ORIGINAL                                                  Oral argument waived

                                PD-0462-15


                  IN THE TEXAS COURT OF CRIMINAL APPEALS

           ***************************************************»*&LutSVfeD IW
                                                               COURT OF CREMINAL APPEALS
                              SHAWN MAYREIS
                           Appellant-Petitioner                     MAY 29 2015
                                     V.

                                                               Abel Acosta, Clerk
                            THE STATE OF TEXAS
                           Appellee-Respondent

  *********************************************************************



                   FROM THE FOURTEENTH COURT OF APPEALS
                         CAUSE NO.   14-13-00769-CR


              APPEAL FROM THE 184THE JUDICIAL DISTRICT COURT
                OF HARRIS COUNTY, TEXAS/ CAUSE NO. 1340556
                   THE HONORABLE JAN KROCKER PRESIDING

        ***********************************************************




              APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

***************************************************************************


                                                                     FILED \H
                                                           COURT OF CRIMINAL APPEALS
                                     By:
                           Shawn Mayreis/ Pro Se                   MAY 2 9 2015
                            TDCJ-CID #1876310

                              Clm1m 632*                        Abel Acosta, Clerk
                            Kenedy, Texas 78119
                                     GROUNDS FOR REVIEW


                                          GROUND ONE


      The court of appeals erred when it held that the trial court did not
      abuse its discretion in admitting 17 autopsy photographs depicting
      Mr. Mayreis' two-month-old baby girl with several bruises including
      bruises on her scalp and her fractured skull.

                                          GROUND TWO


      The court of appeals erred when it held that the trial court did not
      abuse its discretion in denying Mr. Mayreis' motion for mistrial when
      the State elicited improper testimony from the homicide detective
      relating, to his post-arrest silence in violation of the Fifth and
      Fourteenth Amendments to the United States Constitution and Article
      I § 10 of the Texas Constitution.




Appellant's Petition for Discretionary Review - Page ii
                                      TABLE OF CONTENTS


GROUNDS FOR REVIEW                                                                 ii


TABLE OF CONTENTS                                                               iii


INDEX OF AUTHORITIES                                                                   v


IDENTITY OF JUDGE, PARTIES, AND COUNSEL                                         vii

STATEMENT REGARDING ORAL ARGUMENT                                               vii


STATEMENT OF THE CASE.                                                          vii

STATEMENT OF PROCEDURAL HISTORY..                                              viii

INTRODUCTION                                                                           1

STATEMENT OF THE FACTS                                                                 1

    1.   Autopsy Photographs.                                                          1

    2.   Testimony Implicating Right to Remain Silent                                  2

ARGUMENT                                                                               2

    I.   GROUND ONE


         The court of appeals erred when it held that the trial court did not
         abuse its discretion in admitting 17 autopsy photographs depicting
         Mr. Mayreis' two-month-old baby girl with several bruises including
         bruises on her scalp and her fractured skull                              3

         A.   Reasons for Granting Review              ...                         3

         B.   Applicable Law.                                                  ..3

         C.   Application and Analysis                                             5

         D.   Sufficient Harm is Shown for Reversal                                6

  II-    GROUND TWO


         The court of appeals erred when it held that the trial court did not
         abuse its discretion in denying Mr. Mayreis' motion for mistrial when
         the State elicited improper testimony from the homicide detectice
         relating to his post-arrest silence in violation of the Fifth and
         Fourteenth Amendments to the United States Constitution and Article
         I § 10 of the Texas Constitution                                      8

         A.   Reasons for Granting Review.                                     8

         B.   Applicable Law                                                   8



Appellant's Petition for Discretionary Review - Page iii
         C.   Application and Analysis                          10

         D.   Sufficient Harm is Shown for Reversal             12


PRAYER FOR RELIEF                                          -.   13


DECLARATION                                                     13


CERTIFICATE OF SERVICE                                          .14


APPENDIX:     Fourteenth Court of Appeals* Opinion




Appellant's Petition for Discretionary Review - Page iv.
                                    INDEX OF AUTHORITIES


CASES                                                                       PAGE


Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App.2007)                        4

Davis v. State, 313 S.W.3d 317, 331 (Tex.Crim.App.2010)..                ...4, 6

Dinkins v. State, 894 S.W.2d 330, 356 (Tex.Crim,App. 1985)                12, 13

Doyle v. Ohio, 426 U.S. 610, 617-20 (1976)                                     9

Dudley v. State, 548 S.W.2d 706, 707-08 (Tex.Crim.App. 1977)                   9

Erazo v. State, 144 S.W.3d 487, 489 (Tex.Crim.App.2004)                  ...4, 6

Fletcher v. Weir, 455 U.S. 603, 606-07 (1982).                                .9

Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex.Crim.App.2006)        3, 4, 5, 6

Hernandez v. State, 805 S.W.2d 409, 413-14 (Tex.Crim.App. 1990)                9

Logan v. State, 698 S.W.2d 680, 683-84 (Tex.Crim.App. 1985).              ....10

Ocon v. State, 284 S.W.3d 880, 884 (Tex.Crim.App.2009)                         9

Prible v. State/ 175 S.W.3d 724, 734 (Tex.Crim:-App.2005)                      6

Reese v. State, 33 S.W.3d 238, 239 (Tex.Crim.App.2000)                         6

Rolle v. State, 367 S.W.3d 746, 751 (Tex.App.—Houston [14th Dist.] 2012)       6

Sanchez v. State, 707 S.W.2d 575, 579-80 (Tex.Crim.App.1980)                   9

United States v. Blackstone, 56 F.3d 1143, 1146 (9th Cir. 1995)                4

United States v.. Fields, 483 F.3d 313, 354 (5th Cir. 2007)                    5

Veteto v. State, 8 S.W.3d 805-13 (Tex.App.—Waco 2000)                         12

Wainwright v. Greenfield, 474 U.S. 284, 292 (1986)                             9

Waldo v. State, 746 S.W.2d 750, 754 (Tex.Crim.App. 1988)              9, 10, 11

Warren v. State, 236 S.W.3d 844, 850 (Tex.App.—Texarkana 2007)                4

FEDFERAL CONSTITUTION


U.S. CONST, amend. V                                           ii, iii, 2, 8, 11

U.S. CONST, amend. XIV                                            ii, iii, 8, 11




Appellant's Petition for Discretionary Review - Page v
STATE CONSTITUTION


TEX.CONST, art. I § 10                                    ii, iii, 8, 11

FEDERAL STATUTES


28 U.S.C. § 1746                                                      13

STATE STATUTES


Tex.Pen.Code § 19.03(a)(8)                                           vii

Tex.Civ.Prac. & Rem.Code, Ch.        132                              13

STATE RULES


Tex.R.Evid. 401                                                        3


Tex.R.Evid. 403                                                  2, 3, 4

Tex.R.App.P. 44.2(a)                                                  12

Tex.R.App.P. 44.2(b)                                                   6

Tex.R.App.P. 66.3(e)                                                3, 8

Tex.R.App.p. 66.3(f)                                                   3

TeXiR.App.P. 68.1                                                      1

Tex.R.App.P. 68.4(d)                                                 vii




Appellant's Petiticn fcr Discretionary Review - Page vi
                        IDENTITY OF JUDGE/ PARTIES, AND COUNSEL


APPELLANT:'                                       Shawn Mayries, Pro Se
                                                  TDCJ-CID #1876310
                                                  Connally Unit
                                                  899 FM 632
                                                  Kenedy, Texas 78119

APPELLANT'S TRIAL ATTORNEY:                       Skip Cornelius
                                                  Attorney at Law
                                                  2028 Buffalo Terrace
                                                  Houston, Texas 77019

APPELLANT'S APPEAL ATTORNEY:                      Kurt B. Wentz
                                                  Attorney at Law
                                                  5629 Cypress Creek Parkway
                                                  Suite 115
                                                  Houston, Texas 77069

TRIAL JUDGE:                                      Honorable Jan Krocker
                                                  184th Judicial District Court
                                                  1201 Franklin, 17th Floor
                                                  Houston, Texas 77002

STATE'S TRIAL ATTORNEY:                           Tiffany Johnson
                                                  Assistant District Attorney
                                                  1201 Franklin, 4th Floor
                                                  Houston, Texas 77002

STATE'S APPEAL ATTORNEY:                          Alan Curry
                                                  Assistant District Attorney
                                                  1201 Franklin, 6th Floor
                                                  Houston, Texas 77002

                            STATEMENT REGARDING ORAL ARGUMENT


      Mr. Mayreis waives oral argument.           Tex.R.App.P. 68.4(d).

                                   STATEMENT OF THE CASE


      A grand jury indicted Mr. Mayreis for capital murder.              (1 CR 38.)   The

indictment alleged that he intentionally or knowingly caused the death of his

two-month-old daughter under Tex.Pen.Code § 19.03(a)(8) by (1) striking her

with, his hand, (2) striking her with an unknown object, or (3) having her head

strike an unknown object.        (l.CR 38.)     A jury.found Mr. Mayreis guilty on

August 8, 2013.      (1 CR 677.)     That same day, the trial court sentenced him to

life without parole.       (1 CR 682.)     The trial court certified his right to


Appellant's Petiticn for Discretionary Review - Page vii
appeal.     (1 CR 685.)     Mr. Mayreis timely filed notice of appeal.   (1 CR 687.)

The trial court appointed counsel for appeal after finding that he was

indigent.     (1 CR 689.)     On March 24, 2015, the court of appeals affirmed the

conviction and sentence.        (Attached Appendix, Court of Appeals' Opinion.)

                             STATEMENT OF PROCEDURAL HISTORY


      The court of appeals handed down its opinion on March 24, 2015.        Shawn

Mayreis v. The State of Texas, No. 14-13-769-CR (Tex.App.—Houston [14th

Dist.]).    Mr. Mayreis did not file a motion for rehearing.      This Court granted

Mr. Mayreis' an extension of time to file this Petition.        This Petition is due

by June 22, 2015.




Appellant's Petition for Discretionary Review - Page viii
                           COURT OF CRIMINAL APPEALS OF TEXAS
                                        AUSTIN,   TEXAS


SHAWN MAYREIS,                                                      CCA # PD-0462-15
TDCJ-CID #1876310,

          Appellant-Petitioner,
                                                                    COA # 14-13-769-CR
     V.


THE STATE OF TEXAS,


          Appellee-Respondent.                                      TC # 1340556

                     APPELLANT'S PETITION FOR DISCRETIONARY REVIEW


                                         INTRODUCTION


          On appeal, Appellant Shawn Mayreis challenged (1) the sufficiency of

evidence supporting his conviction, (2) the trial court's denial of his motion

for mistrial when the State improperly elicited testimony regarding his post-

arrest silence, and (3) the trial court's admission of 17 autopsy photographs.

(See Mr. Mayreis' Brief on Appeal, pp. 1-2.)              Here, Mr. Mayreis argues that

the court of appeals erred when it overruled his post-arrest silence claim and

his claim against the admission of the autopsy photographs.             He abandons his

sufficiency of evidence claims up to the point where they become relevant and

tie in with the two grounds raised here.            At the point where his sufficiency

of evidence claims become relevant and tie in with or intersect with the claims

raised here, Mr. Mayreis reurges those claims.             Appellant Shawn Mayreis did not

murder his baby girl.       He's innocent of the offense he was convicted of.          He

respectfully asks the Court to grant discretionary review, as authorized by

Tex.R.App.P. 68.1.

                                  STATEMENT OF THE FACTS


1.    Autopsy Photographs

          The State planned to introduce several autopsy photographs of Mr. Mayreis'

two-month-old baby girl during the testimony of the Assistant Medical Examiner,



Appellant's Petiticn for Discreticnary Review - Page 1
Dr. Morna Gonsoulin.*        The trial court held a hearing outside the jury's

presence to determine the admissibility of the autopsy photographs.                  Defense

counsel objected that all of the proposed exhibits—State's Exhibit #s

21-37—were not admissible because they were not relevant and violated Tex.R.

Evid. 403.     (4 RR 8.)     The trial court overruled counsel's objection.             (4 RR

8, 9.)

2.     Testimony Implicating Right to Remain Silent

        Detective Derek Fontenot took the stand.           After establishing that the

detective talked to Mr. Mayreis' daughter's mother for a second time on March

14, the State elicited testimony regarding the detective's initial pre-arrest

conversation with Mr. Mayreis and Mr. Mayreis' subsequent failure to make

himself available for a second pre-arrest statement on March 14.                 (3 RR 173-

74.)    Towards the end of the detective's testimony the prosecutor asked
whether Mr. Mayreis provided him with a statement after his arrest.                  The

detective answered he did not.          (3 RR 174.)      Counsel immediately approached

the bench.     In the bench conference that followed counsel made the court aware

that this question and answer violated Mr. Mayreis' Fifth Amendment right

against self incrimination.         The trial court indicated that it was going to

instruct the jury to disregard the question and answer.               The trial court then

denied Mr. Mayreis' motion for mistrial.            (3 RR 176.)    Later on in the trial,

the State again elicited more testimony regarding Mr. Mayreis' pre-arrest

silence over counsel's objection after a hearing outside the presence of the

jury.    (5 RR 61-66.)

                                           ARGUMENT



     * In this Petiticn, I've had to use citations to the record sparingly because all I had was
Mr. Mayreis1 Brief for Appellant, the Eburteenth Court of Appeals' Opinion, and Volute 5 of the
Reporter's Record. I could cnly use the citations that appellate counsel used and vhatever cLta^
ticns I needed to use from Volute 5. I apologize for any inconvenience.



Appellant's Petiticn far Discreticnary Review - Page 2
                                               I.


                                          GROUND ONE
                                           Restated


      The court of appeals erred when it held that the trial court did not
      abuse its discretion in admitting 17 autopsy photographs depicting
      Mr. Mayreis' two-month-old baby girl with several bruises including
      bruises on her scalp and her fractured skull.

A.   Reasons for Granting Review

      The court of appeals determined an important issue of state law in a way

that conflicts with the applicable decisions of this Court.            See Tex.R.App.P.

66.3(c).    The court of appeals has also so far departed from the accepted and

usual course of judicial proceedings, or so far sanctioned such a departure by

a lower court, as to call for an exercise of this Court's supervisory power.

See Tex.R.App.P. 66.3(f).

      The autopsy photographs admitted in Mr. Mayreis' trial of his two-month-

old baby girl were inadmissible because the danger of unfair prejudice

outweighed the probative value.          See Tex.R.Evid. 403.    The trial court abused

its discretion when it overruled Mr. Mayreis' objection and admitted the

photographs into evidence.         (4 RR 8, 9.)     The court of appeals erred when it

affirmed the trial court's decision.           (See Attached Appendix, Court of Appeals'

Opinion, pp. 11-14.)

B.   Applicable Law

      Evidence relevant for the purpose of Tex.R.Evid. 401 is subject to

exclusion under Tex.R.Evid. 403 if "its probative value is substantially

outweighed by the danger of unfair prejudice."           Tex.R.Evid. 403.   The "proba

tive value" of a particular piece of evidence refers to how strongly it serves

to make more or less probable any fact that is significant to the case coupled

with the proponent's need for that item of evidence.            Gigliobianco v. State,

210 S.W.3d 637, 641 (Tex.Crim.App.2006).            "Unfair prejudice" refers to evidence



Appellant's Petition for Discreticnary Review - Page 3
that "tempts a jury into finding guilt on grounds apart from the offense

charged."    Warren v. State, 236 S.W.3d 844, 850 (Tex.App.—Texarkana 2007).

      Evidence tending to improperly suggest a verdict is commonly, though not

necessarily, emotional in nature.          Casey v. State, 215 S.W.3d 870, 879 (Tex.

Crim.App.2007).      Evidence is prejudicial if it "appeals to the jury's

sympathies, arouses its sense of horror, provokes its instincts to punish, or

triggers other mainsprings of human action...."          United States v. Blackstone,

56 F.3d 1143, 1146 (9th Cir. 1995) (citation omitted).

      The admissibility of autopsy photographs over objection is within the

sound discretion of the trial court.           Davis v. State, 313 S.W.3d 317, 331 (Tex.

Crim.App.2010).      When conducting a Rule 403 analysis, a trial court must

balance (1) the inherent probative force of the proffered item of evidence

along with (2) the proponent's need for that evidence against (3) any tendency

of the evidence to suggest decision on an improper basis, (4) any tendency of

the evidence to confuse or distract the jury from the main issues, (5) any

tendency of the evidence to be given undue weight by a jury that has not been

equipped to evaluate the probative force of the evidence, and (6) the likeli

hood that presentation of the evidence will consume an inordinate amount of

time or merely repeat evidence already admitted.          Gigliobianco, 210 S.W.3d at

641-42 (emphasis added); see Erazo v. State, 144 S.W.3d 487, 489 (Tex.Crim.App.

2004).

      Other factors to be considered in deciding whether the probative force

outweighs its unfair prejudice include the number of photographs, their

gruesomeness, their detail, their size, whether they are in color or black-and-

white, whether they are close-up, whether the body is clothed or naked, and

other circumstances unique to the individual case.          Davis, 313 S.W.3d at 331

(citation omitted).



Appellant's Petiticn for Discreticnary Review - Page 4
 C.   Application and Analysis

       The court of appeals found that the photographs were gruesome.          (See

 Attached Appendix, Court of Appeals Opinion, p. 12.)           The detailed drawings

 and figures contained in the autopsy report that the trial court admitted

 before admitting the photographs eliminated the photographs' probative value.

 The photographs merely repeated this evidence already admitted.           The demonstra

 tive portions of the autopsy report describe the various injuries that were
sustained.     Dr. Gonsoulin did utilize the photographs during her testimony, but
she could just as readily referred to the drawings and figures already admitted

 in her report.     The first Gigliobianco factor weighs in favor of exclusion

because there was no inherent probative force of the photographs because the
admitted autopsy report contained detailed drawings and figures.            The sixth

Gigliobianco factor weighs in favor of exclusion because the photographs merely
repeated the detailed drawings and figures already admitted in the autopsy
report.

      What's more is Dr. Gonsoulin never even referred to State's Exhibit #s

23, 28, 29 and 33 during her testimony.            Their sole function was to "inducfe]

decision on a purely emotional basis."            See United States v. Fields, 483 F.3d

313, 354 (5th Cir. 2007).         The photographs did not enlighten the jury by
aiding the physician's testimony.          The third Gigliobianco factor weighs in
favor of exclusion because the evidence induced decision on an improper
basis—that is, a purely emotional basis.

      The fifth Gigliobianco factor also weighs in favor of exclusion.            This is

because they are so gruesome that they appealed to the jury's sympathies,

aroused its sense of horror, and provoked its instincts to punish,            the jury

was not equipped to evaluate the probative force of the evidence.           The

tendency of the      jury to give undue weight to the photographs weighs heavily


Appellant's Petition for Discretionary Review - Page 5
in favor of exclusion.

      The potential of the photographs to impress the jury in some irrational

yet indelible way favors exclusion.           See Erazo, 144 S.W.3d 487, 489.     Mr.

Mayreis' baby girl was only two months old at the time of her death.              Society's

natural inclination "to protect the innocent and vulnerable" has been referred

to in other cases favoring exclusion of infant autopsy photographs.              See Rolle

v. State, 367 S.W.3d 746, 751 (Tex.App.—Houston [14th Dist.] 2012) (citing

Reese v. State, 33 S.W.3d 238, 239 (Tex.Crim.App.2000)).

      The proponent's need for the photographs favors exclusion.             In addition

to Dr. Gonsoulin, the State called a forensic anthropologist and a child abuse

pediatrician.     (See 4 RR 115-37; see also 4 RR 140-155.)         The prosecution had

strong evidence and testimony other than the autopsy photographs to establish

death.    Thus, the second Gigliobianco factor favors exclusion.            See Rolle.

      The fourth Gigliobianco factor also weighs in favor of exclusion.             This

is because it cannot be said that these gruesome photographs did not distract

the jury from the main issues of whether Mr. Mayreis caused his child's death

or whether he caused her death intentionally or knowingly.            See Gigliobianco,

at 641-42 (stating that all six factors would blend together).

      Lastly, the additional Davis considerations also favor exclusion.             The

photographs were a.full. 8" x 10" in size.           They were in color.    They depicted

Mr. Mayreis' baby girl's naked body.           They showed the stitches she received

from hospitalization.       They were gruesome.

D.   Sufficient Harm is Shown for Reversal

      Harm in the admission of autopsy photographs is assessed under Tex.R.App.

P. 44..2(b).    See Prible v. State, 175 S.W.3d 724, 734 (Tex.Crim.App.2005).

This involves whether the reviewing court has fair assurance the error did not .

influence the jury or had but a slight effect on its verdict.              Id.



Appellant's Petiticn for Discreticnary Review - Page 6
     The autopsy photographs in this case influenced the verdict, and they did

not have "but a slight effect on its verdict."              Mr. Mayreis left his daughter

alone in the apartment for several minutes while he rode his bike to the

convenience store just outside the apartment complex.             (State's Exhibit

#19; 3 RR 170-76.)      The evidence showed someone else could have done this.

     In its opinion, the court of appeals relied heavily on Mr. Mayreis'

attorney's argument that he accidentally injured his daughter by improperly

administering CPR and that the State was required to prove beyond reasonable

doubt that his daughter's injuries were caused intentionally or knowingly.

(Attached Court of Appeals' Opinion, pp. 12-13.)              But the court of appeals did

not take into consideration Mr. Mayreis' argument on appeal that he was not

with the child every second of every hour of that day.              (See Mr. Mayreis' Brief

on Appeal, p. 19.)      In analyzing Mr. Mayreis1 claim under Rule 403, the court

of appeals did not consider Mr. Mayreis' issue #1 on appeal that the evidence
was insufficient to prove that Mr. Mayreis was the person who caused her

death.   (See Mr. Mayreis' Brief on Appeal, pp. 15-22.)

     What's more is that the child's injuries were not immediately visible.

(See e.g. 3 RR. Ill, 138.)       So even if she were hurt long before paramedics

arrived, no reasonable person would have known that she was hurt especially

if the child was in and out of consciousness.              It would just look like she was

taking a nap.     This is what happened here.            Mr. Mayreis didn't know how hurt

she actually was.      The photographs took the jury's attention off of the

necessary factfinding focus on deciding (1) whether Mr. Mayreis was the actual

person who actually caused her death and (2) whether he did so intentionally or

knowingly.

      Mr. Mayreis' two-month-old baby girl depicted in the photographs appears

tiny, innocent and vulnerable.         This encouraged the jury to express society's


Appellant's Petition far Discreticnary Review - Page 7
natural inclination to protect the innocent and the vulnerable.           See Rolle, at

751 (citing Reese, at 239).

                                              II.


                                          GROUND TWO
                                           Restated


      The court of appeals erred when it held that the trial court did not
      abuse its discretion in denying Mr. Mayreis' motion for mistrial when
      the State elicited improper testimony from the homicide detective
      relating to his post-arrest silence in violation of the Fifth and
      Fourteenth Amendments to the United States Constitution and Article
      I § 10 of the Texas Constitution.

A.   Reasons for Granting Review

      The court of appeals has decided an important question of state or federal

law in a way that conflicts with the applicable decisions of this Court of the

Supreme Court of the United States.           See Tex.R.App.P. 66.3(c).   The State

elicited improper testimony relating to Mr. Mayreis' post-arrest silence

immediately after it elicited testimony relating to his pre-arrest silence.

(3 RR 173-74.)     The State used a series of questions, that magnified Mr.

Mayreis' decisions to remain silent both before and after his arrest.           (Id.)

Before Mr. Mayreis was arrested, he became the target, of the investigation.

What's more is the court of appeals erred when, it did not consider in its

analysis the damaging effects the detective's testimony relating to Mr. Mayreis'

pre-arrest silence had on the improper testimony relating to his post-arrest

silence.    (See 3 RR 173-76; 5 RR 61-66.)          Under these circumstances, the court

of appeals erred when it did not reverse Mr. Mayreis' conviction and severe

sentence.


B.   Applicable Law

      No person shall be compelled in any criminal case to be a witness against

himself.    U:.S. CONST, amend. V; TEX.CONST, art. I § 10.         The Fourteenth

Amendment guarantee of due process prohibits comment on an accused's post-


Appellant's Petition for Discretionary Review - Page 8
arrest silence after Miranda warnings are given.             Doyle v. Ohio, 426 U.S. 610,

617-20 (1976); Fletcher v. Weir, 455 U.S. 603, 606-07 (1982).             The prohibition

against the use of a defendant's post-arrest silence is based on the unfair
ness of assuming one has a right to remain silent and then use that silence
against them.     Wainwright v. Greenfield, 474 U.S. 284, 292 (1986).          A
defendant's silence or negative reply to an officer's post-arrest inquiry

requiring an: immediate response is "clearly a tacit or overt expression and
communicates the defendant's thoughts in regards to the question asked."

Dudley v. State, 548 S.W.2d 706, 707-08 (Tex.Crim.App.1977).             On the other
hand, the Texas Constitution precludes a comment on a defendant's post-arrest

silence regardless of whether he has been given his Miranda warnings.              Sanchez
v. State, 707 S.W.2d 575, 579-80 (Tex.Crim.App. 1980).

     A trial court's denial of a motion for mistrial is reviewed under the

abuse-of-discretion standard.         See Ocon v. State, 284 S.W.3d 880, 884 (Tex.

Crim.App.2009).     Under this standard, the evidence is viewed in the light most
favorable to the trial court's ruling and the ruling is upheld if it falls

within the zone of reasonable disagreement.              Id^ The determination of whether
a given error necessitates a mistrial must be made by examining the particular
facts of each case.      Hernandez v. State., 805 S.W.2d 409, 413-14 (Tex.Crim.App.

1990).

     The potential prejudice resulting from a question, or comment, on a

defendant's post-arrest silence may be cured by an instruction to disregard.
Waldo v. State, 746 S.W.2d 750, 754 (Tex.Crim.App.1988).             An instruction to

disregard will be presumed effective unless the facts of the case suggest the
impossibility of withdrawing the prejudicial impression produced on the minds
of the jury.     Waldo, at 745.

      This Court has relied on six factors in determining whether an instruc-


Appellant's Petiticn for Discreticnary Review - Page 9
to disregard cured the prejudicial effect of an improper question relating to

a defendant's post-arrest silence:

     1.    The nature of the error;

      2.   The persistence of the prosecution in committing the error;

      3.   The flagrancy of the violation;

     4.    The particular instruction given;

      5.   The weight of the incriminating evidence; and

      6.   The harm to the accused as measured by the severity of the sentence.

See Waldo v. State generally.

      A motion for mistrial should be granted if it appears that the evidence

was so clearly calculated to inflame the minds of the jury or is of such a

damning character as to suggest it would be impossible to remove the harmful

impression from the jurors' minds.          See Logan v. State, 698 S.W.2d 680, 683-

84 (Tex.Crim.App.1985).

C.   Application and Analysis

      Here, the trial court did instruct the jury to disregard, but the

prosecutor's actions.were clearly calculated to inflame the minds of the

jurors.    See Logan.    The trial court's ruling was not within the zone of

reasonable disagreement.        The court of appeals stated that the evidence showed

that Mr. Mayreis did give statements to the police, emergency personnel and

emergency responders multiple times.           (Attached Appendix, p. 10.)    The court

of appeals also; stated that there, was no other mention by the State or any of

the State's witnesses of Mr. Mayreis* post-arrest silence.            (Id.)   Lastly, the

court of appeals found that the testimony likely had little, if any, effect on

the jury given the weight of guilt.           (Id.)   For these reasons, the court

overruled the complaint.        Mr. Mayreis disagrees with the court's decision.

      First, the fact that Mr. Mayreis gave other statements does not diminish


Appellant's Petiticn for Discreticnary Review - Page 10
his right to remain silent on other occasions.            Second, the State had already

elicited testimony regarding his pre-arrest silence and even brought his

pre-arrest silence back up later on in the trial.             (See 3 RR 173-74; see also

5 RR 61-66.)     The State would not have done that if such tactic was not going

to harm Mr. Mayreis' defense.         The problem that has occurred here is that the

State was allowed to use Mr. Mayreis' pre-arrest silence against him while

instructing the jury to disregard testimony regarding his post-arrest silence.

Such an instruction means nothing when the State is allowed to use pre-arrest

silence against the defendant.         What's more is that before Mr. Mayreis was

arrested he became the target of the investigation.            No one in their right

mind would talk to the police in that situation.

      Neither the Fifth and the Fourteenth Amendments to the United States

Constitution nor Article I § 10 of the Texas Constitution allows pre-arrest

silence to be used against a defendant under these facts as a means to

circumvent the prohibition of post-arrest silence.             Moreover, as stated

previously at the end of Subsection r(C), Mr. Mayreis was not in the apart

ment every minute of that day.         The jury could have believed that there was

a reasonable doubt as to whether Mr. Mayreis caused his daughter's death or

whether he did so intentionally or knowingly.             The evidence of guilt was not

overwhelming.

      Mr. Mayreis' conviction for capital murder carried a life sentence

without parole if found guilty.          The prosecutor's improper question had an

immediate bearing on the punishment he would receive if convicted.             Lastly,

the prosecutor's question with the manner in which it fell within a carefully

choreographed series of questions was conspicuously offensive—i.e.,

flagrant.    See Merriam-Webster's Collegiate Disctionary, p. 475 (11th ed.
2006).    Most if not all of the Waldo factors weigh in favor of granting the


Appellant's Petiticn far Discreticnary Review - Page 11
motion for mistrial.

D.   Sufficient Harm is Shown for Reversal


        Questions commenting on a defendant's post-arrest silence constitute

constitutional error.       Veteto v. State, 8 S.W.3d 805-13 (Tex.App.—Waco 2000).

Constitutional error requires reversal unless the reviewing court determines

beyond a reasonable doubt that the error did not contribute to the verdict or

punishment.     Tex.R.App.P. 44.2(a).       Harm analysis for this type of error

requires consideration of several factors^—most of which I addressed above in

Subsection 11(C) in order to show that the trial court abused its discretion

when it denied the motion for mistrial.           These factors include (1) the source

and nature of the error, (2) the extent to which the State emphasized it, (3)

the weight a jury would probably place upon the error, and (4) whether finding

the error harmless would encourage the State to repeat the error with

impunity.     See Dinkins v. State, 894 S.W.2d 330, 356 (Tex.Crim.App.1985).

        In this case, the State was the source of the error.        In a certain sense,

the State repeated or emphasized the error, when it elicited testimony relating

to Mr. Mayreis' pre-arrest silence.           (3 RR 173-74; 5 RR 61-66.)   Under these

circumstances, the state and federal constitutions prohibit use of pre-arrest

silence and post-arrest silence against a defendant in the manner conducted

here.     The State's improper question was the culmination of a series of

inquiries that intensified the prejudicial impact of the detective's response.

This gave the impression that Mr. Mayreis did not provide another statement

because he was guilty or had something to hide.

        Because there was evidence that another person had the opportunity to

inflict the fatal injuries and that if Mr. Mayreis did cause her death he did

not do so intentionally or knowingly, the third Dinkins factor weighs in Mr.

Mayreis' favor.      Lastly, finding this error harmless would encourage the State


Appellant's Petiticn for Discreticnary Review - Page 12
to repeat the error with impunity because such a decision would show that the

State has no boundaries in pursing unlawful convictions.            Most if not all of

the Dinkins factors weigh in Mr. Mayreis' favor.            It cannot be said beyond a

reasonable doubt that the error did not contribute to Mr. Mayreis' conviction

and severe punishment.

                                     PRAYER FOR RELIEF


      For these reasons, Appellant Shawn Mayreis respectfully asks the Court to

grant discretionary review, appoint counsel, order further briefing, and

reverse his conviction and punishment.           In the alternative, he asks the Court

to enter any other order it finds appropriate.

   SUBMITTED and SUBSCRIBED on this the ^)day of /^L/f^p /2015.
                                                          Respect fully submitted,


                                                          Shawn Mayreis, Pro Se
                                                          TDCJ-CID #1876310
                                                          Connally Unit
                                                          899 FM 632
                                                          Kenedy, Texas 78119

                                         DECLARATION


           "I, Shawn Mayreis, TDCJ-CID #1876310, presently incarcerated in
      the Texas Department of Criminal Justice Correctional Institutions
      Division at the Connally Unit in Karnes County, Texas, declare under
      penalty of perjury under Chapter 132 of the Texas Civil Practice and
      Remedies Code and 28 U.S.C. § 1746, that I have read this Petition
      for Discretionary Review, the facts stated in this Petition are true
      and correct, and I placed this Petition in the prison mailbox in a
      postpaid package on this day.

            "Executed on this the      <2>day of /fX/foL , 2015."

                                                          Shawn Mayreis




Appellant's Petition for Discreticnary Review - Page 13
                                  CERTIFICATE OF SERVICE


     Icertify that on this the *yJQ day of f^J^T ,2015, Iserved the
following parties with a true and correct copy of this Petition for Discre

tionary Review by U.S. mail through the prison mailbox in a postpaid package

to the addresses below:


     Harris County District Attorney's Office
     Appellate Division
     1201 Franklin
      Houston, Texas 77002

      State Prosecuting Attorney
      P.O.   Box 13046
     Capitol Station
     Austin, Texas 78711



                                                          Shawn Mayreis




Appellant's Petiticn for Discreticnary Review - Page 14
             APPENDIX


Fourteenth Court of Appeals' Opinion
Affirmed and Opinion filed March 24, 2015.




                                       In The


                     Jfaurtently Court of Appeals

                               NO. 14-13-00769-CR


                          SHAWN MAYREIS, Appellant

                                         V.

                         THE STATE OF TEXAS, Appellee


                    On Appeal from the 184th District Court
                               Harris County, Texas
                          Trial Court Cause No. 1340556



                                OPINION

      This is an appeal from a conviction for capital murder of a child under the
age of ten. Appellant challenges the sufficiency of the evidence supporting the
conviction, the trial court's denial of appellant's motion for mistrial, and the trial
court's evidentiary rulings on autopsy photographs. We affirm.
                    I.     Factual and Procedural Background

      The complainant A.M., born in January 2012, was the infant daughter of
appellant Shawn Mayreis. After her birth, A.M. left the hospital healthy, without
any abnormal medical problems. A.M. remained healthy and developed normally.
A.M.'s mother returned to work near the end of February 2012; appellant cared for
A.M. during the day. On March 8, at around 4:00 p.m., A.M.'s mother received a
phone call from appellant, who reported that A.M. was not breathing. The mother
instructed appellant to call 911. When the mother arrived home, appellant was on
the phone with the 911 operator and performing adult cardiopulmonary
resuscitation (CPR) on the child,1 who, according to the mother, looked blue. The
paramedics arrived around 4:50 p.m. and were able to achieve a pulse, although
A.M. was initially unresponsive.

      Medical personnel transported A.M. to Texas Children's Hospital in the
Medical Center where she presented with small bruises on her face, abdomen, legs,
and the middle of her back. In addition, the child had several large skull fractures,
multiple fractures to her anterior and posterior ribs, and retinal hemorrhaging.
A.M. was unable to breathe without medical support and was unresponsive to her
physical exam. Her brain was dying and swollen. Three days later she was
pronounced dead.

      Appellant informed emergency responders and medical personnel that A.M.
was fine in the morning, but began having difficulty breathing in the early
afternoon. Medical personnel found appellant's explanation of A.M.'s injuries
impossible and one of A.M.'s treating physicians found evidence that A.M. had
been in dire need of medical treatment for hours before appellant called emergency
services.

       Police arrested appellant and a grand jury indicted him for intentionally or
knowingly causing death to a child under ten years'of age. Appellant pleaded "not

1 Appellant was performing full-chest compressions on A.M. instead of performing the
compressions with two fingers.
guilty." At trial by jury, the child's mother testified along with several medical
experts. The medical experts all testified that the extent and severity of A.M.'s
injuries showed that they were intentionally inflicted. The jury found appellant
guilty as charged and he was automatically sentenced to life in prison without the
possibility of parole.

                               II.   Issues and Analysis


       A. Sufficiency of the Evidence

       In his first and second issues, appellant challenges the legal sufficiency of
the evidence to support his conviction. Specifically, he challenges the sufficiency
of the evidence that he caused A.M.'s death as well as the sufficiency of the
evidence that he did so intentionally and knowingly.

       In evaluating a challenge to the sufficiency of the evidence supporting a
criminal conviction, we view the evidence in the light most favorable to the
verdict.   Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The
issue on appeal is not whether we, as a court, believe the State's evidence or
believe that appellant's evidence outweighs the State's evidence. Wicker v. State,
667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned
unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson
v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact "is the
sole judge' of the credibility of the witnesses and of the strength of the evidence."
Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact
may choose to believe or disbelieve any portion of the witnesses' testimony.
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with
conflicting evidence, we presume the trier of fact resolved conflicts in favor ofthe
prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).
Therefore, if any rational trier of fact could have found the essential elements of
                                          3
the crime beyond a reasonable doubt, we must affirm.          McDuff v. State, 939
S.W.2d 607, 614 (Tex. Crim. App. 1997).

      A person commits capital murder if the person intentionally or knowingly
causes the death of an individual under ten years of age. Tex. Penal Code Ann. §§
19.02(b)(1), 19.03(a)(8) (West, Westlaw through 2013 3d C.S.); Martin v. State,
246 S.W.3d 246, 261 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Direct
evidence of the elements of the offense, including the identity of the perpetrator
and culpable mental state, is not required. Hooper v. State, 214 S.W.3d 9, 14 (Tex.
Crim. App. 2007); Earls v. State, 1§1 S.W.2d 82, 85 (Tex. Crim. App. 1986). The
jury is pennitted to make reasonable inferences from the evidence presented at
trial, and circumstantial evidence is as probative as direct evidence in establishing
the guilt of the actor. Hooper, 214 S.W.3d at 14-15.

      Viewed in the light most favorable to the verdict, the evidence at trial
showed:


      • A.M. had no abnormal medical problems prior to March 8.
      •   A.M.'s mother bathed A.M. in the evening on March 7 and did not notice
          any unusual bruises.
      • A.M. was healthy when her mother left for work on the morning of
          March 8.

      •   A.M. was in the sole care of appellant on March 8 from the time the
          child's mother left for work until emergency responders were called to
          the scene. Although appellant left the apartment for a short time in the
          morning, appellant was the only person taking care of A.M. that day.
      • Around 4:00 p.m. appellant called the child's mother and informed her
        A.M. was not breathing. At the mother's direction, appellant called 911.
      • The paramedics and emergency responders who answered appellant's
          911 call noticed a striking difference between the mother's response to
          A.M.'s condition and appellant's response. While the mother was
          hysterical, appellant appeared calm and unemotional.
The paramedics noticed bruising around A.M.'s diaper line, above one
eye, and on her stomach while they were transporting the infant to the
hospital.
A.M.'s autopsy revealed bruises, rib fractures, skull fractures, and
extensive hemorrhaging. A.M. had bruises on her face, above her
eyebrows, on her abdomen, on her legs, and in the middle of her back.
A.M. had several large skull fractures, including a crack that went all the
way across her skull. These injuries created hemorrhaging that caused
A.M.'s brain to swell. The swelling caused A.M. to lose oxygen and
blood to the brain, resulting in irreversible brain damage and death.
A.M.'s injuries were caused by significant blunt force trauma.        A.M.
suffered at least two violent blows, one above her right eye and one
behind her right ear. A.M.'s parietal bone bent to accommodate the
blows until it broke. Her parietal bone failed in multiple directions.
A.M.'s head injuries were the result of significant force. The amount of
force necessary to cause A.M.'s injuries is consistent with dropping a
baby down a flight of stairs or from a greater height than the average
height of a human being. None of A.M.'s head injuries could have been
caused by trying to get her to wake up or respond.
A.M. suffered extensive retinal hemorrhaging. Her retinas had detached
to the back of her. left eye in three areas and there were multiple
hemorrhages in her right retina.
The bridge under A.M.'s tongue was torn off. A treating physician
testified that the tear likely resulted from the forceful introduction of an
object, such as a bottle, into A.M.'s mouth.
A.M. had twenty-two rib fractures, including fractures to her anterior and
posterior ribs. The injuries to A.M.'s anterior ribs could have been
caused by improper CPR, but the injuries to her posterior ribs were not
typical of improper CPR. A.M.'s posterior rib fractures were consistent
with holding an infant forcefully around the ribs and shaking her or
hitting her head against something.
A.M. suffered shearing injuries, which were consistent with suffering a
violent trauma that caused her arms to flail.

The forensic anthropologist testified that, by virtue of the number of
injuries, it was unlikely A.M.'s injuries were caused by accidental
trauma.
      • A treating physician opined that A.M.'s injuries occurred at least an hour
         before medical treatment was sought. A.M. was pulseless and blue when
         paramedics arrived.       It would have taken hours for A.M. to
         "decompensate" to that state. Also, A.M.'s blood-coagulation status
         suggested her injuries occurred hours earlier.
      • The treating physician testified that A.M.'s condition was "unmistakably
        due to trauma." According to the physician, "the child's body has been
         battered and broken, but no history of trauma of any sort [was]
         provided." The physician testified that extreme violence was necessary
         to cause A.M.'s injuries and they were not all caused by one event.
         According to the physician, a person of reasonable intelligence familiar
         with children would know he was causing serious injuries to the baby
         that would cause the baby's death. The physician testified that the
         injuries were intentional.

            1.     Evidence Appellant Caused A.M.'s Death

      Appellant argues that there is no evidence that he caused A.M.'s death. He
points to evidence that he was away from the apartment briefly in the morning and
argues that someone could have entered the apartment and harmed A.M. in his
absence. He also argues that the evidence is insufficient to show that he caused
A.M.'s death because nothing in his history, relationship with A.M., or response to
her death suggested he caused her death.

      While the evidence showed that appellant left the apartment for
approximately six minutes on the day of A.M.'s death, in the version of events he
told emergency responders, medical personnel, and his wife, A.M. was healthy
until much later into the day. All of the medical experts testified that A.M.'s
injuries were serious and would have been immediately apparent. Based on this
evidence, a reasonable jury could have concluded that if an individual had entered
the apartment during the short time appellant left A.M. alone and caused these
injuries to A.M., appellant would have noticed A.M.'s injuries and would not have
told his wife, emergency responders, and medical personnel that A.M. was fine
                                           6
until the afternoon. Furthermore, police responders searched the apartment and did
not see any evidence of a break-in.     Viewed in the light most favorable to the
verdict, the evidence showed that an individual inflicted A.M.'s injuries while
A.M. was in appellant's care. The child's mother testified that appellant stated he
was the only one who cared for A.M. the day of the injuries.         The evidence is
sufficient to prove that appellant injured A.M. and that those injuries caused her
death.    See Herrera v. State, 367 S.W.3d 762, 770 (Tex. App.—Houston [14th
Dist.] 2012, no pet.); Bearnth v. State, 361 S.W.3d 135, 140 (Tex. App.—Houston
[1st Dist.] 2011, pet. refd) (holding that evidence was sufficient to support
conviction when adult had sole access to a child at the time the child's injuries
were sustained).

               2.    Evidence Appellant Acted Intentionally or Knowingly

         Appellant argues that even if he caused the injuries that killed A.M., the
evidence is insufficient for a rational jury to have concluded he did so intentionally
or knowingly. A person acts intentionally with respect to a result of his conduct
when it is his conscious objective or desire to cause the result. Tex. Penal Code
Ann. § 6.03(a) (West, Westlaw through 2013 3d C.S.); Herrera, 367 S.W.3d at
771. A person acts knowingly with respect to a result of his conduct when he is
aware his conduct is reasonably likely to cause the result. Tex. Penal Code Ann. §
6.03(b) (West, Westlaw through 2013 3d C.S.); Herrera, 367 S.W.3d at 770.
Proof of a culpable mental state may be inferred from any facts tending to prove its
existence, including the acts, words, and conduct of the accused. Hart v. State, 89
S.W.3d 61, 64 (Tex. Crim. App. 2002).

         The testifying medical experts all concluded that A.M.'s injuries were
intentionally inflicted. Appellant told emergency responders and medical personnel
that A.M. had trouble breathing, he attempted to get her to respond by hitting her
 head, and then performed CPR. But, A.M.'s severe injuries required more force
 than appellant's explanation allowed and many of her injuries were in locations
 that were not explained by the history appellant provided. The medical examiner,
 forensic anthropologist, and treating physician all found appellant's explanation of
 A.M.'s injuries impossible and testified that the injuries did not result from
 accidently administering improper CPR or attempting to get A.M. to respond. See
. Williams v. State, 294 S.W.3d 674, 683 (Tex. App.—Houston [1st Dist.] 2009, pet.
 ref d) (holding jury could infer intent from medical testimony that child's injuries
 were extensive, did not match appellant's explanation, and must have been
 sustained during an episode of abuse).

       The medical examiner testified that an accident was unlikely because of the
 amount of force necessary to cause A.M.'s injuries. See Herrera, 367 S.W.3d at
 770 (holding the severity of the injuries sustained by the infant constituted
 evidence of the appellant's intent). According to the medical examiner, the way
 A.M.'s skull fractured in multiple directions showed the fractures resulted from at
 least two blunt-trauma impacts from a significant force. The medical examiner
 testified that the amount of force necessary to cause A.M.'s skull fractures was
 inconsistent with the amount of force one would apply administering improper
 CPR or attempting to get a baby to respond. The amount of force necessary to
 cause A.M.'s skull fractures was more consistent with the impact of hitting a baby
 violently or dropping a baby down a flight of stairs. The forensic anthropologist
 testified that the sheer number of injuries A.M. sustained suggested the injuries
 were intentionally inflicted. In addition to bruising, shearing injuries, and a torn
 tongue, A.M. had twenty-two broken ribs. The medical experts testified that some
 of A.M.'s anterior ribs may have broken during improperly-administered CPR, but
 her posterior ribs would not have broken that way.
          The medical examiner testified that after the injuries occurred it would have
been immediately apparent that A.M. needed medical care. Yet, according to a
treating physician, A.M. was injured for hours before appellant sought help. Based
on this testimony, the jury could have concluded that appellant's delay in seeking
medical care constituted evidence that he knowingly or intentionally caused
A.M.'s death. A rational jury could have concluded from the number and nature of
the injuries A.M. suffered that the child's injuries were not the result of an accident
and appellant's implausible explanation for the injuries is circumstantial evidence
that he inflicted the injuries with the intent or knowledge that they would cause
A.M.'s death. See Bearnth, 361 S.W.3d at 140 (holding that appellant's inaccurate
explanation of injuries was circumstantial evidence of guilt). Based on testimony
from the medical examiner, anthropologist, and treating physician that A.M.'s
injuries resulted from violent and intentional action, the jury could have concluded
that A.M. could not have suffered those injuries unless appellant inflicted them
knowingly or intentionally.

          The evidence is sufficient for the jury to have come to the rational
conclusion that appellant intentionally or knowingly caused A.M.'s death. See
Herrera, 367 S.W.3d at 770. Appellant's first and second issues are overruled.
See id.

          B. Testimony Regarding Appellant's Post-Arrest Silence

          In appellant's third issue, he asserts that the trial court abused its discretion
in overruling his motion for mistrial after the State elicited a comment about
appellant's post-arrest silence.

          We review a trial court's denial of a motion for mistrial under the abuse-of-

discretion standard. See Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App.
2009). Under this standard, we view the evidence in the light most favorable to the
                                              9
trial court's ruling and uphold the ruling if it falls within the zone of reasonable
disagreement. Id. A mistrial is a remedy intended for extreme circumstances,
when prejudice is incurable and less drastic alternatives have been explored. See
id. In determining whether a prejudicial event was so harmful as to warrant a
mistrial, we consider the prejudicial effect, any curative measures taken, and the
certainty of conviction absent the prejudicial event. See Hawkins v. State, 135
S.W.3d 72, 77 (Tex. Crim. App. 2004).           Generally, a prompt instruction to
disregard by the trial court Will cure the error associated with improper and
prejudicial evidence, unless it appears the evidence was so clearly calculated to
inflame the minds of the jury or is of such a damning character as to suggest it
would be impossible to remove the harmful impression from the jurors's minds.
See Logan v. State, 698 S.W.2d 680, 683-84 (Tex. Crim. App. 1985).

      The prosecutor asked an investigator if appellant made a statement after he
was arrested and the officer testified that appellant did not.     The question and
answer were brief and the trial was immediately halted after the question was
answered. See Ludwig v. State, 428 S.W.3d 344, 350-51 (Tex. App.—Amarillo
2014, no pet.) (holding that instruction to disregard cured prejudice when trial
court immediately halted trial and issued thorough instruction to disregard). There
was no other mention by the State or any of the State's witnesses of appellant's
post-arrest silence.   Moreover, the evidence showed that appellant did give
statements to the police, emergency responders, and medical personnel at multiple
times throughout their response and investigation.        The trial court adopted a
curative measure and instructed the jury to disregard the testimony. Finally, the
investigator's answer likely had little, if any, effect on the jury given the weight of
the evidence of appellant's guilt. Appellant made several statements indicating
that A.M. was in his sole care when her injuries occurred. Evidence of the nature


                                          10
and severity of A.M.'s injuries showed that the injuries were intentionally inflicted.
The sole remark on appellant's silence was not so severe as to render the timely
curative instruction ineffective. See Archie, 221 S.W.3d at 700. We conclude that

the trial court did not abuse its discretion in denying appellant's motion for
mistrial. See id. Appellant's third issue is overruled.

      C. Autopsy Photographs

      In his fourth issue, appellant argues that the trial court abused its discretion
in admitting, over appellant's objection, approximately twenty photographs from
the autopsy on A.M.'s body. Appellant argues that the probative value of these
photographs was substantially outweighed by the danger of unfair prejudice. In
particular, appellant argues that because drawings and figures from the autopsy-
report had been admitted into evidence, the photographs were unnecessary to
display A.M.'s injuries.

      We review a trial court's ruling on the admissibility of evidence under an
abuse-of-discretion standard. See Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim.
App. 2010).     Texas Rule of Evidence 403, entitled. "Exclusion of Relevant
Evidence on Special Grounds," states:

      Although 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. Rule 403 favors the admission of relevant evidence and carries
a presumption that relevant evidence will be more probative than prejudicial.
Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (op. on reh'g).
A proper Rule 403 analysis by either the trial court or a reviewing court includes,
but is not limited to, the following factors: (1) the probative value of the evidence;
(2) the potential to impress the jury in some irrational, yet indelible, way; (3) the
time needed to develop the evidence; and (4) the proponent's need for the
evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004). In the
context of the admission of photographs, we also consider the number of
photographs, their size, whether they are in color or are black and white, whether
they are gruesome, whether any bodies are clothed or naked, and, when applicable,
whether the body has been altered by autopsy. Id.

      During the medical examiner's testimony, the State introduced Exhibits 21
through 31 and 33 through 39. These exhibits are color photos from the autopsy
depicting A.M.'s body as it appeared before the autopsy was conducted, the
bruises, including several photographs of the bruises on the scalp, and photographs
of several angles of the fractured skull.      The medical examiner used these
photographs to show the jury the extent and severity of A.M.'s injuries. Harris v.
State, 661 S.W.2d 106, 107 (Tex. Crim. App. 1983) (holding autopsy photographs
were admissible where pictorial evidence helped jury understand verbal
testimony).

      The medical examiner explained that a significant amount of force was
necessary to cause the skull fractures. She testified that the force was greater than
would be associated with the explanation appellant provided. Particularly in light
of appellant's arguments that A.M.'s injuries occurred as a result of his utilization
of improper CPR technique, the photographs had significant probative value to
prove to the jury that A.M.'s injuries did not result from improper CPR or
attempting to get A.M. to respond. The images depicting the photographs of the
dead infant's body are gruesome, and the medical examiner used the images
throughout her lengthy testimony.       These facts weigh against admitting the
photographs, but the trial court does not abuse its discretion by admitting
photographs of the victim into evidence merely because they are gruesome.

                                          12
r Sonnier v. State, 913 S.W.2d 511, 518-19 (Tex. Crim. App. 1995). Appellant
  argued that he accidentally injured A.M. by improperly administering CPR, and
  the State was required to prove, beyond a reasonable doubt, that A.M.'s injuries
  were caused intentionally or knowingly. See Richards v. State, 54 S.W.3d 348,
  350 (Tex. App.—Houston [1st Dist.] 2001, pet. ref d). The State's evidence that
  the injuries were not caused by improper CPR or attempting to get A.M. to respond
  was that A.M.'s injuries were inconsistent with these proffered explanations. The
  State had to provide the jury with evidence of the injuries A.M.'s suffered. See
  Gallo v. State, 239 S.W.3d 757, 763 (Tex. Crim. App. 2007) (holding that
  gruesome photographs were probative to show the full extent of the injuries
  appellant inflicted on the victim).      The autopsy photographs were probative
  evidence of A.M.'s injuries. Appellant argues that the State could have presented
  sketches of A.M.'s injuries to make these points to the jury.

        The trial court did not abuse its discretion in allowing the State to show the
  specifics of the injuries to the jury to prove that A.M.'s injuries did not result from
  improper CPR. While drawings could show the places of injuries, they could not
  show the jury the severity of the injuries or the extent of the injuries. See Herrera,
  367 S.W.3d at 777 (holding that probative value of gruesome autopsy photographs
  was not substantially outweighed by prejudice where photos showed baby likely
  did not die from shaking). Having examined each contested photograph in the
  context of the entire record and the applicable standard of review, we hold that the
  trial court did not abuse its discretion by concluding that the probative value of the
  photographs was not substantially outweighed by the potential for unfair prejudice
  and admitting them into evidence. See id. We overrule appellant's fourth issue.




                                            13
                                        III.         Conclusion


          The evidence is sufficient to support appellant's conviction for capital
    murder of a child under the age of ten. The trial court did not abuse its discretion
    in denying appellant's motion for mistrial after the State elicited improper
    testimony relating to appellant's post-arrest silence, nor did the trial court abuse its
    discretion in admitting autopsy photographs into evidence.

          The judgment of the trial court is affirmed.




                                               /s/        Kem Thompson Frost
                                                          Chief Justice



    Panel consists of Chief Justice Frost and Justices Christopher and Busby.
>   Publish —Tex.R. App. P. 47.2(b).




                                                     14
                                                                   March 24, 2015




                                 JUDGMENT

                 OJJie iifinurteentli Court nf Appeals
                         SHAWN MAYREIS, Appellant

NO. 14-13-00769-CR                          V.

                       THE STATE OF TEXAS, Appellee




     This cause was heard on the transcript of the record of the court below.
Having considered the record, this Court holds that there was no error in the
judgment. The Court orders the judgment AFFIRMED.
      We further order appellant pay all costs expended in the appeal.
      We further order this decision certified below for observance.
                                                                                                  FILE COPY

      Justices                                                                                           Chief Justice

 William J. Boyce                                                                                  Kem Thompson Frost
Tracy Christopher
Martha Hill Jamison                                                                                         Clerk

 Sharon McCally                                                                                    Christopher a. Prine
  J. Brett Busby
  John Donovan
  Marc W. Brown
                                       jftrortottilj (ftmtrt of Ajrjreate                           Phone 713-274-2800



     Ken Wise                                     301 Fannin, Suite 245                            Christopher Prine, Clerk
                                                  Houston, Texas 77002


                                                Tuesday, March 24, 2015


                          NOTICE OF OPINION DISTRIBUTION


     Shawn Mayreis                                           Dan McCrory
    #1876310                                                 Assistant District Attorney
    Connain Unit                                             1201 Franklin, Suite 600
    899 FM 632                                               Houston, TX 77002
    Kenedy, TX 78119                                         * DELIVERED VIA E-MAIL *


    Kurt B. Wentz
    5629 FM 1960 West
    Suite 115
    Houston, TX 77069
    * DELIVERED VIA E-MAIL *


    RE:           Court of Appeals Number:      14-13-00769-CR
                  Trial Court Case Number:      1340556


    Style:        Shawn Mayreis
                  v.

                  The State of Texas


                  Please be advised the Court today issued an opinion which AFFIRMED the above cause.

            You       may     obtain    a     copy     of     the  Court's    opinion  and judgment    at
    http://www.search.txcourts.gov/docketsrch.aspx?coa—coal4&s=ic. On the request of any entity listed in
    Rule 48.1, a paper copy of the opinion will be mailed to that entity. For more information about a
    particular case, please visit the Court's website at http://www.txcourts.gov/14thCOA.



                                                                CHRISTOPHER A. PRINE, CLERK


                                                                                           Ausf




    cc:          Olen Underwood (DELIVERED VIA E-MAIL)
                 Judge, 184th District Court (DELIVERED VIA E-MAIL)
                 Harris County, District Clerk, Criminal Division (DELIVERED VIA E-MAIL)
