                                                                                PD-1658-14
                           PD-1658-14                           COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                           Transmitted 12/19/2014 12:54:23 PM
                                                               Accepted 12/29/2014 9:39:39 AM
                                                                                 ABEL ACOSTA
              IN THE COURT OF CRIMINAL APPEALS                                           CLERK
                       OF AUSTIN, TEXAS


 EUGENE D. ESTERS,                    §
          Appellant                   §
                                      §       NO.
 VS.                                 §
                                      §
 THE STATE OF TEXAS,                  §
          Appellee                    §


 ON PETITION FOR DISCRETIONARY REVIEW FROM THE DECISION
   OF THE COURT OF APPEALS FOR THE SECOND DISTRICT OF
               TEXAS, AT FORT WORTH, TEXAS
                    IN CAUSE NO. 02-13-00219-CR
     AFFIRMING APPELLANT'S CONVICTION AND SENTENCE
                    IN CAUSE NO. 1263515D
              HON.ROBB CATALANO, PRESIDING
       FROM THE CRIMINAL DISTRICT COURT NO. THREE
                    OF TARRANT COUNTY



   APPELLANT'S PETITION FOR DISCRETIONARY REVIEW




                           Richard A. Henderson
                           State Bar No. 09427100
                      RICHARD A. HENDERSON, P.C.
                      100 Throckmorton Street, Suite 540
                            Fort Worth, Texas 76102
                           817-332-9602 - Telephone
                            817-335-3940 - Facsimile
                           richard(uirahenderson. corn

                         ATTORNEY FOR APPELLANT,
December 29, 2014           EUGENE D. ESTERS
                                            SUBJECT INDEX
TABLE OF AUTHORITIES.....................................................................................ii
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
STATEMENT OF THE CASE ................................................................................. 1
STATEMENT OF PROCEDURAL HISTORY.......................................................2
GROUNDSFOR REVIEW ......................................................................................2
REASONSFOR REVIEW .......................................................................................3
      GROUNDONE.................................................................................................3
      GROUNDTWO................................................................................................ 5
CONCLUSION AND PRAYER...............................................................................6
CERTIFICATE OF COMPLIANCE ........................................................................7
CERTIFICATEOF SERVICE..................................................................................7
APPENDICES...........................................................................................................8
        Appendix "A"
        (Opinion of the Court of Appeals Second District of Texas)
        Appendix "B"
        (Motion for Rehearing)
         Appendix "C"
         (Court's Order denying Appellant's Motion for Rehearing)
                                   TABLE OF AUTHORITIES


CASES

Crabtree v. State, 389 S.W.3d 820 (Tex. Crim. App. 2012) ................................... 5

Exparte White, 211 S.W.3d 316 (Tex. Crim. App. 2007)........................................ 5

Prudhoim v. State, 274 S.W. 3d 236 (Tex. App.— Houston 1" 2008).....................6

Wooten v. State, 400 S.W.3d 601 (Tex. Crim. App. 2013).......................................3

Wooten v. State, 400 S.W.3d 606 (Tex. Crim. App.2013)........................................ 5



CODES

TEX. PENAL CODE ANN. §31.03(a) (4)(a).................................................................. 5

TEXAS PENAL CODE 12.42.........................................................................................6




                                                       11
              STATEMENT REGARDING ORAL ARGUMENT

      Petitioner believes that oral argument would aid the court in deciding the

critical issue presented. The Court of Appeals and the State of Texas have

admitted that the error presented was committed by the trial court. Oral argument

would allow a full airing of the issue presented.



                          STATEMENT OF THE CASE

      On December 5, 2011, Appellant shot his estranged girlfriend, Jennifer

Johnson, in front of her condo in East Fort Worth, as her mother, Della Johnson

and several other witnesses looked on. Appellant also shot Della Johnson. (The

couple had been together for six years and had recently separated. Appellant was

sleeping in his vehicle in front of the condo. On the date in question, Jennifer had

car trouble and tried to use jumper cables to start the car but Appellant took the

cables and Jennifer and Della went to buy some new ones.              Jennifer was

attempting to start her car with the help of a neighbor, Carieta Cook, when

Appellant approached. Appellant began asking when he could see his child and

Jennifer responded that



                                          1
they would work something out. (RR3 :3 7). Appellant then began shooting. After

Appellant stopped shooting, he put the gun to his head and pulled the trigger, but

he was out of bullets. Appellant began screaming that a murder had been

committed on Shady Lane while holding a Bible. Police arrived and arrested

Appellant.


                   STATEMENT OF PROCEDURAL HISTORY

      The Court of Appeals issued its memorandum opinion on October 30, 2014.

Appellant's Motion for Rehearing was e-filed November 14, 2014 and was

overruled on November 20, 2014. This Petition for Discretionary Review is timely

if e-filed on or before December 22, 2014.


                           GROUNDS FOR REVIEW

GROUND ONE: Is telling a father that they will "work something out" by the

mother in response to a question of when the father can see his child sufficient to

invoke sudden passion and require a jury instruction on sudden passion?


GROUND TWO: What level of proof is necessary in order to prove that an out of

state conviction for grand theft is the equivalent of a third degree felony or higher

in order to enhance the Texas punishment?

                                          2
                           REASONS FOR REVIEW


GROUND ONE:


      Appellant argued to the Court of Appeals that in the overall context of

events, that this verbal exchange could have amounted to sudden passion which

would require that the issue be submitted to the jury. Wooten v. State, 400 S.W.3d

601 (Tex. Crim. App. 2013).

      In Wooten, the court said:

            A murder committed under the" immediate influence of sudden

      passion arising from an adequate cause" is a second-degree felony

      carrying a maximum punishment of twenty years' imprisonment.

      Sudden passion is "passion directly caused by and arising out of

      provocation by the individual killed" which arises at the time of the

      murder.

         Adequate cause is a "cause that would commonly produce a degree

      of anger, rage, resentment, or terror in a person of ordinary temper,

      sufficient to render the mind incapable of cool reflection." The

      defendant has the burden of production and persuasion with respect to
the issue of sudden passion. To justify a jury instruction on the issue

of sudden passion at the punishment phase, the record must at least

minimally support an inference:

       1) that the defendant in fact acted under the immediate

influence of a passion such as terror, anger, rage, or resentment;

      2) that his sudden passion was in fact induced by some

provocation by the deceased or another acting with him, which

provocation would commonly produce such a passion in a person of

ordinary temper;

       3) that he committed the murder before regaining his capacity

for cool reflection; and

      4) that a causal connection existed " between the provocation,

passion, and homicide."

       It does not matter that the evidence supporting the submission

of a sudden passion instruction may be weak, impeached,

contradicted, or unbelievable. If the evidence thus raises the issue

from any source, during either phase of trial, then the defendant has

satisfied his burden of production, and the trial court must submit the

issue in the jury charge— at least if the defendant requests it.
      In this case, Appellant was given a vague response by the deceased as to

when he could visit his child. Such a response could cause anger in an individual

that could cause anger or resentment. Appellant requested the issue and was denied

by the trial court, Wooten v. State, 400 S.W.3d 606 (Tex. Crim. App. 2013).

      The Court of Appeals in its opinion stated that the response by the deceased

was not adequate cause such that a jury instruction was required. Appellant asserts

that the Court of Appeals was wrong in this evaluation and that, even if considered

weak, the jury instruction was required.

GROUND TWO:

      Appellant objected to the submission in the punishment charge of a

California conviction of grand theft, contending that it was not the equivalent of a

third degree felony in Texas and Appellant submitted a proposed charge that

deleted the repeat offender notice which was refused by the trial court.

      Appellant showed to the trial court that the California offense was most

similar to a Texas state jail felony of Theft $1500420,000 under TEX. PENAL CODE

ANN. §31.03(a) (4)(a).

      State jail felonies cannot be used to enhance punishment as a repeat offender

under Texas Penal Code 12.42. See Exparte White, 211 S.W.3d 316 (Tex. Crim.

App. 2007); Crabtree v. State, 389 S.W.3d 820 (Tex. Crim. App. 2012) and

                                           5
Prudhoim v. State, 274 S.W. 3d 236 (Tex. App.— Houston 1" 2008).

      The Court of Appeals stated that since the California included prison time,

then the offense could not be the equivalent of a Texas State jail felony Appellant

would show that prison time does not a third degree felony or higher, make.


                          CONCLUSION AND PRAYER

      WHEREFORE, Appellant respectfully prays that this Court reverse the

judgment of the Court of Appeals and remand this cause to that court and order

that Appellant be given a new trial and for all other relief to which he is entitled.

                                        Respectfully Submitted,

                                        RICHARD A. HENDERSON, P.C.
                                        Two City Place
                                        100 Throckmorton Street, Suite 540
                                        Fort Worth, Texas 76102
                                        (Telephone) 817-332-9602
                                        (Telecopier) 817-335-3940
                                        E-mail: richar.cl(rahenderson. om

                                            /j~"' /-Y)/ il~

                                             Richard A Henderson
                                             State Bar No. 09427100

                                        ATTORNEY FOR APPELLANT
                     CERTIFICATE OF COMPLIANCE

      This document complies with the typeface requirements of Tex.R. App.

Proc. 9.4(e), because it has been prepared in a conventional typeface no smaller

than 14-point for text and 12-point for footnotes. This document also complies

with the word-count limitations of Tex.R.App.P. Rule 9.4(i), because it contains

1,456 words, excluding any parts exempted by Tex.R.App.Proc 9.4(i) (1), as

computed by the word-count feature of Microsoft Office Word 2010, the computer

program used to prepare the document.


                                    Richard A. Henderson


                        CERTIFICATE OF SERVICE

      A true copy of the Appellant's brief has been electronically served on

opposing counsel, Mr. Charles Mallin, Assistant District Attorney, Chief of

Appellant Section, Tarrant County District Attorney's Office, 401 W. Belknap

Street, Fort Worth, Texas 76196 and mailed U.S. Regular Mail to Appellant, Mr.

Eugene Esters, TDCJ #01856715, William B. Clements Unit, 9601 Spur 591,

Amarillo, Texas 79107-9606 on this the /      day of Decembr 2014.



                                             A. Henderson


                                        7
APPENDICES
     APPENDIX "A"

      OPINION OF
   COURT OF APPEALS
SECOND DISTRICT OF TEXAS
     FORT WORTH
                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-13-00219-CR

EUGENE D. ESTERS                                              APPELLANT
                                        V.

THE STATE OF TEXAS                                                  STATE


     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
                   TRIAL COURT NO. 1263515D



                       MEMORANDUM OPINION'


                                  I. Introduction
     In three issues, Appellant Eugene D. Esters appeals his conviction for

murder. We affirm.


     'See Tex. R. App. P. 47.4.
                     II. Factual and Procedural Background

      Esters lived with his girlfriend, Jennifer, for about four or five years. He

moved out of their apartment about a month before her murder. Even after his
move, he was allowed to stay there when Jennifer and her two children were

gone and allowed to come by and see their two-year-old daughter, Sara,2 in the
morning before Jennifer's mother, Della, took the children to school.

      On December 5, 2011, Della arrived back at the apartment after taking the

children to school to discover that Jennifer and Esters had been involved in an

argument about the ownership of a set of jumper cables. Shortly thereafter,

Della, who was a secretary at Jennifer's business, drove Jennifer to work and
later dropped her off at her apartment, noticing on the way to her own home that

Esters's truck was heading toward the apartment. Puzzled over why Esters
would be returning to Jennifer's apartment, Della called Jennifer, told her what

she had seen, and stayed on the line with her. Jennifer told Della that she saw

Esters enter the apartment garage, then get in his truck, park it, and wait there,

but she asked Della not to call the police. Della decided to return to the

apartment and stopped at a police substation on the way there but did not find

any officers present. After Della arrived back at the apartment, Jennifer and a

neighbor, Carrieta Cook, met Della at her car where Della could see Esters

      2   W use a pseudonym for the child's name. See Tex. R. App. P. 9.8.
                                        KA
sitting in his truck across the parking lot from Jennifer's apartment. Esters next

pulled his truck up behind the three women and said "Della, I wanted to know

when I'll be able to see Sara." Della relayed the message to Jennifer, who was
close by and who responded, "Gene, we will work out something." Without

saying anything else, Esters exited his truck, drew a gun from his pocket, and
shot Jennifer from several feet away; after she collapsed, Ester's approached

Jennifer and shot her again. He then confronted Della and said, "[N]ow go put

that on Facebook," and he shot her in the chest. Esters apparently then tried to

shoot himself under his chin, but when the gun did not fire, he said, "[D]amn, I

had a bullet for myself. . . . I killed the bitch, I told her I'd kill her." He then yelled
for someone to call 911. Esters next told Della, "[S]it [your] stupid ass down

before [you] bleed to death," and looking at Cook, he said "[B]itch, I ran out of
bullets." Esters then put the gun in his truck, shouted "religious slurs," and

stated, "I don't have anything else to live for." When the police arrived, he was

compliant, offered no resistance, and told the officer, "I'm not going to do

anything."

      A jury convicted Esters of murder and assessed his punishment at life in

prison. This appeal followed.

                                 Ill. Sudden Passion
      In his first issue, Esters asserts that the trial court committed fundamental

punishment charge error by denying his request for a sudden passion special

issue. The defendant requested that the jury be instructed that if "the Defendant

                                            3
has raised by a preponderance of the evidence the issue of sudden passion and

you so find then the punishment range for this offense is that of a second

degree," which was 2 to 20 years plus a fine. He further requested that "sudden
passion" be defined as "passion directly caused by and arising out of provocation

by the individual killed or another acting with the person killed which passion
arises at the time of the offense and is not solely the result of former
provocation." Esters argues that Jennifer's response—"[W]e will work something

out"—to his inquiry about seeing Sara "could have amounted to sudden passion

which would require that the issue be submitted to the jury." The State responds

that there is no evidence that the murder occurred under the immediate influence
of sudden passion arising from an adequate cause.

      A. Standard of Review
      "[A]II 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.

      B. Requirements for Submission

      An accused who successfully argues that murder was committed under the

immediate influence of sudden passion arising from an adequate cause reduces
the level of the offense from the first to the second degree, thereby reducing the

possible punishment range. Wooten v. State, 400 S.W.3d 601, 605 (Tex. Crim.

App. 2013), Trevino v. State, 100 S.W.3d 232, 237 (Tex. Crim. App. 2003). The

                                         4
instruction given to the Jury in this regard is required if some evidence raises the

issue, regardless of whether that evidence is contradicted, weak or impeached,

but is not required to be given if the evidence is so contested, weak, or incredible
such that it could not support a finding by a rational jury. Davis v. State, 268

S.W.3d 683, 693 (Tex. App.—Fort Worth 2008, pet. ref'd).            Further, if the
evidence, viewed in the light most favorable to the defendant, fails to raise the

issue of sudden passion from adequate cause, the defendant is not entitled to an

instruction. See Id. at 698.

      Certain evidentiary requirements are necessary for sudden passion to be

submitted to the jury. Those are: (1) that the defendant in fact acted under the
immediate influence of a passion such as terror, anger, rage, or resentment;

(2) that his sudden passion was in fact induced by some provocation by the
deceased or another acting with him, which provocation would commonly

produce such a passion in a person of ordinary temper; (3) that he committed the

murder before regaining his capacity for cool reflection; and (4) that a causal

connection existed between the provocation, passion, and homicide.             See

Wooten, 400 S.W.3d at 605. Sudden passion is more than ordinary anger and

does not include a cause of the defendant's own making. Hernandez v. State,

127 S.W.3d 206, 211 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd); Nance v.
State, 807 S.W.2d 855, 861 (Tex. App.—Corpus Christi 1991, pet. ref'd).

Further, the sudden passion must have arisen from adequate cause, which

requires some evidence of the condition of the accused's mind at the time of the
offense. Mitchell v. State, 191 S.W.3d 219, 224 (Tex. App.—San Antonio 2005,

pet. refd); Naasz v. State, 974 S.W.2d 418, 423 (Tex. App—Dallas 1998, pet.

ref d).
          C. Analysis

          With this legal backdrop, we will examine the evidence and determine if
the submission of a sudden passion instruction was required. The only evidence

proffered by Esters was the previously recounted exchange:

          [Esters to Della]—"Della, I wanted to know when I'll be able to see
          [Sara]."

          [Della to Jennifer]—"Jennifer, Gene wants to know when he'll be able
          to see [Sara]."
          [Jennifer to Esters]—"Gene, we will work out something."

          The second element under Wooten requires that the provocation "would
commonly produce such a passion in a person of ordinary temper." See Wooten,

400 S.W.3d at 605. Jennifer's response about working something out is not an

unreasonable response such as "you'll never see your child again." It cannot be

said that a person of ordinary temper would produce such sudden passion under

these circumstances, and Esters cannot meet his burden under this element.

Further, the fourth Wooten element requires that a causal connection exist

between the provocation, the passion, and the homicide. Id. Here, following the
murder, Esters attempted to shoot himself, and when this failed, he said "[D]amn,

I had a bullet for myself." This clearly indicates that this act was planned and that

he set out to kill himself after killing Jennifer, thus negating his attempt to
establish this fourth element of proof. Therefore, no error occurred in the

omission of a sudden passion special instruction, and Esters's first issue is

overruled.
                               IV. A Prior Felony

      In his second issue, Esters asserts that the trial court committed
fundamental charge error by submitting a special issue inquiring of a prior felony,

thereby enhancing punishment. Esters argues that a California conviction for

grand theft was not the equivalent of the type of felony required for punishment

enhancement in Texas. The State responds that the Texas Penal Code only

requires the State to prove that an out-of-state conviction was punishable in the
penitentiary of that State in order to meet the definition of "felony" for

enhancement purposes.
      A. Analysis

      Esters had been convicted of the offense of grand theft in California, which

he argued was similar to a Texas state jail felony of theft between $1500 and

$20,000, Tex. Penal Code Ann. § 31 .03(a)(4)(A), and that such state jail felonies

cannot be used for repeat offender enhancement purposes. See Ex Parte White,

211 S.W.3d 316 (Tex. Crim. App. 2007).

      Punishment for a first degree felony offense can be enhanced to life
imprisonment if it is shown that "the defendant has previously been finally

convicted of a felony other than a state jail felony. . . ." Tex. Penal Code Ann.

§ 12.42(c) (West 2011 & Supp. 2014). The code further articulates that

                                        7
      any conviction not obtained from a prosecution under this [Penal]
      [C]ode shall be classified as follows: (1) 'felony of the third degree' if
      imprisonment in the Texas Department of Criminal Justice or
      another penitentiary is affixed to the offense as a possible
      punishment; (2) 'Class B misdemeanor' if the offense is not a felony
      and confinement in a jail is affixed to the offense as a possible
      punishment.

Id. § 12.41(1)—(2) (West 2011) (emphasis added). Referring to this section, our
Court of Criminal Appeals has told us that

      [T]he Legislature enacted a statute to deal specifically with the
      classification for enhancement purposes of convictions obtained
      outside the Penal Code. . . . [T]here can be no doubt that the
      Legislature intended to make convictions for felonies in federal
      courts as well as courts of other states available for enhancement
      purposes.

Ex Parte Blume, 618 S.W.2d 373, 376 (Tex. Grim. App. 1981). These

convictions are contrasted with convictions whose punishment is confinement in
a jail. Specifically, "penitentiary" refers to facilities run by the Texas Department

of Corrections, that is, a facility run by the State of Texas, as opposed to a

"county jail run by the local sheriff." Smith v. State, 789 S.W.2d 590, 592 (Tex.
Crim. App. 1990) (Clinton, J. concurring). The same state prison—versus—county

jail distinction is made in California. See People v. Lopez, 218 Cal. App. 4th
Supp. 6, 160 Gal. Rptr. 3d 678, 681 (2013). Therefore, we must determine

whether Esters's out-of-state conviction resulted in confinement in a California

penitentiary, which would be classified then as a felony for enhancement

purposes. An examination of Esters's pen packet, contained in an exhibit

introduced by the State, indicates in the "Abstract Of Judgment" that he was the
subject of a "commitment to state prison." Therefore, this constitutes a "felony of

the third degree" for purposes of the penal code section 12.41 (1), and no charge

error occurred. Esters's second issue is overruled.
                              V. Autopsy Photos

      Esters argues in his third issue that the trial court erred by admitting
autopsy photos that were gruesome and unduly prejudicial.

      A. Standard of Review and Rule 403

      The standard of review for a trial court's admission of evidence is abuse of

discretion, and wide discretion is afforded to the trial judge. Green v. State, 934

S.W.2d 92, 101-03 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997);
Miller v. State, 196 S.W.3d 256, 267 (Tex. App.—Fort Worth 2006, pet. ref d);

Hale v. State, 140 S.W.3d 381, 395 (Tex. App.—Fort Worth 2004, pet. ref d).
The trial court's decision should be reversed on appeal only if there is a showing

of abuse of discretion. Green, 934 S.W.2d at 101-02; Miller, 196 S.W.3d at 267.

Only if the court's decision falls outside the "zone of reasonable disagreement"

has it abused its discretion. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim.

App. 1998) (op. on reh'g); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.

Crim. App. 1991) (op. on reh'g). This standard applies to the admission of

photographs. See Davis, 268 S.W.3d at 683.
      Evidence may be excluded under Texas Rule of Evidence 403 if its

probative value is substantially outweighed by the danger of unfair prejudice. But

this rule also favors the admission of relevant evidence, and such evidence is
presumed to be more probative than prejudicial. See Shuffield v. State, 189

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

      B. Analysis
      We begin our review with an examination of the autopsy photos in

question. Those photos include: two close-ups of head wounds, a close-up of
bullet fragments and two of unfragmented bullets, four close-ups of arm wounds,

a side wound, what appears to be a leg wound, and the front view of the head

and shoulders of the victim. All of the wound photos are "clean" in that no blood

is depicted and no internal tissue is shown. Dr. Lloyd White, a pathologist and

deputy medical examiner for Tarrant County, took the photographs. He
examined and photographed six wounds in connection with the formation of his

opinion that death resulted from "penetrating handgun wounds of the chest" and
that the manner of death was a homicide. He testified that he typically takes

photographs during autopsies to help him explain the results of the autopsy if he

is called to trial, such as occurred in this case. A review of his testimony reveals

that he explained to the jury the six wounds in question including their location,

entry and exit, and possible internal damage caused thereby.

      An examination of the case law in this area shows that much more graphic

autopsy results have been deemed admissible than the bullet wounds shown in
the subject photographs. We note that there is no depiction of dissection of the

body, removed organs, or exposed body cavities. For example, in Davis v. State,

313 S.W.3d 317 (Tex. Crim. App. 2010), a cross section of the victims tongue
was properly admitted when necessary to show an injury not otherwise visible.

In Rayford v. State, 125 S.W.3d 521 (Tex. Crim. App. 2003), depictions of

autopsy procedures, including removed organs, were properly admitted. Nothing
of this nature is contained in the autopsy photos in this case. Additionally,

      [a] court may consider many factors in determining whether the
      probative value of photographs is substantially outweighed by the
      danger of unfair prejudice, including: the number of exhibits offered,
      their gruesomeness, 31 their detail, 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.

See Davis, 313 S.W.3d at 331.

      Turning to the above listed factors, only eleven autopsy photographs out of
over 140 State's exhibits were introduced.             Under the commonsense
understanding of the word they cannot be said to be "gruesome"; they are
detailed only to the extent that they are well-photographed pictures of clean

wounds that depict nothing under the surface of the skin and are blown-up

pictures on boards for purposes of explanation by the assistant medical

examiner. The record does not indicate whether the photos were color or black-

and-white. All but one are close ups depicting no more of the body than

necessary; the photographs of the arm and leg suggest that the body is

uncovered but this is not shown in the photographs. Lastly, it would theoretically

      3Merriam Webster's Collegiate Dictionary defines "gruesome" as "inspiring
horror or repulsion."

                                         11
be possible, but more difficult, for the assistant medical examiner to testify about

the location and description of the wounds without the photographs.

         Considering the foregoing factors, the previously discussed case law
concerning the admission of autopsy photographs, and the importance of the fact

that these autopsy photos are simply not "gruesome," we hold that the trial court
did not abuse its discretion in admitting these photographs in connection with the

testimony of the assistant medical examiner in explaining the wounds and their

connection to the cause of death. Esters's third issue is overruled.

                                   VI. Conclusion

         Having overruled Esters's three issues, we affirm the judgment of the trial
court.

                                                    PER CURIAM
PANEL: MCCOY, J.; LIVINGSTON, C.J.; and MEIER, J.

LIVINGSTON, C.J., concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 30, 2014

                                          12
                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-13-00219-CR

Eugene D. Esters                          §   From Criminal District Court No. 3

                                          § of Tarrant County (1263515D)

v.                                        § October 3O,2014

                                          § Per Curiam

The State of Texas                        § (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court's judgment. It is ordered that the judgment of

the trial court is affirmed.
                                       SECOND DISTRICT COURT OF APPEALS

                                       PER CURIAM
    APPENDIX "B"

MOTION FOR REHEARING
                          IN THE COURT OF APPEALS
                      FOR THE SECOND DISTRICT OF TEXAS
                              FORT WORTH, TEXAS

                                   NO. 02-13-00219-CR


EUGENE D. ESTERS
     APPELLANT                                    From Criminal District Court No. 3

                                                  of Tarrant County
VS.                                        it
                                                  Trial Court Case No. 1263515D

THE STATE OF TEXAS,
     APPELLEE


                   APPELLANT'S MOTION FOR REHEARING
TO THE HONORABLE COURT OF APPEALS:
         COMES NOW, Eugene D. Esters, Appellant in the above-styled and numbered

appeal, and, pursuant to Rule 49.5(c) of the Texas Rules of Appellate Procedure, hereby

files this Motion for Rehearing, and asks the Court to reconsider and withdraw its opinion

of October 30, 2014 and shows as follows:


      1. Appellant respectfully requests the court to reconsider its opinion ruling against
         Appellant and withdraw its opinion and issue a new opinion granting him relief.




Appellant's Motion for Rehearing                                                     Page 1
      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully requests the

court to reconsider its opinion of October 30, 2014 and prays the court to withdraw its

opinion and submit a new opinion in favor of Appellant.

                                         Respectfully submitted,

                                         RICHARD A. HENDERSON P.C.
                                         100 Throckmorton Street, Suite 540
                                         Fort Worth, Texas 76102
                                         Telephone: 817-332-9602
                                         Facsimile: 817-335-3940
                                         richard(à,rcJ.he-4deson. corn



                                                 A. Henderson
                                         State Bar No. 09427100

                                         ATTORNEY FOR APPELLANT


                            CERTIFICATE OF SERVICE

      A true copy of the Appellant's Motion for Rehearing has been electronically served
on opposing counsel, Mr. Charles Mallin, Assistant District Attorney, Chief of Appellant
Section, Tarrant County District Attorney's Office, 401 W. Belknap Street, Fort Worth,
Texas 76196, via the State's e-mail address, coaappellatealertstarrantcounty.corn and
mailed, U.S. Regular Mail to Appellant, EugeneD Eçers, TDCJ #018567 15, William B.
Clements Unit, 9601 Spur 591, Amarillo, Texas ,10j-9606 pn,'4his the              day of
November 2014.


                                                  A. Henderson




Appellant's Motion for Rehearing                                                   Page 2
    APPENDIX "C"
    ORDER DENIED
MOTION FOR REHEARING
                                                                         FILE COPY




                         COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH
                              NO. 02-13-00219-CR
EUGENE D. ESTERS                                                     APPELLANT

                                         V.

THE STATE OF TEXAS                                                         STATE



     FROM CRIMINAL DISTRICT COURT NO.3 OF TARRANT COUNTY
                   TRIAL COURT NO. 1263515D



                                    ORDER



      We have considered the "Appellant's Motion For Rehearing."

      It is the opinion of the court that the motion for rehearing should be and is

hereby denied and that the opinion and judgment of October 30, 2014, stand

unchanged.

      The clerk of this court is directed to transmit a copy of this order to the
attorneys of record.

      DATED November 20, 2014.
                                                   PER CURIAM

PANEL: MCCOY, J.; LIVINGSTON, C.J.; and MEIER, J.
