                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00162-CR

ROBERTO SANCHEZ                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


                                    ------------

        FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                                  OPINION
                                    ------------

                                I. Introduction

      In five issues, Appellant Roberto Sanchez appeals his murder conviction.

We affirm.

                   II. Factual and Procedural Background

      Sanchez and his friend drove to a Fort Worth nightclub where Sanchez‘s

two cousins, Ingrid and Dilcia, worked. Dilcia spent most of the evening drinking

and talking with Sergio Gonzalez, a customer. Around closing time, Dilcia told

Sergio that she was leaving with Sanchez, Ingrid, and Sanchez‘s friend.
         Sergio, upset that Dilcia was leaving with Sanchez, confronted the group in

the parking lot as they prepared to drive away, shouting expletives and banging

on the car‘s window.       Sanchez and his friend got out of the car, and, after

exchanging heated words with Sergio, Sanchez pulled a knife from his pocket.

Sergio then fled to a parking lot next door as Sanchez chased him with the knife.

Sanchez caught up to Sergio near an ice machine across the parking lot and, as

Sergio leaped backwards to avoid the knife, Sanchez stabbed him once in the

chest.

         Before trial, the State informed the court and Sanchez‘s counsel that

Dilcia, Ingrid, and Sanchez were in the country illegally,1 and during Dilcia‘s

testimony, when the State asked her if Sanchez was in the country illegally,

Dilcia said that he was.       At the close of evidence, Sanchez requested jury

instructions on self-defense, defense of third persons, and necessity. The trial

court denied the request, finding that the instructions had not been raised by the

evidence. The jury found Sanchez guilty and assessed punishment at seventy

years‘ confinement.      The trial court sentenced him accordingly.       This appeal

followed.

                               III. Request for Mistrial

         In his fifth issue, Sanchez asserts that the trial court abused its discretion

by not ordering a mistrial when the State asked Dilcia if Sanchez was in the


         1
         All three were originally from Honduras.

                                            2
country illegally and Dilcia responded that he was illegal and did not have

papers. The State responds that Sanchez failed to preserve the issue for review

because he did not object or move for mistrial. Sanchez concedes that he did

not preserve the issue but argues that the testimony resulted in fundamental

error that can only be remedied by declaring a mistrial.

A. Testimony

      The challenged statement was elicited during the following exchange

between the prosecutor and Dilcia:

      Q: And did you—how old were you when you met [Sanchez]?

      A: Ever since I was a baby. I don‘t recall since I was a little girl.

      Q: Did you both live in Honduras together?

      A: No. He was living in a little town and I was living in another.

      Q: So you were living in different towns, but they were nearby in
         Honduras?

      A: Yes, yes.

      Q: And did you come here before or after he did?

      A: I came—I came here first.

      Q: And are you aware is Roberto Sanchez here legally or illegally?

      A: Well, illegal, he doesn‘t have papers.

      Q: Now, did you used to know a man by the name of Sergio
         Gonzales?

      A: Yes.

      Q: How do you know Sergio?

                                          3
      A: I met him at a bar.

B. Preservation of Error

      To preserve a complaint for review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Clark v. State, 365 S.W.3d 333,

339 (Tex. Crim. App. 2012); Clay v. State, 361 S.W.3d 762, 765 (Tex. App.—Fort

Worth 2012, no pet.). Further, the trial court must have ruled on the request,

objection, or motion, either expressly or implicitly, or the complaining party must

have objected to the trial court‘s refusal to rule. Tex. R. App. P. 33.1(a)(2); Pena

v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011). A reviewing court should

not address the merits of an issue that has not been preserved for appeal.

Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh‘g);

Clay, 361 S.W.3d at 765.

      A motion for mistrial must be timely and specific. Griggs v. State, 213

S.W.3d 923, 927 (Tex. Crim. App.), cert. denied, 552 U.S. 864 (2007). It is timely

only if it is made as soon as the grounds for it become apparent. Id.

      The record shows that Sanchez neither objected to Dilcia‘s testimony nor

requested that the trial court order a mistrial. Therefore, we will only address

Sanchez‘s complaint if it falls under one of two narrow categories of error:

violations of ―rights which are waivable only‖ and denials of ―absolute systemic

requirements,‖ both of which may be raised for the first time on appeal. See

                                         4
State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim. App. 2009); Reyes v. State,

361 S.W.3d 222, 228–29 (Tex. App.—Fort Worth 2012, pet. ref‘d).

      Sanchez argues that the trial court abused its discretion by allowing the

question and answer because the State asked this question ―solely to inflame‖

the jury and ―invoke racial bias and prejudice based upon alienage in violation of

the [Fourteenth] Amendment.‖ To support his argument, Sanchez refers us to

two federal cases, United States v. Borrero-Isaza, 887 F.2d 1349, 1355 (9th Cir.

1989) and United States v. Onuwuemene, 933 F.2d 650, 652 (8th Cir. 1991),2 as

well as several state cases: Moss v. Sanger, 75 Tex. 321, 12 S.W. 619 (1889),3

Guerra v. State, 771 S.W.2d 453 (Tex. Crim. App. 1988), cert. denied, 492 U.S.




      2
        The two federal cases discuss the impropriety of considering a
defendant‘s alienage classification to impose a stricter sentence under the
federal sentencing guidelines and are therefore inapplicable to the issue
presented here because they do not pertain to testimony about a defendant‘s
alienage during the guilt-innocence phase of trial or what the defendant had to do
to preserve his complaint. See Borrero-Isaza, 887 F.2d at 1352–53 (holding that
defendant‘s due process rights were violated when the district court imposed a
stricter sentence based on the defendant‘s national origin and alienage); see also
Onuwuemene, 933 F.2d at 651 (citing to the Ninth Circuit‘s reasoning in Borrero-
Isaza to support the conclusion that sentencing an offender on the basis of
factors such as race, national origin, or alienage violates the federal constitution).
      3
       In Moss, a civil suit, Sanger‘s counsel made blatantly prejudicial
statements during closing argument. 75 Tex. at 323–24, 12 S.W. at 619–20.
The supreme court reversed the judgment on the basis that cases should be tried
―upon the facts proved; and whether a party be Jew or gentile, white or black, is a
matter of indifference.‖ Id. The court did not address whether Moss‘s counsel
had objected to the statements made during closing arguments.

                                          5
925 (1989),4 Penate v. Berry, 348 S.W.2d 167 (Tex. Civ. App.—El Paso 1961,

writ ref‘d n.r.e.),5 Infante v. State, 25 S.W.3d 725 (Tex. App.—Houston [1st Dist.]

2000, pet. ref‘d)6 and TXI Transp. Co. v. Hughes, 224 S.W.3d 870 (Tex. App.—




      4
         In Guerra, the court of criminal appeals concluded that the appellant was
not harmed when the trial court denied his challenge for cause to a venireperson
who had evinced a bias against him ―as a member of the class of illegal aliens‖
because the trial court had instead granted defense counsel an additional strike
to replace the one used on that particular venireperson. 771 S.W.2d at 462–63.
Because this case concerned a potential juror‘s bias against illegal aliens, which
was remedied during trial by the trial court, and not a reference made to a
defendant‘s citizenship status during trial that was not objected to, this case also
fails to resolve our preservation issue.
      5
       In Penate, a personal injury suit, Berry‘s counsel made numerous remarks
about Penate‘s citizenship status during closing arguments, which the El Paso
court held was improper as having been reasonably calculated to result in an
improper judgment. 348 S.W.2d at 168–69. However, in contrast to the case
before us, Penate‘s counsel objected repeatedly to Berry‘s counsel‘s remarks
during closing argument, while Sanchez offered no objection to Dilcia‘s statement
and the State did not reference the remark during its closing arguments.
      6
        In Infante, during the punishment phase of trial, the prosecutor was
allowed to ask, over the defendant‘s objection, if he was an illegal alien, and the
prosecutor asked the question several times because the defendant‘s answers
were mostly non-responsive. 25 S.W.3d at 726. The defendant denied that he
was an illegal alien. Id. The defendant filed a motion for new trial, complaining
that the trial court abused its discretion by admitting into evidence allegations that
he was an illegal alien and in finding that he was an illegal alien and should be
deported after satisfying his 180 days‘ confinement on each conviction. Id. On
appeal, the court distinguished consideration of an illegal status with
consideration of alienage, stating that while an inquiry into the former serves the
purpose of discovering whether the defendant is, in fact, committing a crime with
regard to his legal status in this country, an inquiry into the latter serves no such
purpose. Id. at 727. Unlike Sanchez in the instant case, the defendant objected
to the question. Id. at 726.

                                          6
Fort Worth 2007), rev’d, 306 S.W.3d 230 (Tex. 2010).7 After careful review of the

cases cited in Sanchez‘s brief, however, we conclude that Sanchez has not

provided, and this court is not otherwise aware of, any authority that categorizes

a single question pertaining to a defendant‘s alienage classification as a

waivable-only right or an absolute systemic requirement. See Anderson, 301

S.W.3d at 279; see also Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App.

2003) (reciting examples of waivable-only rights and systemic requirements);

Saldano v. State, 70 S.W.3d 873, 888–89 (Tex. Crim. App. 2002) (same).

      Instead, Sanchez invokes the broad and amorphous concept of due

process to argue that the statements violated his constitutional rights, thus

exempting his complaint from forfeiture under rule of appellate procedure 33.1.

However, no such due process exception to a rule of procedural default exists in

our current jurisprudence.     Anderson, 301 S.W.3d at 279–80 (―[O]ur prior

      7
         In Hughes, a wrongful death and survival action stemming from a multi-
fatality vehicular accident, the supreme court held that the driver‘s statements
about his immigration status were inadmissible for two reasons: his immigration
status was a collateral matter that was not relevant to proving a material issue in
the negligent-entrustment case, and his immigration status was not admissible to
impugn his character for truthfulness. 306 S.W.3d at 233, 241–42. Further, the
court emphasized that the plaintiffs sought to bolster their allegations by calling
attention to the driver‘s immigration status whenever possible, making more than
forty references to that status. Id. at 243–45 (noting that the plaintiffs‘ repeated
injection into the case of the driver‘s nationality, ethnicity, and illegal-immigrant
status ―was plainly calculated to inflame the jury against him‖). In contrast, here,
Sanchez‘s illegal alien status was mentioned only once during the entire
proceeding, and the State did not predicate its trial strategy or shape its closing
argument around that status. And unlike Sanchez in the instant case, in Hughes,
TXI objected to evidence regarding the driver‘s status as an illegal immigrant. Id.
at 234.

                                         7
decisions make clear that numerous constitutional rights, including those that

implicate a defendant‘s due process rights, may be forfeited for purposes of

appellate review unless properly preserved.‖). Accordingly, because Sanchez

did not timely object to the challenged testimony or move for a mistrial, we hold

that Sanchez failed to preserve his fifth issue for review.8 See Tex. R. App. P.

33.1(a)(1); Clark, 365 S.W.3d at 339; Mendez, 138 S.W.3d at 342. We therefore

overrule it.

                               IV. Jury Charge

       In his first three issues, Sanchez argues that the trial court erred by

denying his requested jury instructions on self-defense, necessity, and defense

of third persons. According to Sanchez, the three instructions were raised by

Dilcia and Ingrid‘s testimonies. The State responds that the trial court properly

denied the requested instructions because the evidence showed that Sergio was

unarmed and that Sanchez escalated the encounter by responding with an

unjustified level of force.




       8
       Notwithstanding that we are constrained by the preservation requirement
to reach this outcome, we do not condone in any way the State‘s decision to
introduce Sanchez‘s illegal status during the guilt-innocence phase of trial. As
stated by our supreme court, ―Such appeals to racial and ethnic prejudices,
whether ‗explicit and brazen‘ or ‗veiled and subtle,‘ cannot be tolerated because
they undermine the very basis of our judicial process.‖ Hughes, 306 S.W.3d at
245; see also Garcia v. State, 683 S.W.2d 715, 718–19 (Tex. App.—Houston
[14th Dist.] 1984, writ ref‘d) (indicating disapproval of attempt to interject
improper evidence of defendant‘s illegal status into case).
                                       8
A. Standard of Review

      ―[A]ll alleged jury-charge error must be considered on appellate review

regardless of preservation in the trial court.‖ Kirsch v. State, 357 S.W.3d 645,

649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine

whether error occurred; if error did not occur, our analysis ends. Id. A defendant

is entitled to a defensive instruction only if evidence is admitted supporting the

defense.   Tex. Penal Code Ann. § 2.03(c) (West 2011); Shaw v. State, 243

S.W.3d 647, 657 (Tex. Crim. App. 2007), cert. denied, 553 U.S. 1059 (2008). A

defense is raised by the evidence if there is some evidence, from any source, on

each element of the defense that, if believed by the jury, would support a rational

inference that that element is true. Shaw, 243 S.W.3d at 657–58. In determining

whether a defense is thus supported, a court must rely on its own judgment,

formed in the light of its own common sense and experience, as to the limits of

rational inference from the facts proven. Id. at 658. If a defense is supported by

the evidence, then the defendant is entitled to an instruction on that defense,

even if the evidence supporting the defense is weak or contradicted, and even if

the trial court is of the opinion that the evidence is not credible. Id. But the

evidence must be such that it will support a rational jury finding as to each

element of that defense. Id.

B. Requested Instructions

      Sanchez first asked for instructions under penal code sections 9.31 and

9.32, which provide that a person is justified in using deadly force against

                                        9
another ―when and to the degree the actor reasonably believes the deadly force

is immediately necessary . . . to protect the actor against the other‘s use or

attempted use of unlawful deadly force.‖       Tex. Penal Code Ann. §§ 9.31(a),

9.32(a)(1)–(2)(A) (West 2011). Accordingly, Sanchez was entitled to a charge on

self-defense if evidence was presented that, if believed, showed that Sanchez

reasonably believed his use of deadly force was immediately necessary to

protect himself against Sergio‘s use or attempted use of deadly force.           See

Morales v. State, 357 S.W.3d 1, 4 (Tex. Crim. App. 2011).             Concomitantly,

Sanchez requested an instruction under penal code section 9.33, which states

that the use of force against another to protect a third person is justified if, under

the circumstances as the actor reasonably believes them to be, the actor would

be justified in using deadly force to protect himself, and the actor reasonably

believes that his intervention is immediately necessary to protect the third

person. Tex. Penal Code Ann. § 9.33 (West 2011).

      Sanchez also requested a necessity instruction under penal code section

9.22, which justifies the otherwise criminal conduct if (1) the defendant

reasonably believes that his conduct is immediately necessary to avoid imminent

harm; (2) the desirability and urgency of avoiding the harm clearly outweigh the

harm sought to be prevented by the law proscribing the conduct; and (3) no

legislative purpose exists to exclude the defense. Id. § 9.22 (West 2011). A

―reasonable belief‖ is a belief that an ordinary and prudent person would hold in

the same circumstances as the defendant. Id. § 1.07(a)(42) (West Supp. 2013).

                                         10
Both parties agree that Sanchez, who did not himself testify, impliedly admitted

the charged offense through Dilcia and Ingrid‘s testimonies. See Wood v. State,

271 S.W.3d 329, 334 (Tex. App.—San Antonio 2008, pet. ref‘d) (stating that

defendant must admit to committing offense before necessity instruction can be

submitted); see Hill v. State, 99 S.W.3d 248, 250–51 (Tex. App.—Fort Worth

2003, pet. ref‘d) (noting that self-defense and defense of third person instructions

require defendant admit charged conduct).

C. Analysis

      Two eyewitnesses, Dilcia and Ingrid, were present when the altercation

began and testified about the events that took place. According to Dilcia, Sergio

and his friend Pedro confronted their group in the parking lot because he was

upset that she was leaving with Sanchez. Dilcia testified that Sanchez and his

friend did not seem to be drunk, but that Sergio and Pedro both appeared drunk

during the encounter. Sergio began knocking on the car‘s window hard enough

that Dilcia was scared the glass would break.

      Dilcia testified that she tried to calm Sergio down by telling him that

Sanchez was her cousin, but Sergio kept banging on the window and began

shouting obscenities at the group. Dilcia also stated that Sergio‘s hands were

empty and that he was hitting the window with his closed fists.

      Ingrid testified that when Sanchez and his friend got out of the car, Pedro

took a swing at Sanchez but was so drunk that he missed Sanchez and fell to the

ground. Sanchez‘s friend punched and kicked Pedro in the face while he was on

                                        11
the ground. Ingrid further testified that after Sergio and Sanchez exchanged

words, Sanchez got upset and pulled a knife from his pocket.

      Upon seeing the knife, Sergio ran to a parking lot next door as Sanchez

chased him with the knife.      When Sergio finally turned to face the charging

Sanchez, Ingrid saw Sanchez make a straightforward thrusting motion with the

knife as Sergio leapt backwards with his hands raised in the air. Ingrid also

stated that she tried to stop Sanchez by yelling at him to not look for any trouble

and to leave Sergio alone.

      Dilcia testified that after Sanchez returned to the car, he acted happy and

told his friend, ―I pinch him, dude, and the same way that I put it in, I pull it out

clean.‖9   Additionally, Ingrid said that as they were speeding away from the

parking lot, Sanchez told her ―that it felt good to kill somebody.‖

      Based on our review of the testimony and evidence presented at trial, we

cannot agree with Sanchez‘s contention that the trial court erred by denying his

requested jury instructions.    No evidence showed that Sanchez believed he

needed to use deadly force to protect himself or his cousins. Instead, the two

eyewitnesses describe a predacious Sanchez who acted out of anger, not

protective instinct, in pursuing the unarmed Sergio as he attempted to escape

from Sanchez. No evidence showed that Sergio used or attempted to use deadly

force—in fact, the eyewitnesses testified that Sergio, although belligerent and


      9
       Dilcia explained that ―pinch‖ is a Honduran expression for stab.

                                         12
intoxicated, was unarmed throughout the entire confrontation. See Tex. Penal

Code Ann § 9.01(3) (West 2011) (―‗Deadly force‘ means force that is intended or

known by the actor to cause, or in the manner of its use or intended use is

capable of causing, death or serious bodily injury.‖); Bundy v. State, 280 S.W.3d

425, 435 (Tex. App.—Fort Worth 2009, pet. ref‘d) (stating that deadly force was

not justified in response to attempted punch, which was not deadly force);

Schiffert v. State, 257 S.W.3d 6, 14 (Tex. App.—Fort Worth 2008, pet. dism‘d)

(holding that a punch could not demonstrate attempt to use deadly force).

      While the evidence showed that Sergio acted erratically by banging on the

car window, nothing in the record reveals any basis for Sanchez to reasonably

believe that he needed to use deadly force against Sergio. See Tex. Penal Code

Ann. § 1.07(a)(42) (―‗Reasonable belief‘ means a belief that would be held by an

ordinary and prudent man in the same circumstances as the actor.‖); Kirkpatrick

v. State, 633 S.W.2d 357, 358 (Tex. App.—Fort Worth 1982, pet. ref‘d, untimely

filed) (concluding that appellant was not entitled to use deadly force when victim

―hollered‖ at him and threatened to ―kick his ass‖).

      Here, the evidence presented to the jury showed that Sanchez escalated

the encounter by responding with a greater level of force and maintaining his

aggressive response despite Sergio‘s flight. Therefore, the trial court correctly

found that Sanchez was not entitled to instructions on self-defense, defense of

third persons, or necessity. Having determined that the trial court did not err by

denying the requested instructions, we overrule Sanchez‘s first three issues.

                                         13
                            V. Autopsy Photograph

      In his fourth issue, Sanchez argues that the trial court abused its discretion

by admitting an autopsy photograph. Specifically, he argues that State‘s Exhibit

39,10 a photograph depicting a laceration on Sergio‘s chest, was unfairly

prejudicial and therefore should have been excluded under rule of evidence 403.

A. Standard of Review

      Rule 403 provides that relevant evidence ―may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by considerations of undue delay, or

needless presentation of cumulative evidence.‖          Tex. R. Evid. 403; see

Gigliobianco v. State, 210 S.W.3d 637, 640 (Tex. Crim. App. 2006). Rule 403

favors the admission of relevant evidence and carries a presumption that

relevant evidence will be more probative than prejudicial. Shuffield v. State, 189

S.W.3d 782, 787 (Tex. Crim. App.), cert. denied, 549 U.S. 1056 (2006). Among

the many factors a court may consider in determining whether the probative

value of photographs is substantially outweighed by the danger of unfair

prejudice are the number of exhibits offered; their gruesomeness; their detail;

      10
         In his brief, Sanchez indicates that the challenged autopsy photo was
introduced into evidence as State‘s Exhibit 30. After reviewing the record, we
note that Sanchez objected to an autopsy photo introduced as State‘s Exhibit 39.
The image portrayed in State‘s Exhibit 39, as well as Sanchez‘s objections at
trial, coalesce with the arguments Sanchez makes in his brief, indicating that his
reference to State‘s Exhibit 30 was a clerical mistake. Accordingly, we will
assume for purposes of analysis that Sanchez intended to refer us to the
objection he made at trial concerning State‘s Exhibit 39.

                                        14
their size; whether they are in color or black-and-white; whether they are close

up; whether the body depicted is clothed or naked; the availability of other means

of proof; and other circumstances unique to the individual case. Reese v. State,

33 S.W.3d 238, 241 (Tex. Crim. App. 2000); Santellan v. State, 939 S.W.2d 155,

172 (Tex. Crim. App. 1997); Long v. State, 823 S.W.2d 259, 272 (Tex. Crim.

App. 1991), cert. denied, 505 U.S. 1224 (1992).

      The admissibility of photographs over an objection is within the trial court‘s

sound discretion.   Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim. App.

2004).   Autopsy photographs are generally admissible unless they depict

mutilation of the victim caused by the autopsy itself.      Rayford v. State, 125

S.W.3d 521, 529 (Tex. Crim. App. 2003), cert. denied, 543 U.S. 823 (2004).

Photographs that depict the nature, location, and extent of a wound have been

declared probative enough to outweigh any prejudicial effect. Frank v. State, 183

S.W.3d 63, 78 (Tex. App.—Fort Worth 2005, pet. ref‘d); see Legate v. State, 52

S.W.3d 797, 807 (Tex. App.—San Antonio 2001, pet. ref‘d). The trial court‘s

decision will be reversed only if it was outside the zone of reasonable

disagreement. Salazar v. State, 38 S.W.3d 141, 150–53 (Tex. Crim. App.), cert.

denied, 534 U.S. 855 (2001); In re J.B.C., 233 S.W.3d 88, 94 (Tex. App.—Fort

Worth 2007, pet. denied).

B. Analysis

      Here, Sanchez complains that because there was no dispute that Sergio

died of a stab wound, the photograph served only to inflame the minds of the jury

                                        15
and unfairly prejudice Sanchez.     State‘s Exhibit 39 was an eight-by-ten-inch

photograph showing a close-up view of multiple wounds located on the left side

of Sergio‘s chest.    The photograph was introduced during the testimony of

Tarrant County medical examiner Dr. Nizam Peerwani, who performed the

autopsy. Dr. Peerwani testified that the photograph depicted the wounds on

Sergio‘s body, which included a superficial laceration above his left armpit, a stab

wound on the left side of his chest, and a sutured incision across the left side of

his chest. According to Dr. Peerwani, the sutured incision was produced by the

emergency room surgeon in the process of trying to resuscitate Sergio. Using

the photograph as a reference point, Dr. Peerwani also explained that while the

laceration above Sergio‘s armpit was superficial, the stab wound was of great

importance because that injury ultimately caused Sergio‘s death.

      Additionally, State‘s Exhibit 39 was the only autopsy photograph that

showed the laceration on Sergio‘s armpit and the sutured incision across his

chest. Thus, the autopsy photograph had probative value because it portrayed

the extent and location of Sergio‘s injuries and aided the jury in identifying which

wound was the primary cause of death. See Frank, 183 S.W.3d at 78.

      Further, the photograph, coupled with Dr. Peerwani‘s testimony, was

probative because it distinguished the laceration and stab wound inflicted during

the incident from the sutured incision caused by emergency personnel‘s attempts

to save Sergio‘s life. See Rayford, 125 S.W.3d at 529; Frank, 183 S.W.3d at 78.

Sanchez argues that the photograph lacks probative value because the evidence

                                        16
already established that Sergio died from the stab wound. However, the court of

criminal appeals has rejected the premise that visual evidence accompanying

oral testimony is either cumulative of oral testimony or of insignificant probative

value.     Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999)

(recognizing that visual evidence accompanying testimony gives fact finder a

point of comparison to test credibility of witness and validity of his conclusions),

cert. denied, 528 U.S. 1082 (2000).

         Sanchez further contends that the prejudice caused by the photograph far

outweighs its probative value; however, Sanchez does not provide any

explanation as to how the photograph created unfair prejudice. To the contrary,

the photograph does not depict any mutilation caused by the autopsy, and it is no

more gruesome than would be expected from the type of injury Sergio suffered.

See Rayford, 125 S.W.3d at 529; Shuffield, 189 S.W.3d at 787–88; Frank, 183

S.W.3d at 78.      Therefore, we hold that the probative value of the autopsy

photograph was not substantially outweighed by the danger of unfair prejudice.

See Tex. R. Evid. 403. Accordingly, the trial court did not abuse its discretion by

admitting State‘s Exhibit 39 into evidence, see Paredes, 129 S.W.3d at 539, and

we overrule Sanchez‘s fourth issue.




                                        17
                             VI. Conclusion

     Having overruled all of Sanchez‘s issues, we affirm the trial court‘s

judgment.




                                              BOB MCCOY
                                              JUSTICE

PANEL: MCCOY and GABRIEL, JJ.; and WILLIAM BRIGHAM (Senior Justice,
Retired, Sitting by Assignment).

PUBLISH

DELIVERED: November 27, 2013




                                   18
