                                       In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-18-00378-CR
                               NO. 09-18-00379-CR
                               __________________

                       MELISA ANN MILLER, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee

__________________________________________________________________

               On Appeal from the 411th District Court
                         Polk County, Texas
                   Trial Cause Nos. 25454 & 25455
__________________________________________________________________

                          MEMORANDUM OPINION

      A grand jury indicted Appellant Melisa Ann Miller (“Miller” or “Appellant”)

for the murder of James Bradberry, a first-degree felony, and for intoxication assault

with a vehicle causing serious bodily injury to Melissa Bradberry, a third-degree

felony. See Tex. Penal Code Ann. §§ 19.02, 49.07. Miller pleaded “not guilty,” but

a jury found Miller guilty on both charges. The jury also made a deadly weapon

                                          1
finding for both crimes charged. The court assessed punishment at fifty-five years

on the murder charge, and ten years on the intoxication assault charge, with the

sentences to run concurrently. Miller appeals her convictions, and in two issues, she

challenges the admission of autopsy photos and the legal sufficiency of the evidence

supporting the jury’s verdict. We affirm.

                                    Indictments

      A grand jury indicted Miller in cause number 25454 for felony murder, and

the indictment alleged that the underlying felony offense was driving while

intoxicated. The indictment alleged that Miller

      . . . while in the course of and in the furtherance of the commission of
      the felony of driving while intoxicated and having two prior convictions
      for driving while intoxicated did commit an act clearly dangerous to
      human life, to-wit: by operating her motor vehicle in such a manner as
      the motor vehicle moved into an on-coming lane of traffic and did
      collide with a motorcycle operated by James Bradberry and did cause
      the death of James Bradberry[.]

      A grand jury also indicted Miller in cause number 25455 for intoxication

assault with a vehicle causing serious bodily injury, alleging that Miller:

      . . . operate[d] a motor vehicle in a public place while intoxicated, and
      did by reason of such intoxication cause serious bodily injury to
      another, Melissa Bradberry, through accident or mistake, namely: by
      allowing her motor vehicle to move into an on-coming lane of traffic
      and did collide with a motorcycle on which Melissa Bradberry was a
      passenger[.]”


                                            2
Both indictments alleged that Miller used a deadly weapon, an automobile, in the

commission of the offense.

                                     Evidence

Testimony of Trooper Kevin Burman

      Trooper Kevin Burman, with the Texas Department of Public Safety (“DPS”)

highway patrol, testified that he was dispatched to a crash involving motorcycles and

severe injuries on FM 356 in Polk County on June 25, 2016, shortly after 9 p.m.

According to Burman it was dry, hot and clear that day. Burman observed an SUV

partly in the road and partly on the shoulder, close to the guardrail. He identified

four victims at the scene: Melisa Miller, the occupant of the SUV; Ronald Creech,

the operator of the first motorcycle; James Bradberry (“James”), the driver of the

second motorcycle; and Melissa Bradberry (“Melissa”), James’s passenger. When

Burman arrived on the scene, James was being treated, and a tourniquet had been

placed on his leg because it had been severed just below the knee. According to

Burman, Melissa was unconscious, had difficulty breathing, and was gravely

injured. She was transported from the scene by helicopter.

      Trooper Burman testified that he spoke with other individuals who were riding

in a group of four motorcycles together, with two motorcycles in front and two riding

behind. Burman testified that the motorcyclists reported they had been driving about

                                         3
fifty or fifty-five miles per hour. Burman testified that he asked a local reporter at

the scene to take photographs, and Burman also took some photographs as well.

      State’s Exhibits 8 through 37 were admitted, which Trooper Burman

recognized as photographs of the scene that night and the next day. Burman

estimated that the point of impact was about ten inches into the lane in which the

motorcycles were travelling. Burman testified that Exhibit 8 depicted the area of

impact, and it showed blood spatter, body tissue, and gouge marks where vehicles

collided and gouged out some of the asphalt. Burman testified that Exhibit 9 showed

marks in the northbound lane made by the SUV, and that the SUV was traveling

southbound. Burman testified that the damage to the SUV was to the front left wheel,

grille, and front bumper and there was “less damage to the side of the vehicle[,]” and

that State’s Exhibit 25 depicted damage to the driver’s side headlight assembly and

front fender. According to Burman, the damage to the SUV’s windshield was “likely

Mr. Bradberry’s left arm [that] was almost completely severed off.” Burman also

testified that the driver’s side airbag of the SUV was deployed, which suggested

frontal impact and not side impact. Burman believed that dents to the SUV hood

were from the left handlebar of the motorcycle. The Trooper testified that Melissa

ended up about fifty feet away from James.



                                          4
      Trooper Burman testified that during his investigation on the night of the

crash, he received Miller’s purse and that he and Trooper Lenderman searched its

contents before taking it to the sheriff’s office. Burman identified State’s Exhibit 66

as an envelope that he packaged that contained evidence acquired from Miller’s

purse and Exhibit 67 was the contents. Burman identified State’s Exhibits 38, 39,

and 40 as photos of a pill bottle in Miller’s purse—a prescription bottle of

hydrocodone-acetaminophen. Burman also identified Exhibit 41 as a photo of four

Soma or carisoprodol pills taken from Miller’s purse that were not in a prescription

bottle although the pills were prescription medication. Burman also testified that

Trooper Lenderman obtained a “consensual blood sample” from Miller at the

hospital. According to Burman, analysis of the blood sample by the Houston crime

lab detected no alcohol, and the DPS crime lab in Austin did a narcotics analysis on

the blood sample.

      Burman testified that he spoke with Miller at the hospital where “she still

seemed to be impaired[]” and lacked the “normal use of normal mental and physical

faculties . . . from the introduction of narcotics or alcohol in the person’s system.”

He observed Miller’s movements were slow and deliberate, her eyes appeared glassy

and bloodshot, her speech was slurred, her coordination was “off[,]” and she seemed

emotionless despite the traumatic situation. Burman agreed that in his driver

                                          5
examination report, he wrote that Miller “[a]ppeared to be under the influence of

medication.” Trooper Burman agreed that he arrested Miller the night of the accident

for intoxication manslaughter, intoxication assault, and possession of Soma without

a prescription. State’s Exhibits 73 and 74 were admitted into evidence and published

to the jury, and Burman testified that he recognized these as videos taken from the

patrol vehicle’s cameras that night as he was at the scene and interacting with Miller.

Testimony of Kaylie Allbright

      Allbright testified that, while driving one night in June 2016, she observed a

vehicle pull onto the highway swerving to the right and left, and the vehicle

contacted at least one motorcycle:

             She was swerving. The vehicle was swerving on the road and hit
      -- well went over the yellow and the white lines -- the yellow line being
      in the middle and the white line being on the outside -- and hit a couple
      of motorcycles.
             ...
             The vehicle was going onto the other side of the yellow line and
      almost into the ditch, back and forth . . . [and] [s]werving across the
      white line to my right almost into the ditch as well.
             ...
             I could see her swerving, or the vehicle swerving, and it [] went
      over the yellow line to my left and hit some motorcycles.
             ...
             The vehicle that hit the motorcycles kept going . . . . It didn’t stop
      right when the motorcycle was hit. It went farther on down before it
      was stopped.



                                           6
Allbright recalled that at one point, both tires on the driver’s side of the vehicle “were

completely over the yellow line[.]”

Testimony of Ronald Creech

       Ronald Creech testified that he rode motorcycles with James and Melissa,

who were “like family[,]” and that he was riding his motorcycle with them on the

day of the accident. According to Ronald, the motorcycles were traveling at the

speed limit, about fifty or fifty-five miles per hour, on a two-lane road. Ronald

testified that

              . . . We were riding in formation down the road, and I was in
       front, as I normally was on the center line side. They were directly
       behind me. I saw someone veering toward the centerline, and I thought
       someone was just crowding me off the centerline because a lot of times
       cars will do that. I eased over a little bit. The vehicle kept coming over
       across the centerline and basically hit me head on, on my left handlebar.

       Ronald testified that he saw James lying on the side of the road “like a pile of

laundry[]” and his leg was across the road. Ronald testified that Melissa, who had

been riding on the back of James’s motorcycle directly behind Ronald, had been

thrown far enough into the tall grass that it took them fifteen or twenty minutes to

find her. Ronald testified that after James and Melissa were taken to the hospital, he

went to see them but when he arrived, he was told James had died.




                                            7
Testimony of Andrew Crane

      On June 25, 2016, Andrew Crane testified that he was riding his motorcycle

northward with James, Melissa, Ronald, Robert Heifner, and Robert’s wife, when a

crash occurred. According to Andrew, an SUV came across the lane and Andrew

heard a crash. Andrew testified that James was lying on the side of the road, and the

SUV was “down the road[]” and had one of the front tires “just about ripped off of

it.” Andrew did not see the vehicle hit a motorcycle, but he heard the crash. When

Andrew turned around, he saw James lying in the road looking “like a pile of

clothes” and his left leg was missing. According to Andrew, Melissa was initially

“nowhere to be seen[]” but she was later found in a ditch, “bones sticking out of her

arm[,]” her “pinkie was about torn off[,]” her right leg from the knee down was “just

destroyed pretty much[,]” and she was initially unresponsive. Andrew identified

Miller as the driver of the SUV that night.

Testimony of Deborah Heifner

      Deborah Heifner testified that she and her former husband Robert Heifner

were riding motorcycles with Creech, Nancy Smith, and James and Melissa on the

night of June 25, 2016. At one point she felt the motorcycle swerve and she heard a

loud noise. When she and Robert pulled over and got off the motorcycle, she saw

James lying in the road, she began to render first aid, including placing a tourniquet

                                          8
on James’s left leg and a belt on his left arm and tried to keep him from moving in

case there was a spinal injury. Deborah described what she saw: “[James’s] left leg

was pretty much gone. At about the knee, it was pretty much gone. The left arm was

completely busted open around the elbow. He was bleeding profusely.” Deborah

identified Miller as a person she saw at the site of the crash, and she recognized

Miller from a restaurant where she had seen Miller working.

Testimony of Robert Heifner

      Robert Heifner testified that he rode motorcycles with James and Melissa, and

he had known them for about four months before June 25, 2016. According to

Robert, while riding that night, he saw an oncoming car veer over toward them, and

he and James both swerved. According to Robert, he saw the impact to James, and

James hit the bumper on the driver’s side of the car. Robert further testified that he

went to the driver of the car, who was standing outside her vehicle, to make sure she

was okay. Robert identified Miller as the driver of the car that night, and he described

her as “[i]ntoxicated.” According to Robert, when he asked her how she was doing,

she replied “[t]hey ran me off the road and kept going.” Robert recalled that Miller’s

vehicle was severely damaged.




                                           9
Testimony of Doug Crocker

      Doug Crocker testified that he was driving “a car length or two” behind the

motorcycles and he saw the crash as it happened. Crocker testified that he observed

a van come about halfway into his lane and hit the handlebars of one of the

motorcycles and then it “plowed the other one head on.” According to Crocker, he

saw a man lying on the ground with one of his legs gone. Crocker agreed that when

the vehicle hit the motorcycles, it was in his lane of traffic when he was following

the motorcycles. Crocker recalled that he got out of his car and approached the man

lying on the road whose leg was missing. According to Crocker, he and another

person on the scene found the man’s wife in a ditch about fifty yards away, and one

of her legs was gone and both her elbows were broken.

      Crocker identified Miller as the driver of the vehicle that caused the crash, and

he testified that he spoke with her that night to see if she was okay, she told him that

her wrist hurt, she kept repeating she was reaching for her phone, and her words

were slow.

Testimony of Peggy Samuels

      Peggy Samuels testified that she and her husband were riding their ATV near

FM 356 and they heard an “awful noise[]” that they knew it was an accident.

According to Samuels, they went to the scene, and her husband, who is a police

                                          10
officer, went to help. Samuels remained on the ATV, and she observed a very

distraught woman, on a cell phone, who seemed to be speaking with her mother and

repeating “mother” several times. Samuels asked the woman if she was okay, and

the woman told her she had just been in an accident. According to Samuels, the

woman said, “I was driving, and they just swerved in my lane, came in my lane.”

Samuels testified that the woman placed her purse on the ATV even though Samuels

asked her not to, and then the woman headed back toward the accident. Samuels

used her cell phone as a flashlight to look in the woman’s purse, where she found

two hot dogs and several bottles of prescriptions. Samuels testified that she called

her husband over, who took the woman’s purse back to the accident scene. Samuels

identified Miller as the woman who left a purse on the ATV that night.

Testimony of Detective Dakota Hernandez

      Detective Dakota Hernandez testified that she was currently with the San

Jacinto County Sheriff’s Office, but she was previously with the Onalaska Police

Department. According to Hernandez, she was dispatched to the scene of a crash in

Polk County. When she arrived at the scene, there was a man lying on the ground

whom Hernandez described as having broken bones, bleeding heavily, missing a leg,

and having “a broken body.” Hernandez learned that a woman (Melissa Bradberry)

had also been injured in the accident, but she was “a bit further away” from where

                                        11
the man who was injured in the accident. Hernandez recalled that the woman who

was injured appeared “lifeless[]” and there was “gurgling in her voice.” Hernandez

identified Miller as the driver of the vehicle at the scene.

Testimony of Lieutenant Mark Jones

      Lieutenant Mark Jones with the Polk County Sheriff’s Office testified that he

is a certified fingerprint examiner, which gives him the ability to take known

fingerprints and compare them to a known source. Jones testified that he was asked

to take known prints of Miller, and he identified State’s Exhibit 70 as fingerprints

he personally obtained from Miller. According to Jones, he compared the known

prints to those on judgments obtained from the clerk’s office, and State’s Exhibits

47 and 48 appeared to be photocopies of the original judgments he examined. Based

on his comparison, Jones testified that the known prints he took of Miller were the

same as the prints on the two judgments.

Testimony of Trooper William Lenderman

      Trooper William Lenderman with DPS testified that he was trained in

standardized field sobriety testing. He agreed that he was dispatched to the scene of

a “[v]ehicle versus motorcycle crash[]” that occurred just after 9 p.m. in Polk County

on June 25, 2016. According to Lenderman, upon arriving at the scene, Trooper

Burman asked him to check out the driver of the vehicle for possible intoxication,

                                          12
and he identified Miller as the driver of the vehicle. Lenderman testified that at the

scene, Miller “seemed kind of lost[]” but she did not have any visible injuries, and

he asked her if she had taken any drugs or drunk any alcohol. According to

Lenderman, Miller at first denied taking any medication, but later told him she had

taken two pills that were either a painkiller or muscle relaxer. Lenderman conducted

standard field sobriety testing, but only one portion was completed because Miller

reported to him that she had some physical limitations. Lenderman explained that

standardized field sobriety testing has three parts, including horizontal gaze

nystagmus (“HGN”), walk and turn, and one-leg stand test, but that he only

administered the HGN because Miller had back problems and did not believe she

could walk a straight line. Lenderman recalled that he observed “six out of six

clues[]” on Miller’s HGN test. Lenderman also agreed that the test is not one hundred

percent accurate, but he felt he had received one hundred percent accurate results in

this instance.

      Lenderman identified State’s Exhibits 73 and 74 as recordings taken of his

conversations and interactions with Miller the night of the accident, which were

admitted and published to the jury. According to Lenderman, he had to start the test

over several times because when he instructed Miller to follow the movement

visually of his pen, Miller would quit following the stimulus. Lenderman testified

                                         13
that Miller told him she had taken two pills that day, and Exhibit 73 shows Miller

tell Lenderman that she took two Norco pills earlier in the day and later tell him she

took three pain pills that day. Exhibit 73 also shows Miller tell Lenderman that the

pills in her purse were Somas that she had had “forever.”

      According to Lenderman, he requested a blood sample from Miller, and she

agreed. Lenderman agreed that he arrested Miller and read the standard warnings to

her explaining her rights. Lenderman also testified that “a few pills” were found

inside Miller’s purse, including 350-milligram carisoprodol, known as Soma, and

that Miller had mentioned to him she had a prescription for pain medication.

Lenderman identified State’s Exhibits 66 and 67 as the carisoprodol pills that were

in Miller’s possession. According to Lenderman, Miller had called the pills “Soma”

when talking about them, and he did not find a prescription for them. Lenderman

identified State’s Exhibit 75 as the blood draw kit used on Miller at the hospital the

night of the accident, and he agreed he was present for the blood draw.

      Trooper Lenderman testified that State’s Exhibit 47 was a judgment for

Melisa Ann Miller dated 2009 for the offense of driving while intoxicated and that

State’s Exhibit 48 was a judgment for Melisa Ann Miller dated 2011 for the offense

of driving while intoxicated, second offense, and that the documents reflected that

Miller had pleaded guilty to both offenses. Lenderman agreed that a vehicle that

                                         14
veers across the center lane into oncoming traffic and strikes another vehicle is a

deadly weapon and that Miller’s vehicle was a deadly weapon in this case. Based on

his observations and the standardized field sobriety testing, Lenderman believed that

Miller had “lost the normal use of her mental and physical faculties due to the

introduction of medication into her body[,]” which contributed to the accident.

Lenderman agreed that Miller had told him she had worked ten hours earlier in the

day, she was tired, she thought the motorcycles came into her lane, and she had been

reaching for the phone she had dropped in her car.

Testimony of Dana Baxter

      Dana Baxter testified that she is a forensic scientist with DPS and works in

the toxicology section of the Austin crime lab. She also testified that she is trained

on the effects of drugs on a person’s body. Baxter recalled testing a blood specimen

from Miller in 2016. Baxter recognized State’s Exhibit 75 as a sample received in

June 2016 that was marked with her initials. Baxter also recognized State’s Exhibit

51 as the report of her findings she prepared after testing the sample. According to

Baxter, the sample she tested detected carisoprodol at 4.6 milligrams per liter,

hydrocodone at .06 milligrams per liter, and meprobamate at 20 milligrams per liter.

She further testified that her testing detected amphetamine and methamphetamine.



                                         15
      Baxter testified that carisoprodol, sold under the brand name of Soma, is a

muscle relaxer. Baxter further testified that when the body breaks down

carisoprodol, the breakdown produces meprobamate, an active metabolite that

affects the body. According to Baxter, carisoprodol is a central nervous system

(“CNS”) depressant, like alcohol, and side effects include sleepiness, mental

confusion, slowed reaction times, and balancing or vision problems. Baxter testified

that meprobamate is also a CNS depressant that results in sleepiness, anxiety, mental

confusion, and balance problems. Baxter further testified that hydrocodone is also a

CNS depressant and a painkiller, similar in its effects as carisoprodol or

meprobamate, and can cause drowsiness, mental confusion, and slowed reaction

times. Baxter described amphetamine and methamphetamine as CNS stimulants that

can lead to fast speech or agitation, but that on the “down[]side,” these drugs can act

like CNS depressants and create problems with alertness. According to Baxter,

carisoprodol, meprobamate, and hydrocodone taken together have additive effects.

      Baxter testified that the levels of carisoprodol she detected were within but

“at the upper end of the therapeutic range[]” for this drug, the levels of meprobamate

were in the middle of the therapeutic range, and the concentration of carisoprodol

and meprobamate were at a level where there could be impaired driving. Based on

her test findings, Baxter testified that she would not feel comfortable riding in a car

                                          16
with someone who had this combination and amount of drugs in their system

because the levels detected are hazardous for driving and increase the likelihood of

poor judgment. Baxter agreed that there is no “per se limit” for intoxication for

carisoprodol, meprobamate, and hydrocodone as there is for alcohol intoxication and

the standard for intoxication for drugs other than alcohol is “loss of your mental and

physical faculties.”

Testimony of Megan Barton

      Megan Barton testified that she is a technical leader for the toxicology section

of DPS in Austin and she works with Dana Baxter. According to Barton, the testing

of Miller’s blood sample for amphetamines and methamphetamines was performed

by Samuel Salinas, who left the DPS lab to work for a lab in another state, but Barton

had reviewed Salinas’s work on this sample, and she agreed with his procedures and

results. Barton testified that the results of testing Miller’s blood sample were

amphetamine at less than .05 milligrams per liter and methamphetamine at .10

milligrams per liter. According to Barton, amphetamines and methamphetamines are

“considered the same[,]”amphetamine is a metabolite of methamphetamine, and the

drugs make a person feel more excited, more energetic, or “better about

themselves[.]” Barton testified that a level of methamphetamine above .2 is

considered abuse when prescribed for ADD, ADHD, or narcolepsy.

                                         17
Testimony of Molly Horn

      Molly Horn, a paramedic, testified that she responded to an accident on FM

356 in June 2016. Horn recalled that she was in the second ambulance to arrive at

the scene and when she arrived, the first ambulance was taking care of a male patient,

and a female patient was lying in the ditch on the side of the road. According to

Horn, the woman had pretty severe injuries and her leg was almost completely

amputated, she had been placed on a backboard, and a tourniquet was placed on her

leg. Horn further testified that the woman was not breathing effectively and had

injuries to her arms and hands, and Horn believed the woman might die within

minutes. Horn testified that the woman was sedated, a breathing tube was inserted,

and a flight crew took the woman onto a helicopter. According to Horn, the woman

was identified as Melissa Bradberry. Horn identified State’s Exhibit 5 as the EMS

report she wrote after the accident. In Horn’s opinion, the injuries to Melissa

constituted serious bodily injury.

Testimony of Dr. Tommy Brown

      Dr. Brown testified that he is a forensic pathologist, a person who performs

autopsies to determine cause and manner of death, and he was asked to do an autopsy

of James Bradberry in June 2016. Dr. Brown testified that, in his external

examination, he noted that James had “severe trauma to the chest and the abdomen

                                         18
and pelvis and the lower left extremity.” He also noted three abrasions along the

right lower chest, a crushed left pelvis, the part of the left femur had been shoved

into the lower abdominal cavity, a crushed and fractured ball joint where the femur

joins the hip, an abrasion on his left hip and left inguinal area, a severe large

laceration extending from his left hip to just above the knee, a compound fracture of

the femur, destruction of the soft tissue in the leg, fractured tibia, a below-the-knee

amputation of the left leg and foot, abrasions to his right knee and left shoulder, and

a large fracture to the distal femur and proximal forearm. In his internal examination

he noted a fractured sternum and blood in the chest cavity.

      Dr. Brown recognized State’s Exhibit 64 as the autopsy report and copy of the

toxicology results that he prepared on James Bradberry, and the autopsy report was

published to the jury. Brown agreed that State’s Exhibits 52, 54, 55, 58, 60, 62, and

63 accurately depicted the condition of James’s body at the time of the autopsy. Dr.

Brown testified that Exhibit 54 showed severe injuries to James’s left hip and leg,

including the below-the-knee amputation; Exhibit 55 showed a large laceration from

the left hip to left knee, soft tissue damage, and a compound fracture of the femur;

Exhibit 58 showed extensive injury below the knee of the left lower leg, including

amputation; Exhibit 60 showed fractures to the left elbow, a large laceration on the

left arm, and soft tissue damage; Exhibit 62 showed rib fractures; and Exhibit 63

                                          19
showed separation between the T9 and T10 vertebrae and a spinal fracture. Dr.

Brown agreed that his review of the records reflected that an “improvised”

tourniquet was applied to James at the scene of the accident, and another tourniquet

was placed and secured by the Life Flight crew.

      In Dr. Brown’s opinion, the cause of James’s death was “[b]lunt force trauma

of the thorax, or the chest, and pelvis and the left lower extremity with traumatic

amputation of the left lower leg.” Dr. Brown determined that the manner of death

was a motor vehicle-motorcycle accident. On cross-examination, Dr. Brown agreed

that for these injuries to have been sustained, the driver that hit James’s motorcycle

did not have to be intoxicated, and the doctor could not say whether intoxication

played a role in the injuries. Dr. Brown testified that James appeared to have been

“a very healthy individual[]” and he found no medical issues or concerns that would

have shortened James’s life.

Testimony of Melissa Bradberry

      Melissa testified that she and James had been married seventeen years, and

they had two teenaged children. Melissa testified that she and James were in a

motorcycle accident on June 25, 2016. Melissa did not remember the accident itself,

but she remembered being in a hospital room hooked up to a monitor and with her

arms bandaged.

                                         20
      According to Melissa, when she first left the hospital, she went to a

rehabilitation facility for just under a month to get her to a point where she did not

require nursing care and to provide physical therapy. Once she was home, she had

to use a wheelchair and her mother moved in to help. Melissa testified she had two

more hospital visits for infections and reconstruction of her residual limb. Melissa

explained that she went home in August 2016 and she was fitted for a prosthetic leg

in about October 2016. She continued to have pain, including phantom pain. Melissa

testified that she lost her left pinkie finger and required occupational therapy for her

hand. Melissa recalled that she had two surgeries.

      Melissa testified that she is a claims specialist for the Social Security

Administration, and she returned to work in November 2016, but she had problems

with memory and word usage, and it became harder for her to keep up with her work.

At the time of trial, Melissa was on extended leave and had filed for disability, and

she continued to have visits with doctors. Melissa could not attend James’s funeral

because she was in the hospital.

      The defense did not call any witnesses.

                               Admission of Evidence

      Appellant’s first issue argues that the trial court erred by admitting autopsy

photos because the photos had “little probative value[]” because “it was uncontested

                                          21
that James Bradberry died as a result of injuries sustained during a vehicle

collision[]” and “there is no question regarding the extent of the injuries Melissa

Bradberry suffered as a result of the accident.” Therefore, autopsy photos were

unnecessary for the jury to determine the cause of death, and the prejudicial value of

such photos outweighed their probative value. Appellant argues that the trial court

failed to conduct a required balancing test and erred in admitting State’s Exhibits 52,

54, 55, 58, 60, 62, 63, 64, and 65. 1 According to Appellant, the autopsy photos

“served no purpose other than inflaming the minds of the jurors as to the guilt or

innocence of the Appellant.”

      According to the State, the photos were highly probative because “they

demonstrated the nature and extent of the injuries James Bradberry sustained,

provided evidence of the cause and manner of his death, and were necessary to the

State in developing its case.”

Applicable Law

      We review a trial court’s ruling on the admission or exclusion of evidence

under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex.



      1  Although Appellant objects to the admission of Exhibits 64 and 65 as
autopsy photos, these exhibits in the appellate record are not autopsy photos. Exhibit
64 is the autopsy report for James, and Exhibit 65 is a candid snapshot of James and
Melissa before the accident.
                                         22
Crim. App. 2002). We will not reverse a trial court’s ruling absent a clear abuse of

discretion. Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000). There is no

abuse of discretion as long as the court’s ruling is within the zone of reasonable

disagreement. De La Paz v. State, 279 SW.3d 336, 343-44 (Tex. Crim. App. 2009).

Moreover, error in the admission or exclusion of evidence will not support reversal

unless the error affected a substantial right of the complaining party. Tex. R. Evid.

103(a); Tex. R. App. P. 44.2(b). “A substantial right is affected when the error had

a substantial and injurious effect or influence in determining the jury’s verdict.” King

v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If the record as a whole

provides fair assurance that the error in evidentiary rulings did not influence the jury,

or influenced the jury only slightly, reversal is neither required nor appropriate.

Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001).

      “Rule 403 favors the admission of relevant evidence and carries a presumption

that relevant evidence will be more probative than prejudicial.” Jones v. State, 944

S.W.2d 642, 652 (Tex. Crim. App. 1996). “Once a Rule 403 objection as to prejudice

versus probative value is invoked, the trial judge has no discretion as to whether or

not to engage in the balancing test required by that rule.” Williams v. State, 958

S.W.2d 186, 195 (Tex. Crim. App. 1997). “However, a trial judge is not required to

sua sponte place any findings he makes or conclusions he draws when engaging in

                                           23
this test into the record[.]” Id. “Rather, a judge is presumed to engage in the required

balancing test once Rule 403 is invoked[.]” Id.

      A court may consider many factors in determining whether the probative

value of photographs is substantially outweighed by the danger of unfair prejudice.

Hayes v. State, 85 S.W.3d 809, 815-16 (Tex. Crim. App. 2002). These factors

include the number of exhibits offered, their gruesomeness, their detail, their size,

whether they are in color or in black and white, whether they are close-up and

whether the body depicted is clothed. See id. (citing Wyatt, 23 S.W.3d at 29). A

court, however, should not be limited to this list. Id. The availability of other means

of proof and the circumstances unique to each individual case may also be noted. Id.

      “A trial court does not err merely because it admits into evidence photographs

which are gruesome.” Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App.

1995). If there is error in the admission of evidence, we must determine whether the

error was harmless under Rule 44.2(b). See Prible v. State, 175 S.W.3d 724, 736-37

(Tex. Crim. App. 2005) (concluding that although admission of autopsy photos was

error under Rule 403, the State’s use of these autopsy photographs did not affect

appellant’s substantial rights); Hayes, 85 S.W.3d at 816 (citing Tex. R. App. P. 44.2;

Tex. R. Evid. 103(a)).



                                          24
Analysis

      The State offered twelve autopsy photographs, Exhibits 52 through 63. The

defense objected to the photographs as “graphic in nature and so dramatic and

emotion-inducing” that the prejudicial effect of the photos would outweigh any

probative value. According to the defense, the testimony of the medical examiner

alone would be sufficient to explain the cause of death.

      The trial court considered each exhibit individually outside the presence of

the jury, including hearing from Dr. Brown what each exhibit purported to show,

and after ruling on the objections on each exhibit, the trial court admitted seven—

Exhibits 52, 54, 55, 58, 60, 62, and 63. The record before us does not affirmatively

show that the trial court refused to conduct a Rule 403 balancing test. Rather, the

trial court overruled the Rule 403 objections. We presume the trial court engaged in

a balancing test before the court ruled on the objection. See Williams, 958 S.W.2d at

195. Furthermore, Rule 403 favors the admission of relevant evidence, and relevant

evidence carries a presumption that it is more probative than prejudicial. See id. at

196. Miller has failed to overcome the presumption that the evidence was more

probative than prejudicial. See id. at 195-96.

      “We will not overturn a case on a non-constitutional error if, after examining

the record as a whole, we have a fair assurance that it did not influence the jury[] or

                                          25
influenced them only slightly.” Hayes, 85 S.W.3d at 816 (citing Schutz, 63 S.W.3d

at 444). In addition to the objected-to autopsy photos, the record includes testimony

by Dr. Brown about the nature and extent of James’s injuries, the autopsy report, and

testimony of other witnesses at the scene who observed that James had lost a leg in

the accident. In addition, Appellant’s brief concedes that “[t]here was no question

that Melisa Ann Miller struck a motorcycle carrying James and Melissa Bradberry

and that James Bradberry died as a result of the injuries he sustained [and] that

Melissa Bradberry suffered serious bodily injuries as a result of the accident.”

Considering the weight of other evidence, we conclude that Miller has not

established that the admission of the autopsy unduly influenced the jury in its

decision, that the admission of the photos affected a substantial right, or that any

reversible harm resulted. See Tex. R. Evid. 44.2; Prible, 175 S.W.3d at 736-37;

Hayes, 85 S.W.3d at 816. We overrule Appellant’s first issue.

                            Sufficiency of the Evidence

      Appellant’s second issue argues that the evidence was legally insufficient to

sustain the jury’s verdict. Appellant challenges the sufficiency of the evidence that

she was intoxicated at the time of the accident based on the testimony of Trooper

Lenderman and Dana Baxter. According to Appellant, the only testimony by

Lenderman that supported an inference of intoxication was that she performed

                                         26
poorly on the HGN test, which she alleged was performed “in less than ideal

conditions[].” Appellant also argues that Baxter testified that the blood levels of

carisoprodol and meprobamate were within the therapeutic range.

Applicable Law

      We understand Appellant’s brief to challenge only whether there was legally

sufficient evidence that she was intoxicated and had lost the normal use of her mental

or physical faculties. Intoxication is an element of felony murder, where the

underlying felony is a felony DWI, and it is an element of intoxication assault. See

Tex. Penal Code Ann. §§ 19.02(b)(3), 49.07(a)(1).

      The State must prove each essential element of an offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). When reviewing the

sufficiency of the evidence, we consider all of the admitted evidence in the light

most favorable to the verdict to determine whether, based on that evidence and the

reasonable inferences from it, a jury was rationally justified in finding the defendant

guilty beyond a reasonable doubt. Id. Applying the Jackson standard, evidence is

insufficient in four circumstances: (1) the record contains no evidence probative of

an element of the offense; (2) the record contains a mere “modicum” of evidence

probative of an element of the offense; (3) the evidence conclusively establishes a

reasonable doubt; and (4) the acts alleged do not constitute the criminal offense

                                          27
charged. See Brister v. State, 414 S.W.3d 336, 342 (Tex. App.—Beaumont 2013),

aff’d, 449 S.W.3d 490 (Tex. Crim. App. 2014) (citing Jackson, 443 U.S. at 314, 318

n.11; Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007)). The evidence is not legally sufficient

if it is based on only speculation. See Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim.

App. 2007).

      The jury is the sole judge of the witnesses’ credibility and the weight to be

given to their testimony. See Jackson, 443 U.S. at 319. Juries can draw any

reasonable inference from the facts so long as each inference is supported by the

evidence. See id.; Hooper, 214 S.W.3d at 16-17. When the record supports

conflicting, reasonable inferences, we presume that the jury resolved the conflicts in

favor of the verdict. Jackson, 443 U.S. at 326.

      Legally sufficient evidence need not exclude every conceivable alternative to

the defendant’s guilt. Johnson v. State, 560 S.W.3d 224, 226 (Tex. Crim. App. 2018)

(citing Ramsey v. State, 473 S.W.3d 805, 811 (Tex. Crim. App. 2015)). The law

requires no particular type of evidence: direct and circumstantial evidence are

equally probative, and “‘circumstantial evidence alone can be sufficient to establish

guilt.’” Id.; Hooper, 214 S.W.3d at 13.



                                          28
                                      Analysis

      Trooper Burman testified that he found a prescription bottle of hydrocodone-

acetaminophen and four carisoprodol pills in Miller’s purse. He also testified that

Miller seemed to be impaired, had slow and deliberate movements, her eyes were

glassy and bloodshot, her speech was slurred, and her coordination was “off[.]” In

his driver examination report, he wrote that Miller appeared to be under the influence

of medication. Trooper Lenderman testified that Miller admitted to him that she had

taken two painkiller pills that day and that when he administered the HGN test,

Miller exhibited six out of six clues. Baxter testified that her analysis of Miller’s

blood sample detected carisoprodol, hydrocodone, meprobamate—CNS depressants

that have additive effects and can cause drowsiness, mental confusion, and slowed

reaction times. Baxter also testified that her analysis detected amphetamine and

methamphetamine. Robert Heifner, one of the motorcyclists riding with James and

Melissa, testified that Miller appeared intoxicated when he saw her at the scene.

Doug Crocker, a passing motorist who stopped at the accident, testified that he spoke

with Miller at the scene and her speech was slow. Peggy Samuels, who heard the

crash and went to the scene with her husband, testified that Miller left her purse on

Samuels’s ATV and there were prescription bottles in the purse. Exhibit 73 depicts

Miller telling Trooper Lenderman that she took three pain pills that day.

                                         29
      Deferring to the jury’s determination of the credibility and weight of

testimony, we cannot say there is no evidence or only mere speculation that Miller

was intoxicated at the time of the accident. See Hooper, 214 S.W.3d at 16; Brister,

414 S.W.3d at 342. To the degree the record supports conflicting inferences, we

presume the jury resolved them in favor of the verdict. See Jackson, 443 U.S. at 326.

We conclude there is legally sufficient evidence to support the jury’s verdict, and

we overrule Appellant’s second issue.

      Having overruled Appellant’s issues, we affirm the trial court’s judgments.

      AFFIRMED.


                                                    _________________________
                                                        LEANNE JOHNSON
                                                              Justice

Submitted on February 25, 2020
Opinion Delivered April 29, 2020
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




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