                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

  GREG DUDLEY,                                   §
                                                                 No. 08-17-00125-CR
                    Appellant,                   §
                                                                    Appeal from the
  v.                                             §
                                                                  120th District Court
  THE STATE OF TEXAS,                            §
                                                               of El Paso County, Texas
                    Appellee.                    §
                                                                 (TC# 20150D02228)
                                                 §


                                         OPINION

       A jury found Greg Dudley guilty of the murder of Deanna Stewart. Dudley appeals his

conviction based on two evidentiary issues. First, he argues the trial court erred by admitting

evidence of prior bad acts. Second, he argues the court erred by admitting two photographs of the

deceased victim taken at the scene. As to both issues, Dudley argues the court’s error resulted in

harm requiring reversal of his conviction. We affirm.

                                       BACKGROUND

       Dudley and Deanna Stewart lived together with Deanna’s sixteen-year-old daughter

Adrianna in a home in El Paso. The couple had been dating for eight or nine years. On Friday,

April 10, 2015, Dudley and Deanna dropped off Adrianna at school after first taking her to a

doctor’s appointment. Adrianna started walking home from school after 4 p.m. Approaching her
home, she noticed that both the screen door and wooden front door were partially open. As she

tried to enter, the front door closed on her as if forcefully shut. Through the door, she then heard

Dudley ask her to “wait one minute.” Dudley soon exited and told her that he and her mother had

gotten into an argument and her mother had left. After locking the doors behind him, Dudley

asked Adrianna to come with him and together they would go looking for her.

       Dudley drove them to the nearby home of Jackie Medina, a cousin of Adrianna and niece

of Deanna. After discovering that Deanna was not at Jackie’s, Dudley left Adrianna there and told

her he would be searching for Deanna. Adrianna stayed at Jackie’s the entire weekend. For the

rest of Friday and all day Saturday, Adrianna continuously called or sent text messages to her

mother, but she was never able to reach her. On Sunday, April 12, Adrianna called her older sister

Diamond to pick her up from Jackie’s and take her back home because she had school the next

morning. Diamond picked up Adrianna and their aunt Dawn Medina and drove them all to Deanna

and Dudley’s house. When they arrived, Adrianna unlocked the door and let Dawn enter.

Adrianna dropped her backpack inside but quickly went back out to retrieve a bag from Diamond’s

car. Soon, Dawn came running out, “going frantic,” describing she had discovered Deanna’s body

lying on the floor with blood around her. Panicky, Dawn screamed to call the police. Officers

called to the scene discovered Deanna’s body with a single gunshot wound to her back. In a later

autopsy by Dr. Janice Diaz-Cavalliery, she concluded the manner of death was homicide.

       Cell phone records showed that at 1:46 p.m. (MST) on Friday, April 10, Dudley texted the

following message to his son: “Hey I am going away for a bit. I love you guys. Behave.” Another

message he sent said, “I’m going away for a long time.” Cell phone location data showed that

Dudley’s phone accessed an antenna tower consistent with him being at home at 2:27 p.m. on that


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day. The records further showed that Dudley spent the afternoon of Saturday, April 11, in various

locations in El Paso. At one point, officers had encountered Dudley asleep in a parked vehicle

with his head resting on the steering wheel. He was questioned for driving while intoxicated. On

Sunday, April 12, officers located Dudley at his brother’s house and brought him to the police

station for questioning. Later, he was placed under arrest.

       By indictment, the State charged Dudley with Deanna’s murder. At trial, in addition to

several witnesses, the State offered approximately one hundred photographs including State’s

Exhibits 105 and 106, two photographs depicting Deanna’s body that were taken by an officer at

the scene. Although Dudley objected to the admission of Exhibits 105 and 106, the court admitted

both photographs but prohibited the State from displaying a portion of one, Exhibit 106, because

it showed Deanna’s partially exposed torso. While testifying, Dr. Diaz-Cavalliery referenced

State’s Exhibit 105 when describing the timeline of Deanna’s death, and particularly noted the

presence of post-mortem lividity shown by the pooling of blood in her face.

       Other evidence presented by the State included incidents of discord and conflict in Dudley

and Deanna’s relationship. Deanna’s older daughter Diamond testified to hearing the couple argue

frequently when she was still living with them in 2011 and 2012. Diamond particularly described

events of July 31, 2011, which had led to her calling 911 for police assistance. Another incident

involved Officer John Garcia. In 2012, Officer Garcia was dispatched to Deanna and Dudley’s

residence to assist Deanna with removing her belongings from the home. Officer Garcia testified

that Dudley admitted he had grabbed Deanna’s thigh during the argument that preceded the call.

Another incident involved Deanna’s daughter Adrianna who testified about an incident that

occurred a year or two before Deanna’s death when the family lived in a home on Nancy


                                                3
McDonald. Adrianna heard loud yelling and crying coming from her mother’s bedroom. When

she went downstairs, she saw Deanna lying on the floor while holding her hand to her face. Dudley

stood over her with his hand balled up in a fist.

       Evidence also included information about Deanna and Dudley’s relationship generally.

Adrianna testified that she informed investigating officers that “two to three times a week” in the

months leading up to her mother’s death, Dudley would make a hand gesture like that of a handgun

and point it at Deanna when they argued. Deanna’s niece, Jackie Medina, also testified at trial that

she believed Deanna and Dudley’s relationship had been volatile. Jackie gave Deanna rides home

after she had walked off during their arguments. On one such occasion, Jackie picked up Deanna

from a police station.

       After deliberating, the jury convicted Dudley of murder and sentenced him to eighty years’

imprisonment. This appeal follows.

                                          DISCUSSION

       Dudley appeals his conviction in three issues. First, he argues that the trial court erred by

admitting evidence of his alleged prior bad acts regarding the incidents of alleged violence between

himself and Deanna in violation of TEX. R. EVID. 403 and 404(b). Second, he argues that the trial

court violated Rule 403 by admitting two photographs of Deanna’s body taken at the crime scene

because the probative value of the evidence was substantially outweighed by the risk of unfair

prejudice. Finally, Dudley argues that these combined errors require reversal under TEX. R. APP.

P. 44.2(b). We discuss each issue in turn.

                                    Extraneous Offense Evidence

                                             Rule 404(b)


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       In his first issue, Dudley argues that the trial court erred by admitting evidence of his prior

bad acts committed against Deanna during their relationship because the evidence was admitted

for an improper character conformity purpose. We review the trial court’s admission of extraneous

offense evidence under the abuse of discretion standard. Page v. State, 213 SW.3d 332, 338 (Tex.

Crim. App. 2006). The trial court’s decision will be upheld if it falls within the zone of reasonable

disagreement. Id. An appellate court should not set aside the trial court’s rulings absent a showing

that the trial court has abused its discretion. Montgomery v. State, 810 S.W.2d 372, 379 (Tex.

Crim. App. 1990); Stembridge v. State, No. 08-07-00181-CR, 2008 WL 4764116, at *2 (Tex.

App.—El Paso Oct. 30, 2008, no pet.) (not designated for publication).

       Evidence of a defendant’s prior crime, wrong, or other act may not be used to establish his

conformity with a pertinent character trait on a particular occasion. TEX. R. EVID. 404(b)(1).

Nevertheless, such character evidence may be used for another non-conformity purpose, such as

rebuttal of a defensive theory or proving, inter alia, the defendant’s motive, opportunity, intent,

plan, knowledge, identity, absence of mistake, or lack of accident. TEX. R. EVID. 404(b)(2).

       During the opening statement by the defense, his counsel described Dudley and Deanna as

“folks like you and me and everybody else,” and stated that on the day that Deanna went missing,

there was no evidence of “eruptions” between her and Dudley. Later, over defense objections, the

State presented evidence which recounted instances of prior violence occurring between Deanna

and Dudley. Deanna’s older daughter Diamond testified about an incident that occurred on July

31, 2011. Diamond called 911 after Deanna came running into her room. Dudley tried pushing

the door open while Diamond requested police assistance. Over the defense’s objections, the State

presented Diamond’s 911 call in which she asked for help and reported that her mother’s boyfriend


                                                 5
had just hit her mother. Deanna can be heard crying while Diamond reports that her mother’s hand

was bleeding.

       The State also presented testimony from Officer Scott Grace who had responded to the 911

call on July 31, 2011. Officer Grace testified that he spoke to Dudley who accused Deanna of

slapping, scratching, and punching him while he was driving. To stop her, Dudley claimed he bit

her on her forearm and near her index finger and thumb. When Officer Grace interviewed Deanna,

she reversed the accusation. He had a difficult time determining who had been the initial aggressor

as both parties were intoxicated and gave conflicting stories. Based on his assessment, Officer

Grace arrested Deanna after concluding that she had initiated the aggression, and Dudley was not

arrested. Later, however, the prosecutor assigned to the case dismissed the charge that had been

filed against Deanna.

       Next, the State presented testimony from Officer John Garcia. On September 3, 2012, he

responded to an incident in which Deanna requested police assistance in removing her belongings

from her residence. While there, Dudley admitted that he had grabbed Deanna’s thigh during their

argument. Officer Garcia confirmed he could see a redness in the area mentioned and he took

photographs. Although Dudley was initially charged with assault, the District Attorney’s office

later declined the case against him.

       The State also presented testimony from Adrianna about another prior incident. When

living in their past residence, Adrianna heard yelling and crying coming from Deanna’s bedroom.

When she went into the bedroom, she saw Deanna lying on the floor holding her face while Dudley

was standing over her with his fist closed. Adrianna took Deanna to her bedroom and noticed that

she had a red mark around her eye. Although Adrianna wanted to call police, she did not do so


                                                6
because Deanna had asked her not to.

       Finally, the State also presented Jackie’s testimony that she believed Deanna’s relationship

with Dudley had been “volatile.” Once she picked Deanna up from a police station, and several

other times from the streets near her home after incidents occurred between her and Dudley. Jackie

also testified that she occasionally noticed bruises on Deanna’s arms and legs.

       The defense objected to all the testimony of prior incidents except for Jackie’s testimony

based on Rules 403 and 404, and the trial court overruled the objections and admitted the evidence.

Responding to this evidence, the defense presented its theory that the relationship between Deanna

and Dudley was not as volatile as portrayed, and more pointedly argued that Dudley could not

have killed Deanna because she died on a Sunday morning when Dudley was in a different area of

the city. During the parties’ arguments, only the State mentioned the prior incidences between

Dudley and Deanna, arguing that the evidence showed their relationship was “not well

emotionally, not well physically.”

       We begin our analysis by first addressing the State’s argument that the trial court did not

err in admitting testimony regarding Dudley’s relationship with Deanna because Dudley “opened

the door” to the admission of the evidence. Texas courts have recognized that a defendant may

“open the door” to otherwise inadmissible, extraneous offense evidence by putting forth a

defensive theory, i.e., by commenting in an opening statement or eliciting testimony from a

witness, that invites the opposing party to respond. Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim.

App. 2008). Here, defense counsel argued during his opening statement that Deanna and Dudley

were “folks like you and me and everybody else,” and that on the day of Deanna’s disappearance,

there was no evidence of rising tension or conflict between them.


                                                7
           We hold that defense counsel’s statement that Deanna and Dudley were “folks like you

and me and everybody else” opened the door to the admission of evidence tending to rebut that

theory. This statement tended to portray the relationship between Deanna and Dudley as being as

ordinary as any other couple. Responding, the State offered evidence tending to rebut that theory

demonstrating that their relationship included incidences of discord, strife, and violence. As such,

we hold that the trial court’s admission of testimony about their relationship fell within the court’s

zone of reasonable disagreement, thus no abuse of discretion occurred. See Bass, 270 S.W.3d at

563 (trial court did not abuse its discretion in admitting extraneous offense evidence where trial

counsel opened the door to the admission of the evidence while making his opening statement).

           Even if Dudley had not opened the door to the admission of this evidence, we nonetheless

hold that the trial court did not abuse its discretion. On appeal, Dudley contends that the evidence

was inadmissible under Rule 404(b) because the evidence was used for a conformity-with-

character purpose, and the evidence did not have a purpose other than as improper character

evidence. He further argues that the trial court misapplied TEX. CODE CRIM. PROC. ANN. art.

38.36(a),1 which directs the trial court in a murder trial to permit the parties to admit evidence of

the prior relationship of the defendant and victim, arguing that the rule permitting admission of

such evidence is incompatible with Rule 404(b). We disagree.

           As the State points out, article 38.36(a) operates congruent with Rule 404(b), and the two

do not conflict with each other. See Garcia v. State, 201 S.W.3d 695, 702 (Tex. Crim. App. 2006).


1
    In its entirety, TEX. CODE CRIM. PROC. ANN. art. 38.36(a) reads:

           In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to
           all relevant facts and circumstances surrounding the killing and the previous relationship existing
           between the accused and the deceased, together with all relevant facts and circumstances going to
           show the condition of the mind of the accused at the time of the offense.

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This is so because article 38.36(a) allows the use of a defendant’s prior bad acts to establish the

defendant’s prior relationship with the victim, which is a proper non-character conformity purpose

admissible under Rule 404(b). See id. In this case, the State was entitled to present evidence

pertaining to Dudley’s motive and intent to commit the offense since the evidence of his prior

violent relationship with Deanna was relevant as a circumstance tending to prove the commission

of the charged offense. See TEX. CODE CRIM. PROC. ANN. art. 38.36(a); TEX. R. EVID. 404(b)

(extraneous offense evidence may be admitted to prove, inter alia, motive or intent); see also Foy

v. State, 593 S.W.2d 707, 707–08 (Tex. Crim. App. 1980) (the State may offer evidence to show

motive for the commission of an offense because it is relevant to prove the actual commission of

the offense). Likewise, Dudley’s motive for committing the murder was a material issue required

to resolve the case. See Foy, 593 S.W.2d at 708 (evidence of prior misconduct toward the victims

of the offense charged was admissible as circumstantial evidence of a motive for committing the

charged offense). As such, the evidence of Dudley’s prior violent relationship with Deanna was

properly admitted for non-character conformity purposes, and we hold that the trial court did not

abuse its discretion in admitting the evidence on these grounds.

                                             Rule 403

       Dudley next argues that the trial court abused its discretion in admitting the evidence of his

relationship with Deanna because the evidence’s probative value was substantially outweighed by

the risk of unfair prejudice in violation of TEX. R. EVID. 403. Evidence is relevant if it has any

tendency to make a fact more or less probable than it would be without the evidence, and the fact

is of consequence in determining the action. TEX. R. EVID. 401. Nevertheless, relevant evidence

may be excluded if its probative value is substantially outweighed by a danger of unfair prejudice,


                                                 9
confusing the issues, misleading the jury, causing undue delay, or needlessly presenting

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.” Dawkins

v. State, 557 S.W.3d 592, 605 (Tex. App.—El Paso 2016, no pet.) (citing Gallo v. State, 239

S.W.3d 757, 762 (Tex. Crim. App. 2007)). In determining whether the trial court correctly

admitted evidence in the face of a Rule 403 objection, we consider the following factors by

weighing: “(1) the inherent probative value of the evidence and (2) the State’s need for that

evidence against (3) any tendency of the evidence to suggest a decision on an improper basis, (4)

any tendency to confuse or distract the jury from the main issues, (5) any tendency 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 be needlessly cumulative.” Knight v. State, 457 S.W.3d 192, 204 (Tex. App.—El Paso 2015,

pet. ref’d) (quoting Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006)).

       Here, the extraneous offense evidence pertaining to Deanna and Dudley’s relationship had

probative value and the State had the need for the evidence because it tended to establish Dudley’s

motive for committing the offense and tended to disprove the defense’s theory that their

relationship had been ordinary and just like any other. See, e.g., Brock v. State, 275 S.W.3d 586,

588–90 (Tex. App.—Amarillo 2008, pet. ref’d) (evidence of prior bad acts committed several

years before the charged offense were nonetheless probative evidence of defendant’s motive to

murder victim). The State also had need for the evidence because the case was founded on

circumstantial evidence, without direct evidence linking Dudley to Deanna’s murder, and such

evidence of Dudley’s motive to commit the offense was necessary to establish his guilt. See


                                                10
Gibson v. State, No. 11-99-00165-CR, 2000 WL 34235110, at *2 (Tex. App.—Eastland June 15,

2000, no pet.) (not designated for publication). On the other hand, the complained-of evidence

was unlikely to cause the jury to give it undue weight in their decision making, nor was it

emotionally charged, since the details of the extraneous evidence were not as emotional or graphic

as that of the charged offense. Neither did the evidence have any tendency to distract the jury from

the main issues in the case. Finally, the evidence was not unnecessarily cumulative and did not

take an inordinate amount of time to develop or present.

       As such, we hold that the trial court did not abuse its discretion in admitting the extraneous

offense evidence over Dudley’s Rule 403 objections. See Brock, 275 S.W.3d at 590 (evidence of

defendant’s prior instances of domestic violence against his wife in trial for her murder were not

unfairly prejudicial where (1) the evidence explained their relationship and established the

motivation for her murder; (2) the evidence did not tend to confuse the jury or impact it in an

irrational way; and (3) the evidence was not unnecessarily cumulative and did not take an

inordinate amount of time to develop); Gibson, 2000 WL 34235110, at *2 (evidence of defendant’s

extraneous offenses were properly admitted in face of Rule 403 objection where the State’s need

for the evidence was great because of a lack of direct evidence establishing the defendant’s guilt).

Dudley’s first issue is overruled.

                                     Crime Scene Photographs

       In his second issue, Dudley argues that the trial court erred by admitting State’s Exhibits

105 and 106, which were crime scene photographs depicting Deanna’s body, contending that the

probative value of the photographs was substantially outweighed by their prejudicial effect. The

admission of gruesome photographs depicting a deceased person is reviewed under the same abuse


                                                11
of discretion standard set forth above. See Davis v. State, 313 S.W.3d 317, 331 (Tex. Crim. App.

2010); Dawkins, 557 S.W.3d at 604. Likewise, we address the issue under the same Rule 403

standard as stated above. See Chavez, 2018 WL 2715219, at *8–9.

       During its case-in-chief, the State offered approximately one hundred color photographs

depicting the crime scene. Included in these photographs was State’s Exhibit 105, which was a

photograph of Deanna lying on her back showing her t-shirt soaked in blood, but her face only

partially shown, and State’s Exhibit 106, which shows her face and part of her exposed bloody

abdomen and chest. Dudley objected to the admission of Exhibits 105 and 106, arguing that their

probative value was outweighed by their prejudicial effect.        The State responded that the

photographs depicted the crime scene and the gunshot wound on the body, and further established

that the body had begun to decompose at the time when the photographs were taken. The trial

court overruled Dudley’s objections and admitted these two photographs, with the caveat that the

State prevent the jury from seeing a portion of State’s Exhibit 106 showing the bottom portion of

Deanna’s torso. The State referenced these photographs while questioning a crime-scene officer

about his investigation. The medical examiner, Dr. Diaz-Cavalliery, also referenced State’s

Exhibit 105 while testifying about her findings regarding Deanna’s cause of death The record

does not reflect that the photographs were displayed by the parties during their arguments.

       On appeal, Dudley argues that Exhibits 105 and 106 were unfairly prejudicial and had low

probative value, in violation of Rule 403. He contends that they were “gruesome” because they

depicted Deanna’s bloody body, and one of the photographs depicted her face and her partially

exposed abdomen and bra.        Dudley also argues that the photographs were unnecessarily

cumulative since the trial court admitted at least twenty-three other photographs of the crime scene


                                                12
which also showed at least some portion of Deanna’s body. Likewise, he contends that the

photographs were unnecessarily cumulative of testimony from officers and Dr. Diaz-Cavalliery,

who necessarily described the crime scene and established Deanna’s cause of death, respectively.

We disagree.

       We have previously held that a trial court does not violate Rule 403 in admitting

photographs depicting a deceased person where the evidence is helpful to the jury in visualizing

the crime scene and the condition of the victim due to the injuries inflicted, understanding law

enforcement’s investigation of the offense, establishing the State’s theory of guilt, or explaining

testimony from a medical examiner. See, e.g., Chavez, 2018 WL 2715219, at *8–10; Dawkins,

557 S.W.3d at 605–06; McNair v. State, No. 08-16-00033-CR, 2018 WL 2356405, at *8–10 (Tex.

App.—El Paso May 24, 2018, no pet.) (not designated for publication). Here, the photographs had

probative value because they aided the jury in visualizing the state in which Deanna’s body was

discovered and helped to explain Dr. Diaz-Cavalliery’s testimony regarding her findings after

performing an autopsy. The State also had need for the photographs because they depicted the

fixed lividity on Deanna’s face, which tended to establish Dr. Diaz-Cavalliery’s testimony

regarding Deanna’s time of death and refuted Dudley’s alibi. Although the photographs are

gruesome, they were not likely to cause the jury to make a decision on an inappropriate basis,

distract the jury from the main issues, or to give undue weight to the evidence. Likewise, the

evidence did not consume an inordinate amount of time to develop, nor were they unnecessarily

cumulative of other evidence.

       As such, we hold that the trial court’s decision to admit the photographs was within the

zone of reasonable disagreement and did not constitute an abuse of discretion. See Chavez, 2018


                                                13
WL 2715219, at *8–10 (trial court did not violate Rule 403 in admitting graphic autopsy

photographs where they were helpful in clarifying a medical examiner’s testimony and helped

establish the victim’s cause of death, and where the evidence did not take an inordinate amount of

time to develop and was not unnecessarily cumulative of other evidence); Dawkins, 557 S.W.3d

at 605–06 (upholding trial court’s decision admitting gruesome autopsy photographs over

defense’s Rule 403 objection, reasoning in part that the presentation of gruesome photographs in

a murder trial is “par for the course” and that jurors are expected to view such evidence in murder

trials); McNair, 2018 WL 2356405, at *8–10 (trial court did not violate Rule 403 in admitting

gruesome photographs of a deceased victim’s body where the photographs depicted the crime

scene and the condition of the victim’s body because the photographs tended to aid the jury in

understanding the manner and means of the victim’s death and corroborated the State’s theory of

guilt). Accordingly, we overrule Dudley’s second issue.

       Because we hold that the trial court did not abuse its discretion in admitting the extraneous

offense evidence or the photographs depicting Deanna’s body, we need not address whether

Dudley was harmed by the trial court’s admission of the evidence presented. See TEX. R. APP. P.

47.1; Chavez, 2018 WL 2715219, at *10. Accordingly, we will not address Dudley’s third issue.

                                        CONCLUSION

       Having overruled the issues addressed, we affirm the judgment of the trial court.



                                             GINA M. PALAFOX, Justice
April 24, 2019

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)

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