                                   IN THE
                           TENTH COURT OF APPEALS


                                    No. 10-01-303-CR

    LARRY WAYNE MULLEN, JR.,
                                                             Appellant
    v.

    THE STATE OF TEXAS,
                                                             Appellee


                            From the 249th District Court
                               Johnson County, Texas
                                Trial Court # F34755



                                      OPINION


    Larry Wayne Mullen, Jr. pled guilty to one count of manslaughter. He let the jury decide

his punishment, and it assessed punishment at 20 years in prison and a $10,000 fine. Mullen

brings two issues on appeal regarding: 1) the propriety of the State’s closing argument; and 2)

the propriety of a photograph admitted into evidence. We affirm.

                                        BACKGROUND

    On the night of November 14, 2000, the Johnson County Sheriff’s Office was dispatched

to the home of Bonnie Jo and Larry Wayne Mullen, Jr. regarding a shooting. Sergeant Isles

was the first to arrive. When he arrived, a woman directed him to a weapon on the floor and

informed him “they” were in back. He pulled back a curtain to find Bonnie Jo on the floor
with a gunshot wound to her head. Mullen and his father had been trying to perform CPR on

Bonnie Jo. Isles called in EMS but it was too late. Bonnie Jo was dead.

                                       JURY ARGUMENT

     In his first issue, Mullen contends the State’s jury argument was outside the record. The

portion of the argument of which Mullen complains is as follows:

     Let me ask you this. Based on the evidence before you, should the brutal execution of
     a defenseless woman be trivialized by a probated sentence? Should this be–should this
     be, Bonnie, we don’t–we know it was horrible, we know you were pleading for your
     life.

After a comment by Mullen, his attorney objected, stating:

     Your Honor, I’m going to have to object to that. I don’t think there was any
     testimony whatsoever of what he’s saying as far as what she said or didn’t say, so I’m
     going to have to object to that[.] I think its inflammatory.

The trial court instructed the jury to “recall what the evidence was.”

     The State contends that Mullen’s issue was not preserved for our review. See TEX . R.

APP. P. 33.1(a)(2). Because there was no express ruling on Mullen’s objection, we cannot

consider the State’s preservation argument until we determine whether the trial court implicitly

ruled on the objection. Gutierrez v. State, 36 S.W.3d 509, 511 (Tex. Crim. App. 2001). It

appears from the record that when the trial court instructed the jury to recall the evidence, it

implicitly sustained Mullen’s objection and instructed the jury to limit its consideration to the

evidence. However, Mullen did not request a mistrial. “[A] defendant's failure...to pursue to

an adverse ruling his objection to a jury argument forfeits his right to complain about the

argument on appeal.” Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). See

Mathis v. State, 67 S.W.3d 918, 927 (Tex. Crim. App. 2002) (“[W]e decline to overrule

Cockrell, a case perfectly in line with Rule of Appellate Procedure 33.1 and the policies


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underlying preservation of error.”). Thus, Mullen has not preserved his complaint for our

review.

     Mullen’s first issue is overruled.

                                          PHOTOGRAPH

     In his second issue, Mullen contends that the trial court erred in admitting a photograph

because it created an unfair prejudice which outweighed any probative value it may have had.

The Texas Rules of Evidence provide that although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice. T EX . R. EVID .

403.

     The admissibility of a photograph is within the discretion of the trial court and is reviewed

for an abuse of discretion. Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App.

1999); Kelley v. State, 22 S.W.3d 642, 644 (Tex. App.—Waco 2000, no pet.). We will not

find error in a trial court’s evidentiary ruling unless it falls outside “the zone of reasonable

disagreement.” Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992); Montgomery

v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).

     In response to a Rule 403 objection to a photograph, the trial court must decide whether

the probative value of the photograph is substantially outweighed by the danger of unfair

prejudice. Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001); Najar v. State, 74

S.W.3d 82, 89 (Tex. App.—Waco 2002, no pet.). When making this determination, the trial

court should consider “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



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the crime in some way that might enhance the gruesomeness of the photograph to the

[defendant’s] detriment.” Reese v. State, 33 S.W.3d 238, 241 (Tex. Crim. App. 2000); Najar,

74 S.W.3d at 89.

     The State offered exhibits 7 and 8 at the same time through the testimony of Sergeant

Marvin Isles. The exhibits were 3.5" x 5" color photographs of Bonnie Jo. Exhibit 7 depicts

a trail and large pool of blood on the floor which appears to have flowed from Bonnie Jo’s

head. The head and clothed shoulders of Bonnie Jo are seen in the lower right corner of the

photograph. Exhibit 7 was offered to show that Bonnie Jo’s body had been moved from its

original location first by Mullen and then by EMS personnel. Exhibit 8 is a photograph of

Bonnie Jo’s face, covered in blood. It was offered to show her condition when Sergeant Isles

arrived at the Mullen’s home and to show the bullet wound to her head. Mullen only objected

to exhibit 8, arguing that its introduction would inflame the minds of the jurors, causing an

unfair prejudice to Mullen. A much larger (8" x 10") color photo of Bonnie Jo’s face, after it

had been cleaned to some extent, showing the bullet wound was admitted later during the

medical examiner’s testimony without objection.

     As would be any photograph depicting a gunshot wound to the head which caused the

death of that person, exhibit 8 is gruesome. However, we do not find that its probative value

was substantially outweighed by the danger of unfair prejudice. Thus, the trial court did not

abuse its discretion in admitting the photograph.

     Mullen’s second issue is overruled.

                                           CONCLUSION

     Having overruled Mullen’s issues on appeal, the trial court’s judgment is affirmed.



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