                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00010-CR



         CATRINA MALDONADO, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 235th District Court
                 Cooke County, Texas
             Trial Court No. CR11-00316




       Before Morriss, C.J., Carter and Moseley, JJ.
               Opinion by Justice Carter
                                             OPINION
           On September 10, 2011, Nathan De Alejandro, a four-year-old child, suffered severe,

third-degree burns covering sixty percent of his body. Precisely what caused Nathan’s injuries,

which ultimately led to his death on September 24, 2011, remains a mystery. What is known,

however, is that Nathan lived for fourteen days after suffering these severe injuries; that during

those fourteen days, Nathan received no professional medical attention; and that Nathan died as a

direct result of these burns and their related complications. It was not until Nathan stopped

breathing on September 24, 2011, that his mother, Catrina Maldonado, finally sought assistance

for her child. Maldonado pled guilty to the crime of injury to a child by omission1 and elected to

have a Cooke County2 jury determine her punishment. She was sentenced to life imprisonment.

During her punishment trial, Maldonado objected to the admission of a number of photographs

depicting the nature and extent of the burn wounds that covered Nathan’s body at the time of his

death. On appeal, Maldonado claims that the trial court abused its discretion (1) in admitting the

photographs and (2) in failing to adequately balance the probative value of the photographs

against their unfair prejudicial effect as required by Rule 403 of the Texas Rules of Evidence.

See TEX. R. EVID. 403. We overrule both points of error and affirm the trial court’s judgment.




1
    See TEX. PENAL CODE ANN. § 22.04 (West Supp. 2014).
2
 Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are
unaware of any conflict between precedent of the Second Court of Appeals and that of this Court on any relevant
issue; however, we have applied the Second Court’s precedent where appropriate. See TEX. R. APP. P. 41.3.

                                                          2
I.     The Facts

       In the early morning hours of September 24, 2011, Cooke County Emergency Medical

Services (EMS) received a call concerning a child in respiratory distress; when they arrived on

the scene, they found Maldonado’s neighbor, Sue Branch, performing CPR on Nathan. EMS

personnel were unable to resuscitate Nathan, and he was eventually pronounced dead at the

hospital.

       On September 10—fourteen days before EMS was summoned for assistance—

Maldonado left Nathan in the care of her boyfriend, Johnny Earl Alexander, while she went to

work. At 11:03 a.m. on September 10, Alexander called Maldonado and told her that Nathan

had been burned in the bathtub. In reality, sixty percent of Nathan’s body was covered with

primarily third-degree burns.     While certain aspects of Maldonado’s account of the events

preceding Nathan’s death changed from the time she initially spoke to the police on

September 24 to the time she testified at trial, one fact remained consistent throughout—during

the fourteen days between the time Nathan was burned and his death, Nathan received no

professional medical treatment for his burn injuries.

       On September 21, 2014, three days before EMS was contacted, the police were at

Maldonado’s home looking for Alexander’s brother on an unrelated matter. Officer George

Courtney, one of the officers at Maldonado’s home on September 21, said he saw a child

wrapped from head to toe in blankets. According to Courtney, whenever the child was touched

or moved, he made sounds indicating that he was in “much distress and in pain.” In describing

the sounds of distress, Courtney testified,

                                                 3
        I have children, most of us do, but there’s different cries and different screams.
        You could just tell that every time that the bed would move or a blanket was
        moved that he was wrapped in, you could tell that there was some type of pain
        going on from -- from the voice.

Courtney had no doubt that the child needed immediate medical attention. Maldonado told

Courtney that the child had a very bad case of the flu, so Courtney and the other officers kept

their distance for fear of contagion. Maldonado also told Courtney that Alexander’s parents

were taking Nathan to the doctor that day. Courtney had her use his cell phone two or three

different times to call Alexander’s parents to make sure they were coming. Courtney testified

that, had Alexander’s parents not arrived to take the child, he believed to see a doctor, he would

have summoned EMS to the scene that day

        Maldonado was convicted, on her guilty plea, of injury to a child for failing to seek

medical attention for Nathan; as previously noted, she was sentenced to life in prison. In a

separate proceeding, Alexander was also convicted of injury to a child and sentenced to life

imprisonment. 3

II.     The Law

        We review a trial court’s ruling on the admissibility of evidence for an abuse of

discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g).

“That is to say, as long as the trial court’s ruling was at least within the zone of reasonable

disagreement, the appellate court will not intercede.” Id.




3
Alexander’s conviction is on appeal to the Eighth Court of Appeals under appellate cause number 08-14-00113-CR.
Alexander’s parents were also charged with neglect in connection with Nathan’s death.
                                                      4
       Under the Texas Rules of Evidence, relevant evidence is generally admissible. TEX. R.

EVID. 402. Article 37.07, Section 3(a)(1) of the Texas Code of Criminal Procedure, governing

the admissibility of evidence during the punishment phase of a non-capital trial, states,

“Regardless of the plea and whether the punishment be assessed by the judge or the jury,

evidence may be offered by the state and the defendant as to any matter the court deems relevant

to sentencing . . . .” TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2014). In

discussing the practical effect of Article 37.07, the Texas Court of Criminal Appeals stated,

       [U]nder Article 37.07, the admissibility of evidence in a non-capital trial is a
       matter of policy, including the policy of giving complete information to the jury
       to allow it to tailor an appropriate sentence for the defendant. The result is that
       what is relevant for the jury to hear during punishment is determined by whatever
       is helpful to the jury.

Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007) (citation omitted). With respect to

the relevance of photographic evidence, the Court of Criminal Appeals further instructs,

       A photograph should add something that is relevant, legitimate, and logical to the
       testimony that accompanies it and that assists the jury in its decision-making
       duties. Sometimes this will, incidentally, include elements that are emotional and
       prejudicial. Our case law is clear on this point: If there are elements of a
       photograph that are genuinely helpful to the jury in making its decision, the
       photograph is inadmissible only if the emotional and prejudicial aspects
       substantially outweigh the helpful aspects.

Erazo v. State, 144 S.W.3d 487, 491–92 (Tex. Crim. App. 2004).

       Under Rule 403 of the Texas Rules of Evidence, even relevant “evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice . . . .” TEX. R. EVID. 403. “Rule 403 favors admissibility of relevant evidence, and the

presumption is that relevant evidence will be more probative than prejudicial.” Montgomery,

                                                5
810 S.W.2d at 389 (op. on reh’g). Rule 403 requires both trial and reviewing courts to analyze

and balance “(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, 144 S.W.3d at 489. “In making this determination,

we consider factors including: the number of exhibits offered, their gruesomeness, their detail,

their size, whether they are black and white or color, whether they are close-up shots, whether

the body is naked or clothed, the availability of other means of proof, and other circumstances

unique to the individual case.” Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997).

III.        Application

            A.       The Photographs

            Maldonado complains that the trial court abused its discretion in admitting some thirty-

five photographs depicting the burn wounds on Nathan’s body at or near the time of his death.

Specifically, Maldonado objected to the admission of six photographs taken by EMS personnel

on September 24 4 and to twenty-nine photographs taken by the Dallas County Medical

Examiner’s Office during the autopsy of Nathan’s body. 5           All thirty-five of the contested

photographs are 8” x 10” color images showing the nature and extent of the burn wounds that

covered Nathan’s body. The photographs, which were taken from varying perspectives, angles,

and distances, are in focus, and the quality of the images is very good. The photographs show

significant portions of Nathan’s body covered in black, charred-looking burns. Several of the


4
    State’s Exhibits 6–11.
5
    State’s Exhibits 18–46.
                                                   6
photographs show burns to Nathan’s perineum and anus, and his genitalia and anus are visible in

those images. The majority of the photographs, however, show the burns covering Nathan’s

legs, feet, back, face, arms, chest, and mouth.

       B.      Relevance

       Maldonado first argues that, because she pled guilty to the charged offense, the

photographs depicting Nathan’s body at the time of his death were wholly irrelevant to any issue

before the jury in Maldonado’s punishment trial.        According to Maldonado, the fact that

Nathan’s body was burned severely enough to cause his death was not contested; consequently,

she concludes, the only possible motive for introducing the photographs into evidence was to

inflame the jurors and prejudice them against Maldonado. But this overlooks the very point of a

punishment trial—determining the appropriate punishment for a particular defendant given the

specific facts and circumstances of that defendant’s crime. A punishment trial is the mechanism

by which a jury is allowed to assess the moral blameworthiness of a defendant. Rodriguez v.

State, 203 S.W.3d 837, 844 (Tex. Crim. App. 2006). Maldonado would apparently have us hold

that, by pleading guilty to seriously injuring Nathan, she rendered evidence concerning the

nature and extent of Nathan’s injuries and/or the effects of her crime irrelevant to the assessment

of her moral blameworthiness. While it is true that there is no evidence in the record to suggest

that Maldonado actually inflicted the injuries on Nathan, the crime to which she pled guilty was

injury to a child, and the issue before the jury was the appropriate punishment for that crime.

Maldonado attempted to minimize her blameworthiness by claiming she was fearful of




                                                  7
Alexander.   It defies logic to suggest that the nature and extent of Nathan’s injuries was

irrelevant to the determination of Maldonado’s punishment.

       We find that the pictures at issue in this case, which depicted the severity and extent of

Nathan’s injuries at the time of his death, were helpful to the jury in assessing Maldonado’s

moral blameworthiness for her crime. In short, the photographs were relevant notwithstanding

Maldonado’s guilty plea.

       C.     The First Montgomery Factor: The Probative Value of the Evidence

       [T]he relevance value of a photograph is to show appearance. . . . A crime-scene
       photograph or an autopsy photograph is not admissible simply to show the death
       of the individual. These photographs are admissible despite the fact, and because,
       they show more than the testimony. But that “something more” must be relevant
       and helpful to the jury.

Erazo, 144 S.W.3d at 493. The photographs at issue here all provided visual images of the

appearance of Nathan’s body at the time of his death; combined with testimony that the wounds

were two weeks old, the photographs gave the jury stark evidence of what the child might have

endured during those two weeks. This information was clearly helpful to the jury in assessing

Maldonado’s moral blameworthiness for her crime. See Rodriguez, 203 S.W.3d at 844. Further,

the photographs provided context to the witness testimony they accompanied, and, in the case of

the twenty-nine autopsy photographs offered through the medical examiner, they helped the jury

to understand that testimony.

       The six objected-to photographs offered into evidence during Cooke County EMS

Paramedic Jacob Blount’s testimony provided the jury visual images of what Blount described

during his testimony—the appearance of the child when EMS personnel arrived. Similarly, the

                                               8
autopsy photographs offered during Dallas County Medical Examiner Dr. Lynn Salzberger’s

testimony provided the jury visual images of the nature and extent of the injuries discovered on

Nathan’s body during Salzberger’s examination. Salzberger used the photographs during her

testimony to illustrate her findings and to elucidate her testimony.         By way of example,

Salzberger testified that sixty percent of Nathan’s body was burned, that the majority of those

burns were third-degree burns, and that there was also evidence of some burns that were less

severe than third degree. Salzberger further explained to the jury that third-degree burns are

“full-thickness” burns, which means “that the injury damaged the skin to its full-thickness [sic],

the whole layer of skin, not just the outside layer.” She used the photographs to illustrate the

different types of burns on Nathan’s body and to illustrate the damage caused by a third-degree

burn. One of the autopsy photographs showed Nathan’s anus. Salzberger testified that there was

a burn injury close to the anus and burns on the perineum, and she used this photograph to

illustrate these injuries. Salzberger also testified that there was a burn injury on the base of the

child’s penis at the groin, and she used a photograph to identify that injury to the jury.

Additionally, Salzberger used the photographs to show the jury burn injuries inside Nathan’s

mouth and across the bridge of his nose. Salzberger used the photographs to identify the severe

burns she discovered under Nathan’s arms, down the sides of his chest, and on his feet and toes.

And finally, she utilized a photograph of a portion of the child’s inner neck and one showing his

pharynx to illustrate the unusual burn injuries she discovered down Nathan’s pharynx, into the

top of his esophagus, and below his vocal chords.




                                                 9
       Salzberger testified that, prior to performing this autopsy, she had never seen burn

injuries of the severity suffered by Nathan that went untreated for as long as Nathan’s did, and

she opined that Nathan would probably have been in “excruciating pain” as a result of his

injuries. She also opined that, upon observing such injuries on a child, any reasonable person

would have immediately sought medical treatment for that child. The contested photographs

precisely fill the role contemplated by the Texas Court of Criminal Appeals in Erazo: “they

show more than the testimony” they accompany, and that something more is “relevant and

helpful to the jury.” Erazo 144 S.W.3d at 493. The photographs were highly probative in

demonstrating the nature and extent of Nathan’s injuries, and these were pivotal considerations

in determining Maldonado’s moral blameworthiness for failing to obtain medical care for

Nathan. This factor weighs heavily in favor of admissibility.

       D.      The Second Montgomery Factor: The Potential to Impress the Jury in Some
               Irrational yet Indelible Way

       The second factor we consider in determining whether the probative value of these

photographs is outweighed by the danger of unfair prejudice is the potential of the photographs

to impress the jury in some irrational yet indelible way. The thirty-five contested photographs

are unquestionably gruesome and disturbing, and they undeniably leave an indelible impression.

The photographs offered through both Blount and Salzberger were selected from much larger

pools of available photographs, and Salzberger specifically stated that she removed repetitious

photographs as well as “the ones that were especially gross.”

       We agree with Maldonado that these photographs were prejudicial to her defensive

theory during the punishment trial. However, Rule 403 does not mandate the exclusion of all
                                               10
prejudicial evidence; rather, its narrow focus is on that evidence with the potential for unfair

prejudice. Manning v. State, 114 S.W.3d 922, 927–28 (Tex. Crim. App. 2003). Relevant

evidence becomes unfairly prejudicial when it has some detrimental impact above and beyond

proof of the fact or issue that justified its admission in the first place. Id. Here, we cannot agree

with Maldonado that the prejudicial impact of these photographs was unfair. Stated differently,

we find that the impression left on the jury by these photographs, although powerful and likely

emotional, was a completely rational impression under the facts and circumstances of this case.

       Maldonado emphasizes the gruesome and disturbing nature of the photographs in her

efforts to convince us that the photographs are unfairly prejudicial. However, the probative

value of a photograph that is gruesome and disturbing to view is not substantially outweighed by

the danger of unfair prejudice if it merely depicts the gruesome reality of the injuries sustained

by the victim. Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995). As the Texas

Court of Criminal Appeals has clearly stated, “A trial court does not err merely because it admits

into evidence photographs which are gruesome.” Id.; see Davis v. State, 313 S.W.3d 317, 331

(Tex. Crim. App. 2010); Drew v. State, 76 S.W.3d 436, 452 (Tex. App.—Houston [14th Dist.]

2002, pet. ref’d) (where relevant to explain injuries, trial court did not err in admitting autopsy

photographs showing (1) victim’s head with top portion of skull removed and brain exposed,

(2) skull with scalp pulled over victim’s face, (3) interior of skull with brain removed, (4) brain

outside skull, and (5) excised windpipe).




                                                 11
         Given the facts of this case, we cannot say that either the autopsy photographs or the

photographs showing the scenes encountered by EMS personnel were likely to impress the jury

in an irrational way. This factor weighs in favor of admissibility.

         E.       The Third Montgomery Factor: The Time Needed to Present the Evidence

         The State took most of one day to present its evidence, and the trial testimony in its

entirety covers in the neighborhood of 300 pages of the reporter’s record. 6 Blount’s direct

examination covers approximately thirty-one pages of the reporter’s record, and his description

of the challenged photographs covers only three of those pages. This is a fairly insignificant

amount of time both in the context of Blount’s testimony as a whole and in the context of the

trial as a whole. Dr. Salzberger’s direct testimony covered approximately forty pages of the

reporter’s record. After establishing her experience and credentials, she used the challenged

photographs throughout her testimony. However, Salzberger used the photographs to elucidate

her findings to the jury. Given the manner in which the photographs were used in this case, the

issue before the jury, and the particular relevance of the photographs to that issue, we cannot

conclude that the amount of time spent presenting this evidence was inappropriate. We find that

this is a neutral factor under these circumstances.

         F.       The Fourth Montgomery Factor: The Proponent’s Need for the Evidence

         The photographs admitted through Blount show Nathan’s state at the time EMS

personnel arrived. Blount told the jury that Nathan was not breathing and described several


6
 After dismissing the jury at the end of the first day of testimony, the trial court stated, “[W]e’ve got an hour” and
encouraged the parties to work on the jury charge during that time. Based on the court’s statements to the jury panel
throughout the day, we feel safe inferring that most of this first day was consumed by witness testimony.
                                                         12
procedures performed by members of his team in an effort to resuscitate the child. Blount

testified that, as a result of the severity and pervasiveness of Nathan’s burn injuries, his team was

unable to find a vein on either his arms or his legs into which an intravenous needle could be

inserted. According to Blount, after he and his team delivered Nathan to the hospital, their

supervisor released them for the day—approximately three hours early—because they were all so

distraught by Nathan’s injuries and his death.

            Also, in one of the photographs introduced through Blount and, notably, without

objection from Maldonado, Nathan is seen wrapped in a kind of gauze, which covered his burned

legs. Blount testified that removing that gauze would have been “excruciatingly painful” if

Nathan were still alive. 7           The photographs demonstrated that Blount’s testimony was not

hyperbole.

            The State’s theory of the case was that Nathan suffered for two weeks in Maldonado’s

home when medical treatment was obviously necessary. Maldonado pled guilty to injuring

Nathan by failing to seek medical attention for him.                     The State asked the jury to assess

Maldonado’s punishment based on the suffering endured by Nathan. Salzberger testified that the

injuries were so significant that any reasonable person would have sought medical treatment

immediately. She also opined that Nathan could have survived with prompt treatment. Visual

evidence of the extent of the injuries was important to illustrate Salzberger’s testimony that the

wounds would have been “very, very painful.” Based on the circumstances of this case and the




7
    As previously noted, EMS personnel could not resuscitate Nathan, and he was declared dead at the hospital.
                                                           13
extent of the injuries, we find the State had a legitimate need for this evidence. This factor

weighs in favor of admissibility.

       After considering the Montgomery factors, we find that the trial court’s decision to admit

the challenged photographs was within the zone of reasonable disagreement; the trial court did

not abuse its discretion by admitting the photographs. Maldonado’s first point of error is

overruled.

IV.    Formalities of the Rule 403 Balancing Test

       In Montgomery, the Texas Court of Criminal Appeals held that, when a party asserts an

objection to the admissibility of evidence under Rule 403 of the Texas Rules of Evidence, a trial

court is required to conduct a balancing test to determine whether the probative value of the

challenged evidence is substantially outweighed by the potential of the evidence to have some

unfairly prejudicial effect. Montgomery, 810 S.W.2d at 389. Maldonado complains that the trial

court failed to perform the mandatory Rule 403 balancing test before admitting the challenged

photographs into evidence.

       While a trial court must conduct the balancing test when a Rule 403 objection is lodged,

there appears to be no requirement that the court formally conduct the test on the record. See

Nolen v. State, 872 S.W.2d 807, 812 (Tex. App.—Fort Worth 1994, pet. ref’d) (citations

omitted); Houston v. State, 832 S.W.2d 180, 183–84 (Tex. App.—Waco 1992), pet. dism’d,




                                               14
improvidently granted, 846 S.W.2d 848 (Tex. Crim. App. 1993) (per curiam). 8 In the words of

the Second Court of Appeals,

        There is no requirement that the trial court announce for the record that it has
        conducted and completed the balancing test in its own mind. The fact that a trial
        judge made a proper balancing test can be implied from the record. While the
        record does not contain a direct discussion by the court of its balancing, we
        presume the court did perform the mandatory balancing test.

Nolen v. State, 872 S.W.2d 807, 812 (Tex. App.—Fort Worth 1994, pet. denied) (citations

omitted). We are bound by the precedent of our sister court where, as here, the case has been

transferred to us from that court. See TEX. R. APP. P. 43.1.

        The record reveals that the trial court carefully considered Maldonado’s objections to the

photographs after first obtaining the State’s response to the objections raised. It appears from the

record that the trial court examined each of the contested photographs.                     In overruling

Maldonado’s objections to the six photographs admitted during Blount’s testimony, the court

opined that the jury was entitled to see the extent of the child’s injuries, that each photograph

showed different injuries, and that the photographs would assist Blount in his testimony. Under

these facts and in light of controlling precedent of the Second Court of Appeals, we presume the

trial court performed the mandatory Rule 403 balancing test.

        When Salzberger was about to testify using photographs from the autopsy she conducted,

Maldonado objected to State’s Exhibit 46, and then made a separate objection to State’s Exhibits

18–45. State’s Exhibit 46 is an overhead view of Nathan’s body during the autopsy; it shows the

8
 See also Swarb v. State, 125 S.W.3d 672, 681–82 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d); Yates v.
State, 941 S.W.2d 357, 367 (Tex. App.—Waco 1997, pet. ref’d); Caballero v. State, 919 S.W.2d 919, 922 (Tex.
App.—Houston [14th Dist.] 1996, pet. ref’d); Duckworth v. State, 833 S.W.2d 708, 710–11 (Tex. App—Beaumont
1992, no pet.).
                                                    15
naked child including the demarcation lines of burned and unburned skin. A card is next to the

child with an identifying number corresponding to the autopsy number. The trial court asked if

Salzberger needed the photograph to identify the body; she said she did, because of the

identifying number. The trial court overruled the objection without comment. Maldonado next

objected to State’s Exhibits 18–45. On voir dire, Maldonado asked if Salzberger needed the

photographs to determine the cause of death. Salzberger answered that she did not need them for

that purpose, but that she did need the photographs to explain her findings to the jury. Again, the

trial court asked to see the photographs, and the record indicates they were tendered to the court.

After reviewing them, Maldonado’s objection was overruled without further comment. Under

these facts and, again, in light of controlling precedent, we presume that the trial court conducted

the mandatory Rule 403 balance.

          We find no error in the trial court’s failure to conduct an explicit, on-the-record weighing

of the Rule 403 considerations. Maldonado’s second point of error is overruled.

       We affirm the trial court’s judgment.




                                               Jack Carter
                                               Justice

Date Submitted:         October 8, 2014
Date Decided:           December 11, 2014

Publish




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