                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-08-00366-CR

BEVERLY LATIMER,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                           From the 13th District Court
                             Navarro County, Texas
                              Trial Court No. 31,022


                                    OPINION


      Beverly Latimer was convicted by a jury of capital murder and automatically

received a sentence of imprisonment for life without the possibility of parole. TEX. PEN.

CODE ANN. §§ 19.03; 12.31 (Vernon 2005). Latimer complains that the trial court erred

by denying her motion for continuance, by allowing expert testimony, by admitting

prejudicial photographs, by allowing the testimony of a witness, and that the evidence

was both legally and factually insufficient for the jury to have found her guilty of

capital murder. Because we find no abuse of discretion regarding the continuance, the

expert testimony, or the admission of photographs, that the issue regarding the witness
testimony was waived, and that the evidence was legally and factually sufficient, we

affirm the judgment of the trial court.

Motion for Continuance

        We review a trial court’s ruling on a motion for continuance for abuse of

discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007); Janecka v. State, 937

S.W.2d 456, 468 (Tex. Crim. App. 1996). To establish an abuse of discretion, there must

be a showing that the defendant was actually prejudiced by the denial of his or her

motion. Gallo, 239 S.W.3d at 764; Janecka, 937 S.W.2d at 468. A bare assertion that

counsel did not have adequate time to prepare for trial is not sufficient proof of

prejudice. See Renteria v. State, 206 S.W.3d 689, 702 (Tex. Crim. App. 2006); Heiselbetz v.

State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995).

        Latimer personally filed a hand-written motion for continuance on September 5,

2008, after the start of jury selection. Her motion stated that she did not feel that her

attorneys were ready because they had not had adequate time to review their expert’s

report that had been received on September 1, 2008, because her attorneys had been

advising her that they needed three to four weeks to review the report when received.

It is apparent that Latimer’s attorneys had difficulty in receiving necessary items for

testing from the forensic laboratory and a medical center that had those items in their

custody or control, and those items were not fully received until sometime in August of

2008. We note, however, that they did not first request those items until March of 2008,

which was approximately a year and a half after Latimer’s arrest. Additionally, at the



Latimer v. State                                                                       Page 2
hearing on the motion for continuance, Latimer’s attorneys did not request more time to

prepare, but allowed Latimer to testify as to why she felt a continuance was needed.

        During the trial, Latimer’s attorneys cross-examined the State’s witnesses

vigorously and Latimer’s own expert testified at trial beginning on September 16, 2008.

They did, however, for the first time, list things they would have done if given more

time at the motion for new trial hearing. The record does not demonstrate that Latimer

was prejudiced by the denial of her motion. The trial court did not abuse its discretion

in denying Latimer's motion. We overrule issue one.

Expert Witness Testimony

        Latimer complains that the trial court erred by allowing Dr. Jayme Coffman, an

expert for the State, to testify as to the cause of death of the child because she was not an

expert in the field of pathology. Dr. Coffman had been the medical director at Cook

Children’s Medical Center since January of 2000. She was board certified in pediatrics

in 1991, and had extensive experience in dealing with child abuse victims on a daily

basis, some of whom had died as a result of their injuries. She testified as to her

methodology for determining whether a particular injury was the result of abuse or

maltreatment, which included interviews with all relevant people and a review of any

internal testing conducted, including CT’s, MRI’s, and skeletal surveys.           She had

extensive training and attended many seminars and would read any literature available

on the subject of child abuse. She had also studied autopsies and literature regarding

autopsies. If she had a child patient who died, she would follow through and speak

with the medical examiner, and conduct a fatality review. Dr. Coffman had seen many

Latimer v. State                                                                       Page 3
autopsies with similar injuries as to those of the child in this case, and was experienced

in interpreting pictures and autopsy reports.

          Dr. Coffman testified that she had spoken with the medical examiner several

times, had reviewed the autopsy report and photographs, reviewed all of the medical

records including those from prior injuries, and reviewed all of the foster care and

historical documentation regarding the child’s psychological and developmental health.

          We review the admission of expert testimony for an abuse of discretion. Joiner v.

State, 825 S.W.2d 701, 708 (Tex. Crim. App. 1992). Rule 702 of the Texas Rules of

Evidence governs the admission of expert testimony. See TEX. R. EVID. 702. Rule 702

states,

          If scientific, technical, or other specialized knowledge will assist the trier
          of fact to understand the evidence or to determine a fact in issue, a witness
          qualified as an expert by knowledge, skill, experience, training, or
          education may testify thereto in the form of an opinion or otherwise.

TEX. R. EVID. 702.

          Thus, before admitting expert testimony under Rule 702, the trial court must be

satisfied that three conditions are met: (1) the witness qualifies as an expert by reason

of his or her knowledge, skill, experience, training, or education; (2) the subject matter

of the testimony is an appropriate one for expert testimony; and (3) admitting the expert

testimony will actually assist the fact-finder in deciding the case. Rodgers v. State, 205

S.W.3d 525, 527 (Tex. Crim. App. 2006) (citing Alvarado v. State, 912 S.W.2d 199, 215-16

(Tex. Crim. App. 1995).




Latimer v. State                                                                           Page 4
        Because the possible spectrum of education, skill, and training is so wide, a trial

court has great discretion in determining whether a witness possesses sufficient

qualifications to assist the jury as an expert on a specific topic in a particular case. See

Joiner v. State, 825 S.W.2d 701, 708 (Tex. Crim. App. 1992); Steve v. State, 614 S.W.2d 137,

139 (Tex. Crim. App. 1981).       For this reason, we rarely disturb the trial court's

determination that a specific witness is or is not qualified to testify as an expert. Wyatt

v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000) ("The question of whether a witness

offered as an expert possesses the required qualifications rests largely in the trial court's

discretion. Absent a clear abuse of that discretion, the trial court's decision to admit or

exclude testimony will not be disturbed."). We do not find that based on Dr. Coffman’s

qualifications that the trial court abused its discretion by allowing the testimony. We

overrule issue two.

Admission of Evidence

        Latimer complains that the trial court erred by admitting two photographs of the

child taken after he was deceased because their prejudicial value substantially

outweighed their probative value. See TEX. R. EVID. 403. We review the admission of

evidence for an abuse of discretion. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App.

2007); Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2004); Paredes v. State, 129

S.W.3d 530, 539 (Tex. Crim. App. 2004).

        As a general rule, a photograph is admissible if verbal testimony regarding what

is depicted in the photograph is also admissible and the probative value of the

photograph is not substantially outweighed by any of the factors we use in a rule 403

Latimer v. State                                                                       Page 5
analysis. Threadgill v. State, 146 S.W.3d 654, 671 (Tex. Crim. App. 2004); Williams v. State,

958 S.W.2d 186, 195 (Tex. Crim. App. 1997); Long v. State, 823 S.W.2d 259, 271 n.18 (Tex.

Crim. App. 1991). Rule 403 of the rules of evidence favors the admissibility of relevant

evidence, and the presumption is that relevant evidence will be more probative than

prejudicial. Shuffield, 189 S.W.3d at 787; Long, 823 S.W.2d at 271. An abuse of discretion

arises only when the probative value of the photographs is small and its inflammatory

potential is great. Long, 823 S.W.2 at 271.

        In determining whether the trial judge erred in admitting a certain photograph,

we first consider the form, content, and context of the photograph. Erazo v. State, 144

S.W.3d 487, 492 (Tex. Crim. App. 2004); Long, 823 S.W.2d at 271-73 (court should

consider number of exhibits offered; gruesomeness, detail, and size of photographs;

whether photographs are black and white or in color; whether they are close-up;

whether body is naked or clothed; and availability of other means of proof and

circumstances unique to each individual case). We then consider (1) the probative

value of the evidence; (2) the ability of the photograph 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. Shuffield, 189 S.W.3d at 787; Erazo, 144 S.W.3d at

492-96.

        There were fifteen color photographs taken of the child at the hospital after his

death admitted into evidence through one of the responding paramedics. They were

approximately 8” by 11” in size.       Some were close up, some were not.           Latimer

complains of the admission of only two of the photographs.

Latimer v. State                                                                       Page 6
        The complained-of photographs show certain injuries sustained by the victim

and were offered at the end of the State’s direct examination. The first complained-of

photograph depicts the child at the hospital taken shortly after his death with the

child’s eyes open and shows bruising on the child’s body, including his chest and face.

The second complained-of photograph depicts the child after death with his arm

straightened out which shows a slight bruise on the arm and also the child’s face with

his eyes open.

        Although the photographs depict gruesome details, they are no more gruesome

than the facts of this case. See Shuffield, 189 S.W.3d at 788 (photographs only showed

victim’s injuries and were no more gruesome than expected); Sosa v. State, 230 S.W.3d

192, 196 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (prejudice caused by

photographs did not substantially outweigh their probative value; photographs were

no more gruesome than facts of the offense).

        Furthermore, we conclude the photographs provided a necessary visual

component to, and understanding of, the paramedics’ testimony regarding what they

observed regarding the nature and extent of the victim's injuries.          Both of the

responding paramedics testified that the child’s pupils were “blown,” that the child had

bruising on his chest with an unknown origin, and had what was described as a hand

stripe bruise on his arm. These injuries were in addition to the “battle” bruising behind

the child’s ear, the dehydrated appearance of his lips and gums, the multiple areas of

bruising on the child’s head, face, arms, and legs depicted in the other photographs, of

which Latimer does not complain.       The photographs were probative because they

Latimer v. State                                                                   Page 7
showed the full extent and arguably non-accidental nature of a number of those

injuries. See Gallo, 239 S.W.3d at 763; Salazar, 38 S.W.3d at 147-53. Thus, they were

necessary for the State to develop its case.

        When considered in light of the facts of this case, we conclude the autopsy

photographs are not overly prejudicial and did not pose the danger of influencing the

jury in an irrational way. The State spent little time authenticating the photos through

that witness. Accordingly, the trial court did not abuse its discretion by admitting the

autopsy photographs. We overrule issue three.

Admission of Witness Testimony

        Latimer complains that the trial court erred by allowing testimony regarding an

incident that had occurred in a grocery store some time the week before the child’s

death that involved Latimer allegedly requiring the young children, ages approximately

four and five, in the store with her to keep their hands on the grocery cart at all times.

The witness observed Latimer get angry with one child when she took her hands off of

the cart. The child went backward and knocked over some chili.1 Latimer grabbed the

child and the child had to put her hands back on the cart. The child was crying,

although not audibly.         The children kept their hands on the cart throughout their

conversation, which lasted approximately thirty minutes.




1The record is not clear as to what precisely fell over in the testimony, whether it was a display, a single
can, or multiple cans of chili.

Latimer v. State                                                                                     Page 8
         Latimer complains that this testimony was inadmissible because it did not allege

a bad act; that she did not receive the required notice of the extraneous offense or bad

act; and that its probative value was substantially outweighed by its prejudicial effect.

         Latimer does not present any authority relating to her arguments on appeal as to

why the act does not constitute a bad act or why the State’s notice was inadequate. The

sole legal reference in this entire issue is a regurgitation of rule 404(b).       This is

insufficient. In order to properly present an issue to this Court, citations to appropriate

authorities is required. See TEX. R. APP. P. 38.1(h). Therefore, this issue is inadequately

briefed, and therefore, is waived. See Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim.

App. 1996) (“It is incumbent upon appellant to cite specific legal authority and to

provide legal arguments based upon that authority.”). We overrule issue four.

Legal and Factual Sufficiency

         Latimer complains that the evidence was both legally and factually insufficient

for the jury to have found that she caused the death of the child because there was

competing testimony regarding the timing of the head injury or injuries and

inconsistencies in the testimony of certain of the State’s witnesses.

         In reviewing the legal sufficiency of the evidence to support a conviction, we

view all of the evidence in the light most favorable to the prosecution in order to

determine whether any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789, 61 L. Ed. 2d 560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007).    Furthermore, we must consider all the evidence admitted at trial, even

Latimer v. State                                                                     Page 9
improperly admitted evidence, when performing a legal sufficiency review. Clayton,

235 S.W.3d at 778; Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004). The

standard of review is the same for direct and circumstantial evidence cases;

circumstantial evidence is as probative as direct evidence in establishing an actor’s

guilt. Clayton, 235 S.W.3d at 778; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007).

         When reviewing the factual sufficiency of the evidence to support a conviction,

we view all the evidence in a neutral light, favoring neither party. Steadman v. State, 280

S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim.

App. 2006). We then ask whether the evidence supporting the conviction, although

legally sufficient, is nevertheless so weak that the fact-finder’s determination is clearly

wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the fact-finder’s determination is manifestly

unjust. Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at 414-15, 417. To reverse

under the second ground, we must determine, with some objective basis in the record,

that the great weight and preponderance of all the evidence, although legally sufficient,

contradicts the verdict. Watson, 204 S.W.3d at 417.

         Unless we conclude that it is necessary to correct manifest injustice, we must give

due deference to the fact-finder’s determinations, “particularly those determinations

concerning the weight and credibility of the evidence.” Johnson v. State, 23 S.W.3d 1, 9

(Tex. Crim. App. 2000); see Steadman, 280 S.W.3d at 246. Evidence is always factually



Latimer v. State                                                                     Page 10
sufficient when it preponderates in favor of the conviction. Steadman, 280 S.W.3d at 247;

see Watson, 204 S.W.3d at 417.

        In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not enough

that we “harbor a subjective level of reasonable doubt to overturn [the] conviction.”

Watson, 204 S.W.3d at 417. We cannot conclude that a conviction is clearly wrong or

manifestly unjust simply because we would have decided the question differently than

the jury or because we disagree with the jury’s resolution of a conflict in the evidence.

Id. We may not simply substitute our judgment for the fact-finder’s. Johnson, 23 S.W.3d

at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record clearly

reveals that a different result is appropriate, we must defer to the jury’s determination

of the weight to be given contradictory testimonial evidence because resolution of the

conflict “often turns on an evaluation of credibility and demeanor, and those jurors

were in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8. Our

deference in this regard safeguards the defendant’s right to a trial by jury. Lancon v.

State, 253 S.W.3d 699, 704 (Tex. Crim. App. 2008). A factual sufficiency review of

circumstantial evidence is the same as a review of direct evidence. King v. State, 29

S.W.3d 556, 565 (Tex. Crim. App. 2000); Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim.

App. 1999) (reasoning that “[c]ircumstantial evidence, by itself, may be enough to

support the jury’s verdict”).

        It is undisputed by the testifying experts, both for the State and Latimer that the

child died from blunt force trauma to the head. The medical examiner and Dr. Coffman

Latimer v. State                                                                    Page 11
both testified that the blunt force trauma could not have occurred days before the

child’s death because of the severity of the injury to the child’s brain. The child did not

exhibit any symptoms or odd behavior on the days before and the morning of his death.

Latimer was the only adult present the morning of the child’s death. Latimer made

statements to various sources around the time of the child’s death that the child had

gotten out of his play yard more than once that morning, and while she was cooking

lunch, that she was exhausted because the child would get out of his play yard at night,

and that the child was clingy and required a lot of one on one attention.            Other

witnesses described the angry and harsh treatment of the deceased child and the other

children in her home. We find that the evidence was legally sufficient for the jury to

have found beyond a reasonable doubt that Latimer caused the child’s death.

        Latimer contends that statements by the two paramedics, the nurse who treated

the child at the hospital, and a social worker who placed the child with Latimer gave

different details at trial from that which were in written and oral statements given

before trial.      Latimer contends that these inconsistencies, taken with their expert’s

testimony that the child’s brain injury occurred prior to the child’s placement in

Latimer’s home render the evidence factually insufficient. However, it is the province

of the jury to determine the credibility of the witnesses. Johnson, 23 S.W.3d at 9. We

cannot say that the evidence was so weak that the fact-finder’s determination is clearly

wrong and manifestly unjust or that the conflicting evidence so greatly outweighs the

evidence supporting the conviction that the fact-finder’s determination is manifestly




Latimer v. State                                                                    Page 12
unjust. See Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at 414-15, 417. We overrule

issue five.

Conclusion

          We find no abuse of discretion by the trial court by denying Latimer’s motion

for continuance. We also find no abuse of discretion by the trial court in the admission

of the expert testimony by Dr. Coffman or in the admission of the two photographs.

We find the issue regarding the testimony of the witness regarding an extraneous

offense or bad act to have been waived due to inadequate briefing. The evidence was

both legally and factually sufficient to sustain the conviction. We affirm the judgment

of the trial court.


                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Justice Davis joins the opinion in part and concurs in part. Justice Davis joins
the Court on overruling issues one, two, three and five. Justice Davis concurs in
overruling issue four on the briefing of appellant and appellee and does not find the
briefing inadequate and thus, the issue not waived.)
Affirmed
Opinion delivered and filed April 28, 2010
Publish
[CRPM]




Latimer v. State                                                                 Page 13
