                            NUMBER 13-07-00539-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


SALVADOR RODRIGUEZ,                                                         Appellant,

                                            v.

THE STATE OF TEXAS,                                                         Appellee.


  On appeal from the 332nd District Court of Hidalgo County, Texas.


                                   OPINION

                 Before Justices Rodriguez, Garza, and Vela
                          Opinion by Justice Garza

      Appellant, Salvador Rodriguez, was indicted with one count of murder, a first-degree

felony. See TEX . PENAL CODE ANN . § 19.02(b)(1), (c) (Vernon 2003). A jury convicted

Rodriguez of the lesser-included offense of voluntary manslaughter and sentenced him to

twenty years’ confinement in the Institutional Division of the Texas Department of Criminal

Justice and assessed a $10,000 fine. See id. § 19.04(a) (providing that a person commits
manslaughter “if he recklessly causes the death of an individual”).1 Rodriguez argues that

the trial court committed reversible error by: (1) denying him credit for time served in a

Mexican prison; (2) failing to submit a “beyond a reasonable doubt instruction” at the

punishment phase of the trial; and (3) allowing prejudicial photographs into evidence at the

punishment phase of the trial. We affirm.

                                               I. BACKGROUND

        Because Rodriguez does not challenge the sufficiency of the evidence supporting

his conviction, only a brief recitation of the facts is necessary. See TEX . R. APP. P. 47.1.

On August 4, 1991, Rodriguez shot and killed Jose Jorge Cardenas after Rodriguez

observed Cardenas “making love” to Rodriguez’s girlfriend, Monica Clark. After shooting

Cardenas, Rodriguez fled to Mexico. In 2004, Rodriguez was apprehended by Mexican

authorities and was placed in a Mexican jail.

        On July 21, 2004, a Hidalgo County grand jury indicted Rodriguez with murder, a

first-degree felony. See TEX . PENAL CODE ANN . § 19.02(b)(1), (c). A capias warrant was

issued on July 26, 2004, and extradition proceedings commenced. Rodriguez was later

extradited to the United States and was housed in a Harris County jail from March 2, 2006

to March 9, 2006. He was transferred to a Hidalgo County jail on March 9, 2006, and was

arraigned on March 17, 2006. Trial commenced in the 332nd Judicial District Court of

Hidalgo County on November 27, 2006. The jury convicted Rodriguez of the lesser-

included offense of voluntary manslaughter. See id. § 19.04(a).

        At the punishment hearing, the State moved the trial court to admit all of the


        1
          Section 19.04(b) provides that m anslaughter is a second-degree felony. See T EX . P EN AL C OD E A N N .
§ 19.04(b) (Vernon 2003). The punishm ent range for second-degree felonies is im prisonm ent for a term of
not m ore than twenty years or less than two years. Id. § 12.33(a) (Vernon 2003).

                                                        2
evidence considered by the jury at the guilt-innocence phase. Among the evidence

presented at the guilt-innocence phase was testimony from Christina Pallasser,

Rodriguez’s girlfriend from 2001 to 2006, and several photographs of Cardenas’s autopsy.

Rodriguez renewed objections made during the guilt-innocence phase that: (1) portions

of Pallasser’s testimony were irrelevant, highly prejudicial, violated the parties’ motions in

limine, and allegedly was not provided in discovery; and (2) the probative value of

introducing the photographs of Cardenas’s autopsy was outweighed by the prejudicial

effect and the photographs were cumulative of other evidence contained in the record.2

See TEX . R. EVID . 402, 403.

        With respect to Pallasser’s testimony, Rodriguez complains about the following

exchange that took place in the presence of the jury during the guilt-innocence phase:

        Q: [The State]                    . . . . Why did you go visit him [Rodriguez] in jail
                                          [in Mexico]?

        A:                                So I—I visited him in jail to—to be safe.                 I
                                          mean—

        Q:                                What do you mean by being safe?

        A:                                I live in Mexico and—and the mother and he
                                          could do anything to me. Once he mentioned I
                                          could have sent the—

        [Counsel for Rodriguez]:          Judge, I am—I am going—

        A:                                —person to kill you.

        [Counsel for Rodriguez]:          —to object. This is—

        THE COURT:                        Sustained.



        2
          During the guilt-innocence phase, the trial court overruled Rodriguez’s objection to the State’s use
of the autopsy photographs.

                                                      3
        [Counsel for Rodriguez]:          —nonresponsive.

        THE COURT:                        Move along, Counsel. Move along, Counsel.

        [The State]:                      Yes. Your Honor, actually I have a problem with
                                          that because I think she was explaining why she
                                          had to visit him in jail and she said she had to
                                          feel safe.[3]

The trial court overruled Rodriguez’s punishment phase objections.

        The jury subsequently sentenced Rodriguez to twenty years’ confinement. See TEX .

PENAL CODE ANN . § 12.33(a), 19.04(b). In calculating Rodriguez’s credit for time served

in jail, the trial court concluded that Rodriguez was entitled to 270 days for “time spent in

jail in this cause.”4 On July 31, 2008, Rodriguez filed a motion for a judgment nunc pro

tunc to reflect additional credit for time served in a Mexican jail. Specifically, Rodriguez

argued that he was entitled to credit for the following time served: (1) August 18, 2004 to

March 2, 2006 in a Mexican jail; (2) March 2, 2006 to March 9, 2006 in a Harris County jail;

and (3) March 9, 2006 to December 1, 2006 in a Hidalgo County jail. In sum, Rodriguez

requested that the trial court award him a total of 833 days’ credit for time served in jail.

The trial court did not rule on Rodriguez’s nunc pro tunc motion. The trial court certified

Rodriguez’s right to appeal on May 29, 2007. This appeal ensued.




        3
          At the guilt-innocence phase, Rodriguez also requested an instruction to disregard Pallasser’s
statem ent and a m istrial; the trial court denied both requests.

        4
          During the punishm ent phase, the trial court noted the following with regard to the tim e Rodriguez
spent in a Mexican jail:

        THE COURT:       W hat’s the law on credit? I don’t want to give him credit for any tim e in
                         Mexico, just the tim e here.

        [The State]:     Your Honor—

        THE COURT:       I’ll give you credit for the tim e spent here. Sit down.

                                                       4
                                                  II. ANALYSIS

A. Credit for Time Served in a Mexican Jail

        In his first issue, Rodriguez argues that the trial court erred in denying him credit for

the days he spent in a Mexican jail. The State asserts that it is not appropriate to raise this

issue by direct appeal; rather, Rodriguez should have filed a petition for a writ of

mandamus challenging the trial court’s failure to rule on his nunc pro tunc motion. The

State further asserts that the record does not contain sufficient information to determine

the precise amount of jail credit to which Rodriguez is entitled.5

        1. Applicable Law

        Article 42.03, section 2(a) of the code of criminal procedure mandates that “[i]n all

criminal cases the judge of the court in which the defendant was convicted shall give the

defendant credit on his sentence for the time the defendant has spent . . . in jail in said

cause . . . from the time of arrest and confinement until his sentence by the trial court.”

TEX . CODE CRIM . PROC . ANN . art. 42.03, § 2(a)(1) (Vernon Supp. 2008) (emphasis added).

Consequently, “[t]he trial court is required to grant the [defendant] pre-sentence jail time

when sentence is pronounced.” See Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim.

App. 2004) (per curiam). Reflecting the mandatory, ministerial6 nature of this duty, the

court of criminal appeals has instructed lower courts that “[i]n the event the [trial] court fails

to award such credit at the time the sentence is imposed, the trial court has the authority


          5
            Although the State argues that the record before this Court does not establish the precise am ount
of jail credit to which Rodriguez is entitled, the State does concede that Rodriguez is entitled to som e credit
for tim e served in a Mexican jail.

        6
           “An act is m inisterial if it does not involve the exercise of any discretion and the relator has a clear
right to relief. . . . The relief sought m ust be clear and indisputable, such that its m erits are beyond dispute.”
In re Daisy, 156 S.W .3d 922, 924 (Tex. App.–Dallas 2005, orig. proceeding); see Collins v. State, 240 S.W .3d
925, 928 (Tex. Crim . App. 2007).

                                                         5
to correct the judgment to reflect the appropriate time credit by nunc pro tunc order and

should do so.” Id.; see Collins v. State, 240 S.W.3d 925, 928 (Tex. Crim. App. 2007) (“An

incorrect calculation of the amount of back-time awarded to a defendant, or the omission

of any statutory back-time in the judgment can be adjusted by a motion for judgment nunc

pro tunc . . . .”); see also In re Gomez, 268 S.W.3d 262, 264 (Tex. App.–Austin 2008, orig.

proceeding) (“[A] nunc pro tunc order is appropriate for fixing clerical errors in the record

as to the judgment the trial court actually rendered . . . .”); In re Daisy, 156 S.W.3d 922,

924 (Tex. App.–Dallas 2005, orig. proceeding) (“Because the trial court is required to award

credit for pre[-]sentence time served, the judge’s failure to do so violates a ministerial

duty.”).

       The court of criminal appeals has held that a defendant may file a petition for writ

of mandamus challenging a trial court’s denial of or refusal to rule on a motion for a nunc

pro tunc order to add back-time. See Ex parte Ybarra, 149 S.W.3d at 149; Ex parte

Deeringer, 210 S.W.3d 616, 617-18 & n.7 (Tex. Crim. App. 2006) (“[B]efore we will

entertain a claim of the denial of pre-sentence jail time credit, an applicant must first

attempt to correct the omission in the judgment by way of a motion nunc pro tunc, and that

if the convicting court should decline to rule on the motion, the applicant must seek a writ

of mandamus to the appropriate court of appeals to compel the convicting court to rule.”);

see also In re Daisy, 156 S.W.3d at 924 (“Further, if a motion for a nunc pro tunc order for

back time credit is filed and the trial judge fails to respond, relief may be sought by petition

for writ of mandamus to the court of appeals.”).

       2. Discussion

       Here, Rodriguez filed a nunc pro tunc motion, requesting that the trial court grant


                                               6
him additional credit for time served in a Mexican jail; however, the trial court has not ruled

on this motion. The record does not reflect that Rodriguez filed a petition for writ of

mandamus with this Court seeking to compel the trial court to rule on his nunc pro tunc

motion. See Ex parte Ybarra, 149 S.W.3d at 149; Ex parte Deeringer, 210 S.W.3d at 617-

18 & n.7; see also In re Daisy, 156 S.W.3d at 924. Because Rodriguez is entitled to all

pre-sentence time served in jail pursuant to article 42.03, section 2(a) of the code of

criminal procedure, the trial court violated its mandatory, ministerial duty to award

Rodriguez such credit.7 See TEX . CODE CRIM . PROC . ANN . art. 42.03, § 2(a)(1); see also Ex

parte Ybarra, 149 S.W.3d at 148; Collins, 240 S.W.3d at 928; In re Gomez, 268 S.W.3d

at 264; In re Daisy, 156 S.W.3d at 924. However, because the trial court has not ruled on

Rodriguez’s nunc pro tunc motion, we conclude that Rodriguez’s use of this direct appeal

to challenge the trial court’s calculation of his jail time credit is improper.8 See Ex parte

Ybarra, 149 S.W.3d at 149; Ex parte Deeringer, 210 S.W.3d at 617-18 & n.7; see also In

re Daisy, 156 S.W.3d at 924. Instead, this error should be corrected via a petition for writ

of mandamus. See Ex parte Ybarra, 149 S.W.3d at 149; Ex parte Deeringer, 210 S.W.3d

at 617-18 & n.7; see also In re Daisy, 156 S.W.3d at 924. Accordingly, we overrule his first



        7
          In Ex parte Rodriguez, the Texas Court of Crim inal Appeals held that the applicant was entitled “to
receive jail-tim e credit for the tim e between his arrest in Mexico and his return to the custody of TDCJ [Texas
Departm ent of Crim inal Justice] authorities.” 195 S.W .3d 700, 704 (Tex. Crim . App. 2006).

        8
            Ordinarily, “[a]ppellate courts have the power to reform whatever the trial court could have corrected
by a judgm ent nunc pro tunc where the evidence necessary to correct the judgm ent appears in the record.”
Asberry v. State, 813 S.W .2d 526, 529 (Tex. App.–Dallas 1991, pet. ref’d) (citing Rivera v. State, 716 S.W .2d
68, 71 (Tex. App.–Dallas 1986, pet. ref’d)); but see Ex parte Evans, 964 S.W .2d 643, 645 n.2 (Tex. Crim . App.
1998) (“Our previous case law illustrates that when a defendant has been denied credit for jail tim e to which
he is entitled, the preferred practice is for the trial court to enter a nunc pro tunc order authorizing credit for
the appropriate tim e.”); see also Zavala v. State, No. 13-98-395-CR, 2004 Tex. App. LEXIS 2270, at *15 n.5
(Tex. App.–Corpus Christi Mar. 11, 2004, no pet.) (not designated for publication). However, in the present
case, we do not have enough inform ation before us with which to accurately calculate the precise am ount of
jail tim e to which he is entitled.

                                                        7
issue on appeal.

B. “Beyond a Reasonable Doubt” Instruction During the Punishment Phase

       In his second issue, Rodriguez contends that the trial court committed reversible

error by failing to submit a “beyond a reasonable doubt” instruction at the punishment

phase of the trial with respect to extraneous-offense evidence introduced—specifically, an

allegation that Rodriguez had previously threatened to kill Pallasser. The State counters

by arguing that there was no evidence admitted at the punishment phase that required

such an instruction.

       1. Applicable Law

       At the punishment phase of a non-capital case, the use of extraneous-offense

evidence is governed by article 37.07 of the code of criminal procedure. Delgado v. State,

235 S.W.3d 244, 252 (Tex. Crim. App. 2007); see TEX . CODE CRIM . PROC . ANN . art. 37.07

(Vernon Supp. 2008). Under this article, evidence of extraneous offenses—acts of

misconduct not referenced in the charging instrument—is admissible at punishment for any

relevant purpose but only if the State can prove those offenses beyond a reasonable

doubt. TEX . CODE CRIM . PROC . ANN . art. 37.07, § 3(a)(1); Delgado, 235 S.W.3d at 252; see

Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999) (“In addition to the Rules of

Evidence, article 37.07[,] section 3(a) governs the admissibility of evidence during the

punishment stage . . . .”). This article is the “law applicable” to all non-capital punishment

proceedings and must be included in the punishment charge regardless of whether it was

requested. Delgado, 235 S.W.3d at 252.

       2. Discussion

       Here, the trial court did not include an article 37.07, section 3(a)(1) instruction in the


                                               8
punishment charge. See TEX . CODE CRIM . PROC . ANN . art. 37.07, § 3(a)(1). Moreover, the

record does not reflect that Rodriguez objected at trial to the exclusion of such an

instruction in the punishment charge. Nevertheless, Rodriguez argues that the instruction

was required because the trial court admitted all the evidence adduced during the guilt-

innocence phase at the punishment phase, including Pallasser’s testimony about an

alleged extraneous offense. The record reflects that Rodriguez’s trial counsel objected to

Pallasser’s testimony regarding Rodriguez’s alleged attempt to have her killed as being

nonresponsive to the State’s question. While Rodriguez’s trial counsel was in the middle

of his objection, Pallasser blurted out that she believed that Rodriguez could have sent

someone to kill her. The trial court sustained Rodriguez’s objection; thus, Pallasser’s

testimony regarding Rodriguez’s alleged ability to have her killed was not admitted in

evidence at either the guilt-innocence or the punishment phases of the trial.9 Rodriguez

does not direct us to, nor are we aware of, additional extraneous-offense evidence

admitted during the punishment phase.                 Therefore, because no extraneous-offense

evidence was admitted at the punishment phase, we hold that an article 37.07, section

3(a)(1) instruction was not required. See id. Accordingly, we overrule Rodriguez’s second

issue.

C. Prejudicial Photographs at the Punishment Phase

         In his third issue, Rodriguez asserts that the trial court committed reversible error

by allowing autopsy photographs of the victim at the punishment phase of the trial.

Specifically, Rodriguez contends that there was no dispute that he shot the victim, and that



         9
           The record dem onstrates that Pallasser’s testim ony regarding Rodriguez’s alleged ability to have
her killed was not referenced again during the punishm ent phase.

                                                     9
the State sought to introduce the photographs solely to inflame the jury. The State argues

that Rodriguez failed to preserve this issue for appeal by failing to object. The State further

argues that the trial court did not abuse its discretion in admitting the photographs.

       1. Standard of Review

       "The admissibility of a photograph is within the sound discretion of the trial judge."

Shuffield v. State, 189 S.W.3d 782, 786 (Tex. Crim. App. 2006). Therefore, following an

abuse of discretion standard, we should "do more than decide whether the trial judge did

in fact conduct the required balancing between probative and prejudicial values; the trial

court's determination must be reasonable in view of all relevant facts." Id. at 787 (internal

quotations omitted).

       2. Applicable Law

       Rule of evidence 403 provides that relevant evidence, which is usually admissible,

may be made inadmissible when its probative value is substantially outweighed by the

danger of unfair prejudice. TEX . R. EVID . 403. The rule 403 balancing test requires the

evaluation of the following non-exclusive factors: "(1) how probative the evidence is; (2)

the potential of the evidence to impress the jury in some irrational, but nevertheless

indelible way; (3) the time the proponent needs to develop the evidence; and (4) the

proponent's need for the evidence." Shuffield, 189 S.W.3d at 787 (citing Montgomery v.

State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1991) (op. on reh'g)). Specifically in the

context of photographic evidence, these elements have been encapsulated into the

following considerations:

       the number of photographs, the size of the photograph, whether it is in color
       or black and white, the detail shown in the photograph, whether the
       photograph is gruesome, whether the body is naked or clothed, and whether
       the body has been altered since the crime in some way that might enhance

                                              10
       the gruesomeness of the photograph to the appellant's detriment.

Id.; see Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995). "Generally,

photographs are admissible if verbal testimony about the matters depicted in the

photographs would be admissible and their probative value is not substantially outweighed

by any of the Rule 403 counter-factors." Threadgill v. State, 146 S.W.3d 654, 671 (Tex.

Crim. App. 2004).

       3. Discussion

       At the outset of our analysis of this issue, we address the State’s argument that

Rodriguez failed to object to the admission of the photographs at the punishment phase.

See TEX . R. APP. P. 33.1(a)(1); Moore v. State, 999 S.W.2d 385, 402 (Tex. Crim. App.

1999). "[A] specific objection is required to inform the trial judge of the basis of the

objection and afford him the opportunity to rule on it." Neal v. State, 150 S.W.3d 169, 178

(Tex. Crim. App. 2004) (quoting Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App.

1977)).

       [A]ll a party has to do to avoid the forfeiture of a complaint on appeal is to let
       the trial judge know what he wants, why he thinks himself entitled to it, and
       to do so clearly enough for the judge to understand him at a time when the
       trial court is in a proper position to do something about it.

Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).

       Here, Rodriguez objected to the admission of the photographs at the guilt-innocence

phase. In his objection, Rodriguez argued that the photographs were highly prejudicial and

cumulative of other evidence in the record.         See TEX . R. EVID . 403.     Later, at the

punishment phase, Rodriguez renewed his rule 403 objection to the photographs. The trial

court overruled Rodriguez’s objections to the photographs at both phases. We therefore

conclude that Rodriguez has preserved his complaint as to the admission of the

                                              11
photographs. See TEX . R. APP. P. 33.1(a)(1); see also Neal, 150 S.W.3d at 178; Lankston,

827 S.W.2d at 909.

        We must now determine whether the trial court abused its discretion in admitting the

photographs. During the guilt-innocence phase, Fulgencio Salinas, M.D., a pathologist,

used the photographs to explain his analysis of Cardenas’s autopsy conducted by Ruben

Santos, M.D. and to describe the injuries sustained by Cardenas.10 The State then

tendered the photographs—thirteen in all—for inclusion in the record. Rodriguez objected

to the photographs as being cumulative and highly prejudicial, see TEX R. EVID . 403, and

the trial court overruled Rodriguez’s objection. However, the trial court did limit the State

to only introducing photographs that were not cumulative; as a result, the State withdrew

several of the tendered photographs.

        On appeal, Rodriguez only complains about two of the photographs

admitted—State’s Exhibits 32 and 40. Rodriguez argues that the photographs were highly

prejudicial because:          (1) State’s Exhibit 32 “is a color photograph of the deceased

[Cardenas] who is bloody, swollen, and on an autopsy table”; and (2) State’s Exhibit 40 “is

a post[-]autopsy color photograph of the deceased with the skin pulled back from the chest

exposing the ribs, muscle tissue, and fat tissue.” Rodriguez further argues that these

photographs were not necessary because it was undisputed that he had shot Cardenas

and that Cardenas had died from the gunshot wounds.

        Both State’s Exhibits 32 and 40 are color photographs measuring three-and-one-half

inches by five inches. State’s Exhibit 32 depicts a gunshot wound Cardenas sustained to



        10
            The testim ony reveals that Dr. Santos died eight years prior to trial and, therefore, was not available
to testify as to the autopsy.

                                                        12
the neck. Cardenas is clothed in this picture, and the picture is not cumulative of other

evidence. State’s Exhibit 40, on the other hand, illustrates: (1) the size of the wound

caused by the bullet that passed through Cardenas’s muscle tissue; and (2) that Cardenas

sustained a fractured rib as a result of the bullet passing through.11 Dr. Salinas was unsure

if State’s Exhibit 40 depicted parts of the bullet lodged in Cardenas’s muscle tissue.

State’s Exhibit 40 is not cumulative of other evidence.                   Both of these pictures are

somewhat gruesome. That is to say, they are both disagreeable to look at, but they depict

nothing more than the reality of the brutal crime committed. See Shuffield, 189 S.W.3d at

787-88. Nonetheless, the photographs were probative of Rodriguez’s use of a deadly

weapon, the type of wounds sustained, and the brutality and seriousness of the crime,

which bears on the issues of guilt and punishment.

        In addressing similar photographs, the court of criminal appeals noted that:

        The photographs are powerful visual evidence, probative of various aspects
        of the State’s theory of the offense including the brutality and heinousness
        of the offense. Appellant must realize that it is precisely the quality which we
        describe as “powerful” which gives rise to his arguments that the
        photographs are prejudicially inflammatory. But when the power of the
        visible evidence emanates from nothing more than what the defendant has
        himself done we cannot hold that the trial court has abused its discretion
        merely because it admitted the evidence. A trial court does not err merely
        because it admits into evidence photographs which are gruesome.

Sonnier, 913 S.W.2d at 519 (citation omitted) (emphasis added).                          Because these

photographs are not overly gruesome and were necessary for the State in developing its

case, we find that the photographs did not pose the potential of impressing the jury in some



        11
          Dr. Salinas noted in his testim ony that by m easuring the size of the gunshot wound, investigators
can often determ ine the caliber of the firearm used. This statem ent is noteworthy because on Novem ber 30,
2006, Rodriguez and the State entered into a stipulation of evidence that the projectiles recovered from the
body of Cardenas during the autopsy were fired from a .41 Magnum Ruger Blackhawk handgun that was
turned over to the police by Rodriguez.

                                                    13
irrational way. See Shuffield, 189 S.W.3d at 788. Moreover, because the photographs

emanate “from nothing more than what the defendant [Rodriguez] has himself done,” we

cannot hold that the trial court has abused its discretion. See id. Accordingly, we overrule

Rodriguez’s third issue.

                                      IV. CONCLUSION

        Having overruled all of Rodriguez’s issues on appeal, we affirm the judgment of the

trial court.


                                                 ________________________
                                                 DORI CONTRERAS GARZA,
                                                 Justice

Publish.
TEX . R. APP. P. 47.2(b).
Opinion delivered and filed
this the 25th day of June, 2009.




                                            14
