant. Rodriguez

v. State, 203 S.W.3d 837, 842 (Tex. Crim. App. 2006). In a non-capital felony trial, evidence is

admissible during the punishment phase if “the court deems [it] relevant to sentencing.” Hayden

v. State, 296 S.W.3d 549, 552 (Tex. Crim. App. 2009). “Probative value” refers to how much more

or less probable a piece of evidence makes the existence of a consequential fact coupled with the

proponent’s need for that item of evidence. Hernandez, 390 S.W.3d at 323. Unlike the guilt phase,

where the factfinder must decide discrete factual issues, deciding what punishment to impose is a



                                                  2
“normative process, not intrinsically factbound,” so what is “relevant” to assessing punishment is

“a function of policy rather than relevancy.” Id. Evidence is relevant to punishment if it helps the

factfinder decide what sentence is appropriate for a particular defendant given the facts of the case.

Id. Evidence of the “circumstances of the offense” is admissible during the punishment phase.

Tex. Code Crim. Proc. art. 37.07, § 3(a)(1). The circumstances of the offense include the extent of

a victim’s injuries “so long as a factfinder may rationally attribute moral culpability to the accused

for that injury.” Miller-El v. State, 782 S.W.2d 892, 896 (Tex. Crim. App. 1990).

               Relevant evidence may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice from its admission. See Tex. R. Evid. 403. A trial court doing a

Rule 403 analysis 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). These

factors may blend in practice. Id. at 642. Unfair prejudice refers to the tendency for decisions to be

made on an improper basis such as emotion. Id. at 323-24. The fact that the punishment phase was

before the court and not a jury reduces the risk of unfair prejudice. See Corley v. State, 987 S.W.2d

615, 621 (Tex. App.—Austin 1999, no pet.).




                                                  3
               The photographs showed the extent of the injuries Wilson inflicted on Edwards. They

reinforced the testimony, but photographs can be a more objective sort of evidence than a layperson’s

account of her memory of a traumatic event that she experienced, especially such as here where the

witness was under both duress and potentially the influence of mind-altering substances. The State

did not need the photographs to prove the crime, but the court rationally decided that seeing

the photographs would help it assess the proper punishment. The brutality of the assault is a suitable

basis on which to gauge the “moral blameworthiness” of the defendant and the appropriate

punishment. As such, the trial court’s review of the photographs did not tend to cause the court

to decide punishment on an improper basis. The reporter’s record indicates that the presentation of

the photographs did not take much time. We cannot say that the probative value of the evidence

was substantially outweighed by the risk of unfair prejudice, nor can we say that the trial court

abused its discretion by admitting the photographs of the crime scene at the punishment phase of a

bench trial.

               We affirm the judgment.




                                               Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Pemberton and Field

Affirmed

Filed: November 18, 2015

Do Not Publish



                                                  4
