
NO. 07-07-0442-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MARCH 10, 2008
______________________________

MARK EDWARD HENDERSON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE
_________________________________

FROM THE COUNTY COURT OF HUTCHINSON COUNTY;

NO. 34,675; HONORABLE FAYE BLANKS, JUDGE
_______________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
PERMANENT ABATEMENT
Â Â Â Â Â Â Â Â Â Â Â Â Appellant was convicted of deadly conduct and assessed punishment at two years
probation.  After a revocation hearing, appellant was sentenced to 180 days in the county
jail and a fine of $1500.  Appellant perfected an appeal, but a mandate has not yet been
issued by this court. 
Â Â Â Â Â Â Â Â Â Â Appellantâs counsel has filed a Motion for Permanent Abatement of Appeal
indicating that appellant is now deceased.   The death of the appellant during the pendency
of his criminal appeal deprives this court of jurisdiction. Freeman v. State, 11 S.W.3d 240
(Tex.Crim.App. 2000); Ryan v. State, 891 S.W.2d 275 (Tex.Crim.App. 1994); Tex. R. App.
P. 7.1(a)(2). The proper action is abatement of the appeal. See Tex. R. App. P. 7.1(a)(2). 
Â Â Â Â Â Â Â Â Â Â Accordingly, appellantâs counselâs motion is granted and this appeal is permanently
abated. 
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Mackey K. Hancock
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice


Do not publish.

 residence, but
when no one answered the door they drove to appellant's house.  After Fidencio changed
his clothes and shoes, the two "kicked back and smoked a cigarette."  Thereafter, with
Fidencio at the wheel, they drove to a friend's house in the victim's car looking for Adrian. 
Although their friend was not home, he was on the phone speaking with his sister and
appellant was allowed to speak with him.  He asked appellant to come pick him up at a
residence in the neighborhood.  Appellant drove the victim's car with Fidencio in the front
seat.
	Meanwhile, the victim's stepfather and sister, together with Adrian, became
concerned that the victim had not returned home and called the police and went out
looking for her.  While they were driving in the neighborhood, they noticed the car the
victim had been driving pass them in the opposite direction and turned and followed. 
Unaware who was following, appellant tried to get away, but ran over a curb and sustained
a flat tire.  After Adrian got out of the car and demanded to know the victim's whereabouts,
Fidencio fled on foot and appellant took Adrian aside and told him everything that had
happened, including that the victim was "somewhere down by the tracks." 
	According to Officer Greg Pace, he was dispatched to the crime scene at 4:25 a.m. 
Although it was dark outside, the spotlight on the train aided him in observing an individual
walking on the tracks toward the train.  He identified the person as Adrian and testified he
was "distraught and upset."  A few minutes later he observed another person tracing
Adrian's steps along the tracks.  That person was identified as appellant and both he and
Adrian were placed in patrol cars until the investigation was concluded.
	By his first and second points of error, appellant contends the evidence is legally
and factually insufficient to establish that he intentionally and knowingly caused the death
of the victim while in the commission of the felony offense of robbery.  We disagree.  When
both the legal and factual sufficiency of the evidence are challenged, we must first
determine whether the evidence is legally sufficient to support the verdict.  Clewis v. State,
922 S.W.2d 126, 133 (Tex.Cr.App. 1996).  It is a fundamental rule of criminal law that one
cannot be convicted of a crime unless it is shown beyond a reasonable doubt that the
defendant committed each element of the alleged offense.  U.S. Const. amend. XIV; Tex.
Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 2002); Tex. Pen. Code Ann. § 2.01
(Vernon 1994).  In conducting a legal sufficiency review, we examine the verdict, after
viewing the evidence in the light most favorable to the prosecution, 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, 318, 99 S.Ct. 2781, 2789, 61
L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 157 (Tex.Cr.App. 1991),
overruled on other grounds, Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App. 2000). 
As an appellate court, we may not sit as a thirteenth juror, but must uphold the jury's
verdict unless it is irrational or unsupported by more than a "mere modicum" of evidence. 
Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988).  The standard of review is the
same for direct and circumstantial evidence cases.  Butler v. State, 769 S.W.2d 234, 238
(Tex.Cr.App. 1989), overruled on other grounds, Geesa, 820 S.W.2d at 161.
	After conducting a legal sufficiency review under Jackson, we may proceed with a
factual sufficiency review.  Clewis, 922 S.W.2d at 133.  As an appellate court, we view all
the evidence without the prism of "in the light most favorable to the prosecution" and set
aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to
be clearly wrong and unjust.  Johnson v. State, 23 S.W.3d 1, 9 (Tex.Cr.App. 2000).  It is
the exclusive province of the jury to determine the credibility of the witnesses and the
weight to be given their testimony, and unless the record clearly demonstrates a different
result is appropriate, we must defer to the jury's determination.  Id. at 8. 
	Before determining whether the evidence is legally sufficient to sustain the
conviction, we must review the essential elements the State was required to prove.  Capital
murder requires proof that appellant intentionally or knowingly caused the death of an
individual in the course of committing or attempting to commit robbery.  Tex. Pen. Code
Ann. Â§Â§ 19.03(a)(2) and 29.02(a) (Vernon 1994); see also Hall v. State, 970 S.W.2d 137,
140 (Tex.App.-Amarillo 1998, pet. ref'd) (noting that capital murder requires proof of,
among other things, that the defendant killed the decedent and intended to obtain or
maintain control of the decedent's property prior to or during the killing).  The point at
which the accused developed the requisite intent for robbery is critical, for it must show
that he intended to take the victim's property before, or as, he murdered.  Id.  Evidence
that shows the taking of property was an afterthought is insufficient to support a capital
murder conviction.  Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Cr.App. 1995) (en banc). 
However, the evidence is sufficient if the State proves that the robbery of the victim
occurred immediately after the murder of the victim.  Nelson v. State, 848 S.W.2d 126,
131-32 (Tex.Cr.App. 1992) (en banc), cert. denied, 510 U.S. 830, 114 S.Ct. 100, 126
L.Ed.2d 66 (1993).  If the State proves that the requisite intent was present, it has proven
that a murder occurred in the course of robbery, even though the element of appropriation
occurred after the murder.  Id.  Additionally, in determining what appellant's intent was at
the time, the fact finder is free to look to the conduct of the accused and make reasonable
inferences therefrom.  Robertson v. State, 871 S.W.2d 701, 705-06 (Tex.Cr.App. 1993),
cert. denied, 513 U.S. 853, 115 S.Ct. 155, 130 L.Ed.2d 94 (1994). 
 Appellant urges that the State failed to prove beyond a reasonable doubt that he
had the culpable mental state of intentionally and knowingly committing murder while in
the course of robbery.  Murder, intentionally or knowingly, is a result oriented offense. 
Cook v. State, 884 S.W.2d 485, 490 (Tex.Cr.App. 1994).  The accused must have
intended the result, death, or have been aware that his conduct was reasonably certain
to cause that result.  Id.  Section 6.03 of the Texas Penal Code defines intentionally and
knowingly as follows:
 (a) A person acts intentionally . . . with respect to the nature of his conduct
or to a result of his conduct when it is his conscious objective or desire to
engage in the conduct or cause the result.
	(b) A person acts knowingly . . . with respect to the nature of his conduct or
to circumstances surrounding his conduct when he is aware of the nature of
his conduct or that the circumstances exist.  A person acts knowingly . . .
with respect to a result of his conduct when he is aware that his conduct is
reasonably certain to cause the result.

In determining the legal sufficiency of the evidence to show appellant's intent or
knowledge, and faced with a record that supports conflicting inferences, we must presume--even if it does not affirmatively appear in the record--that the trier of fact resolved any
such conflict in favor of the prosecution, and must defer to that resolution.  Couchman v.
State, 3 S.W.3d 155, 163 (Tex.App.--Fort Worth 1999, pet. ref'd), citing Matson v. State,
819 S.W.2d 839, 846 (Tex.Cr.App. 1991).  Further, in circumstantial evidence cases it is
not necessary that every fact point directly and independently to the accused's guilt; it is
enough if the conclusion is warranted by the combined and cumulative force of all the
incriminating circumstances.  Johnson v. State, 871 S.W.2d 183, 186 (Tex.Cr.App. 1993),
cert. denied, 511 U.S. 1046, 114 S.Ct. 1579, 128 L.Ed.2d 222 (1994); Armstrong v. State,
958 S.W.2d 278, 283 (Tex.App.--Amarillo 1997, pet. ref'd). 
 After leaving the crime scene with police, appellant voluntarily gave a written and
oral statement.  According to Patrol Sergeant Paul Horn, who conducted the interview,
appellant was "anxious to talk" and after his rights were administered, he gave his
statement.  He also consented to the taking of his blood, dental impression, and hair
samples.  Upon learning that an impression of a footprint on the victim's shirt might match
his shoe, appellant conceded that he helped drag the victim's body across the barbed wire
fence and onto the tracks and that he might have inadvertently stepped on her.  By his
statements, appellant implicated Fidencio as the instigator and described his participation
as being in the wrong place at the wrong time.
 The State established that appellant was with the victim in her car when she was
beaten unconscious.  According to appellant, there was a massive amount of blood in the
car.  The evidence also showed that appellant participated in dragging the victim over the
barbed wire fence and laying her body across the railroad tracks.  
	The medical examiner that performed the autopsy testified that the victim's body
was received in four pieces and sustained a total of 86 injuries by amputation and blunt
force trauma.  After his examination he concluded that the victim was still alive when she
was placed on the tracks.  He described a series of abrasions and linear scratches
consistent with being dragged over a barbed wire fence.  Numerous bruises were
explained and the victim's black eyes were described as being enhanced by a factor of ten
over injuries sustained from a fist fight.  The examiner testified about multiple internal
injuries, but noted that the only life threatening injury was to the liver.  He was unable to
determine whether the victim's brain injury could have been fatal because it was so
distorted by the train overrun.  He concluded that the cause of death was multiple blunt
force trauma due to beatings and trauma caused by the train overrun.  Further, he
explained that the manner of death was a homicide, which he described as a death
occurring at the hands of another through intent or negligence.
	By cross-examination, the defense attempted to establish that because the only life
threatening injury to the victim was sustained by her liver, the superceding cause of death
was attributable to the train.  However, appellant should have been aware that the victim's
death would result from his conduct in helping drag the badly beaten and unconscious
victim over the barbed wire fence and placing her on the railroad tracks.
	Appellant was driving the victim's car when he was pursued by her stepfather,
sister, and Adrian, and the victim was not in the car.  The victim's stepfather testified that
appellant did not have permission to drive the car.  By his oral statement, appellant
claimed that as the victim was being beaten she yelled, "You can take it.  You can have
the car.  You can have whatever you want.  Just don't hurt me."  An inmate with whom
appellant was transported to the courthouse testified that appellant told him that he and
Fidencio killed the victim to steal her car for the stereo.  Appellant's conduct and the
reasonable inferences therefrom show that appellant intended to steal the car while the
victim was being beaten, and the car was in fact stolen immediately after the victim was
placed on the tracks.  Hall, 970 S.W.2d at 140.  There is no evidence to show that the
victim's car was stolen as an afterthought.  Thus, the combined and cumulative force of all
the incriminating circumstances establish that the evidence is legally sufficient to support
appellant's conviction for capital murder.  Point of error one is overruled.  
	Having concluded that the evidence is legally sufficient to support the verdict, we
must now determine, after a neutral review of all the evidence, whether it is factually
sufficient to support the verdict.  Johnson, 23 S.W.3d at 11.  It is the exclusive province
of the fact finder to determine the credibility of the witnesses and the weight to be given
their testimony.  Johnson v. State, 571 S.W.2d 170, 173 (Tex.Cr.App. 1978); Armstrong,
958 S.W.2d at 284.
	Although conflicting at times, the evidence established that appellant was in the car
when the victim was beaten unconscious.  Appellant also admitted that he participated in
dragging the victim over the barbed wire fence and in helping place her body over the
railroad tracks in a manner that was certain to cause death.  He drove her car without
consent and told a third person that he and Fidencio intended to steal the car to retrieve
the stereo.  Based on the foregoing evidence, we do not find that the verdict is so contrary
to the overwhelming weight of the evidence as to require a different result.  Accordingly,
reviewing the evidence under Johnson, 23 S.W.3d at 11, and without substituting our own
judgment, we conclude that the evidence is factually sufficient to support the verdict.  Point
of error two is overruled.
	By his third point of error, appellant asserts the trial court erred in applying the
balancing test of Rule 403 of the Texas Rules of Evidence and admitting into evidence
photographs labeled State's Exhibits 154, 143, 168, 161, 149, 85, 84, 77, 152, 144, 166,
and 165 contending they were more prejudicial than probative.  We disagree.  The
admission of photographs into evidence is within the discretion of the trial court and will
not be disturbed absent an abuse of that discretion.  Wyatt v. State, 23 S.W.3d 18, 29
(Tex.Cr.App. 2000).  Rule 403 provides that, "[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice
. . . ."  The rule creates a presumption of admissibility of all relevant evidence and
authorizes the trial court to exclude such evidence only when there is a "clear disparity
between the degree of prejudice of the offered evidence and its probative value."  Mozon
v. State, 991 S.W.2d 841, 847 (Tex.Cr.App. 1999).  
	In reviewing the trial court's balancing test determination, a reviewing court is to
reverse the trial court's decision "rarely and only after a clear abuse of discretion."  Mozon,
991 S.W.2d at 847, citing Montgomery v. State, 810 S.W.2d 372, 389 (Tex.Cr.App. 1991)
(op. on reh'g).  The trial court's ruling must be measured against the relevant criteria by
which a Rule 403 decision is made.  Montgomery, 810 S.W.2d at 392.  The relevant
criteria include:
	(1) how compelling the extraneous offense evidence serves to make a fact
of consequence more or less probable-a factor which is related to the
strength of the evidence presented by the proponent to show the defendant
in fact committed the offense;
	(2) the potential the other offense evidence has to impress the jury "in some
irrational but nevertheless indelible way";
	(3) the time the proponent will need to develop the evidence, during which
the jury will be distracted from consideration of the indicted offense; and
	(4) the force of the proponent's need fo this evidence to prove a fact of
consequence, i.e., does the proponent have other probative evidence
available to him to help establish this fact, and is this fact related to an issue
in dispute.

Santellan v. State, 939 S.W.2d 155, 169 (Tex.Cr.App. 1997), citing Montgomery, 810
S.W.2d at 389-90; see also Long v. State, 823 S.W.2d 259, 270, cert. denied, 505 U.S.
1224, 112 S.Ct. 3042, 120 L.Ed.2d 910 (1992) (noting that the prejudicial effect of
photographs may also be determined by the number of exhibits offered, their
gruesomeness, detail, and size, whether they are black and white or color, whether they
are close-up, and whether the body is clothed).
	Appellant complains about the following autopsy photographs admitted into
evidence:

	No. 154-left eye depicting hemorrhage;
	No. 143-right eye depicting hemorrhage;
	No. 168--upper torso depicting site of decapitated head and severed
left shoulder;
	No. 161-back side of torso depicting scratches on buttocks and
severed left arm;
	No. 149-back side of legs depicting scratches;
	No. 85-severed lower left arm;
	No. 84-right arm and hip area depicting scratches and bruising;
	No. 77-legs depicting wounds and pink ankle cord on left ankle;
	No. 152-decapitated head depicting tearing of scalp and exposed
brain matter;
	No. 144-decapitated head and exposed brain matter with measuring
device;
	No. 166-decapitated head with a left side view; and
	No. 165-decapitated head with view from chin and throat.

 
	Without authority, appellant argues that autopsy photographs should not be
admitted into evidence when an alternative method such as a drawing can be used to aid
the trier of fact.  However, autopsy photographs are generally admissible unless they
depict mutilation of the victim caused by the autopsy itself.  Rojas v. State, 986 S.W.2d
241, 249 (Tex.Cr.App. 1998).  None of the photographs admitted into evidence reflect
mutilation from the autopsy.
	At the time the exhibits were offered by the State, appellant objected on Rule 403
grounds.  After the exhibits were admitted, the medical examiner explained the necessity
of the photographs to assist in his testimony of the different injuries the victim sustained
to multiple parts of her body.  Although exhibits 152 and 144 both depict the victim's
decapitated head and exposed brain matter, the medical examiner explained that exhibit
152 showed more of the full frontal face and the top surface of the head while exhibit 144
illustrated the injuries the victim sustained to the side of her head.  According to the
medical examiner, the exhibits showing different views and aspects of the victim's body
parts were necessary to assist him in differentiating between the numerous injuries. 
Although some could have been considered repulsive, "they portrayed no more than the
gruesomeness of the injuries inflicted."  Wyatt, 23 S.W.2d at 30.  
	Where, as here, there was no direct evidence that appellant caused the victim's
death, the photographs of the injuries sustained by the victim served to make a fact of
consequence, i.e., appellant's intent to cause the victim's death by blunt force trauma,
more probable.  Thus, not only was the evidence relevant, the State also established a
need for the evidence.  Appellant has failed to show that the prejudicial impact of the
autopsy photographs outweighed their probative value.  We find that the trial court did not
abuse its discretion in admitting the 12 photographs of which appellant complains.  Point
of error three is overruled.
	Accordingly, the judgment of the trial court is affirmed.

						Don H. Reavis
						    Justice


Do not publish.
1. Fidencio Flores was also convicted of the capital murder of the 19-year old victim,
and by opinion dated June 22, 2000, his conviction was affirmed.
2. The victim was Adrian's former girlfriend and the two remained friends.
