                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-14-00025-CR

                                       Frances Rosalez FORD,
                                              Appellant

                                                 v.
                                                The
                                        The STATE of Texas,
                                              Appellee

                     From the 227th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2011CR2986
                              Honorable Dick Alcala, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: April 1, 2015

AFFIRMED AS MODIFIED

           Frances Rosalez Ford pled guilty to the charge of felony murder and was sentenced to life

imprisonment. On appeal, Ford contends the trial court erred in allowing a jury view of the

vehicles involved in the automobile collision resulting in the complainant’s death. Ford also

challenges the assessment of attorney’s fees against her. We modify the judgment to delete the

assessment of attorney’s fees, and we affirm the judgment as modified.
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                                                 BACKGROUND

        Ford was driving the wrong way on the northbound lanes of a highway when she collided

with a vehicle driven by Lawrence Belcher. Belcher died at the scene. Ford was taken to the

hospital. The blood sample drawn by the hospital showed Ford’s blood alcohol content to be .279,

while the sample drawn three hours later at the request of law enforcement showed her blood

alcohol content to be .19. Because Ford had two prior DWI convictions, she was charged with

felony murder, with the third DWI being the underlying felony. 1 Ford pled guilty, and a jury

assessed Ford’s sentence at life imprisonment. Ford appeals.

                                   JURY VIEW AND UNFAIR PREJUDICE

        In her first two issues, Ford contends the trial court erred in allowing the jury to view the

vehicles involved in the collision. At trial, Ford objected to the jury view on two grounds: (1) the

jury view was unduly prejudicial; and (2) the vehicles had been at the impound lot for three years

and their condition had changed. The State responded the photographs taken at the scene did not

adequately show the damage to the vehicles, and the jury needed to view the manner in which the

vehicles were positioned at the time of the collision to understand “how the impact happened.”

The State explained the vehicles separated after impact, so their position at the time of impact was

not shown in the photographs taken at the scene. The State further explained the vehicles would

be brought to the courthouse, and little time would be needed for the jury view. The State did not

anticipate any questions being asked while the jury viewed the vehicles, but the jury would quickly

walk around the vehicles to view the damage. The State argued it would not be “unduly prejudicial




1
  A person commits the offense of felony murder if he commits or attempts to commit a felony, other than
manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the
commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death
of an individual. TEX. PENAL CODE ANN. § 19.02(b)(3) (West 2011).

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to see what type of damage was actually caused — that caused this individual to be killed.” The

trial court overruled Ford’s objections.

        1.     Jury View During Trial

        After several other witnesses who saw Ford driving or the resulting collision testified,

Sergeant Scott Foulke testified regarding the steps taken during the investigation of the scene, and

a diagram was introduced into evidence showing the area in which the impact was determined to

have occurred and the location of the vehicles after the collision. The investigation did not show

that either of the vehicles braked prior to impact. Sergeant Foulke stated that the car traveling

north would have reduced visibility because of a hill and a curve. Sergeant Foulke estimated that

the car traveling in the right direction would have had approximately 2.8 to 3.2 seconds to react.

The State then approached the bench and requested the jury view. The trial court instructed the

jury:

        THE COURT: All right. Okay.
                 Members of the jury, at this time, we’re going to take you outside. The
        bailiffs — you are to follow them and stay with them at all times to do what’s called
        a jury view of the vehicles.
                 During that time, you are to observe the vehicles once we get outside.
        You’re not to converse or comment at all with each other or with anyone else for
        that matter while you’re doing that. Just make your view. Don’t — don’t touch
        anything. Just view it. And when you’ve completed that, then you’ll be brought
        back in.

        2.     Jury View

        “[T]he question of whether to grant or deny a request for a jury view rests ‘within the trial

court’s [sound] discretion.’” Mauricio v. State, 153 S.W.3d 389, 393 (Tex. Crim. App. 2005)

(quoting Jones v. State, 843 S.W.2d 487, 499 (Tex. Crim. App. 1992)). A trial court abuses its

discretion if it acts without reference to any guiding rules or principles. Lyles v. State, 850 S.W.2d

497, 502 (Tex. Crim. App. 1993); Reyes v. State, 274 S.W.3d 724, 729 (Tex. App.—San Antonio



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2008, pet. ref’d). A trial court does not abuse its discretion unless its ruling “falls outside the zone

of reasonable disagreement.” Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002).

       In exercising its discretion to grant or deny a request for a jury view, the trial court must

consider the totality of the circumstances of the case, including, but not limited to: (1) the timing

of the request for the jury view; (2) the difficulty and expense of arranging it; (3) the importance

of the information to be gained by it; (4) the extent to which that information has been or could be

secured from more convenient sources (e.g., photographs, videotapes, maps, or diagrams); and (5)

the extent to which the place or object to be viewed may have changed in appearance since the

controversy began. Mauricio, 153 S.W.3d at 393. In addition, the trial court must provide

opposing counsel an opportunity to be heard on the question. Id.

       With regard to the timing of the request, the State filed a notice of its intent to have the jury

view evidence outside the courtroom on December 10, 2013.               Before trial commenced on

December 17, 2013, the trial court considered and granted the State’s motion. Therefore, the

record reflects that the request for the jury view was made in a timely fashion. In addition, the

vehicles were brought to the courthouse; therefore, the arranging of the jury view was not difficult,

and the trial court could have concluded the jury view would be quick. In responding to defense

counsel’s objections, the State explained the importance of the information to be gained, asserting

the photographs taken at the scene did not adequately show the damage to the vehicles or the

manner in which the vehicles collided. Finally, although defense counsel asserted the vehicles had

been at the impound lot for three years, defense counsel did not establish that the condition of the

vehicles had changed other than with regard to possible dust and fingerprints. Accordingly, based

on the record presented, we cannot conclude the trial court abused its discretion in granting the

jury view.



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       3.      Unfair Prejudice

       Ford also objected that the jury view would be unduly prejudicial. The State contends this

court should not consider whether the jury view should be excluded under Rule 403 as a separate

issue; however, the State cites no support for its contention. In the Houston court’s decision in

Mauricio, the appellant also raised a Rule 403 issue. See Mauricio v. State, 104 S.W.3d 919, 920

n.1 (Tex. App.—Houston [14th Dist.] 2003), aff’d, 153 S.W.3d 389 (2005). The Houston court

explained that it was not addressing the Rule 403 issue because it was not adequately briefed. Id.

Because we are not convinced that a Rule 403 objection to a jury view cannot be made in addition

to an objection based on the law regarding jury views, we address Ford’s issue.

       Rule 403 of the Texas Rules of Evidence provides, in pertinent part, “Although relevant,

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

prejudice.” TEX. R. EVID. 403. In conducting a Rule 403 analysis, the following factors are

considered: (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). “Evidence

is unfairly prejudicial when it has ‘an undue tendency to suggest that a decision be made on an

improper basis.’” Pawlak v. State, 420 S.W.3d 807, 809 (Tex. Crim. App. 2013) (quoting

Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (op. on reh’g)). “All evidence

is prejudicial to one party or the other — it is only when there is clear disparity between the degree

of prejudice of the offered evidence and its probative value that Rule 403 is applicable.”

Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012). Similar to a trial court’s ruling

on jury views, we review a trial court’s ruling under Rule 403 for an abuse of discretion. Pawlak,

420 S.W.3d at 810.



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       As discussed in reviewing the jury view issue, the probative value of the evidence was that

it showed the actual damage to the vehicles and the manner in which the vehicles collided.

Although photographs of the vehicles at the scene were introduced into evidence, the photographs

were dark, and the positioning of the vehicles in the photographs made it difficult to visualize the

manner in which the two vehicles collided. Similarly, although the diagram showed the area of

impact and location of the vehicles after impact, the State wanted the jury to view the vehicles as

they were positioned at impact to understand the nature of the collision and the resulting damage.

Although the record does not reflect the exact amount of time it took to conduct the jury view, the

vehicles were brought to the courthouse, and the trial court’s admonishments made it clear that the

jury view would be quickly completed. Finally, with regard to the potential to impress the jury in

some irrational, yet indelible, way, Ford argues in her brief that “the view of the hulks ‘in the flesh’

had the tendency to indelibly impress the jury on the violence necessary to achieve the damage.”

The photographs and testimony that were admitted into evidence, however, should already have

impressed upon the jury the violent nature of the collision. Viewing the positioning of the vehicles

would only enable the jury to visualize the manner in which they impacted. Accordingly, having

considered the Rule 403 factors, we cannot conclude the trial court abused its discretion in

overruling Ford’s Rule 403 objection.

       4.      Harmless Error

       Even if we are incorrect in holding the trial court did not abuse its discretion in allowing

the jury view, any error in allowing the jury view would not require a reversal unless it affected

Ford’s substantial rights. TEX. R. APP. P. 44.2. “A substantial right is affected when the error had

a substantial and injurious effect or influence in determining the jury’s verdict.” Cole v. State, 330

S.W.3d 253, 280 (Tex. Crim. App. 2010).            In conducting this harm analysis, we consider

“everything in the record” including other testimony and evidence before the jury and “the
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character of the alleged error and how it might be considered in connection with other evidence in

the case.” Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). This court will not

overturn Ford’s conviction for non-constitutional error if this court, “after examining the record as

a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.”

Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

       In addition to the evidence that Ford was driving the wrong way down the highway and

subsequent testing showed her blood alcohol content to be .279, far over the legal limit of 0.08,

the jury also heard the testimony of a truck driver who paced Ford’s vehicle as he traveled in the

southbound lanes, honking his air horn and flashing his lights in an effort to get Ford’s attention

for over three miles. Furthermore, the jury heard evidence that Ford was arrested for a first DWI

in February of 2008. Although Ford could have been convicted of a felony because her ten-year-

old daughter was in the vehicle, she was convicted only of a misdemeanor and placed on probation

in March of 2009. In June of 2008, Ford was arrested for a second DWI, and was also placed on

probation for that offense in August of 2010. Two months later, in October of 2010, she caused

the fatal collision that resulted in Belcher’s death.

       In addition to the foregoing evidence, the jury also heard Ford’s own testimony. Ford

testified that she only had one drink that night and believed someone placed a drug in her drink;

however, the toxicology results did not support her belief. Ford testified she was not aware the

trial court previously ordered her not to drive and offered a series of excuses for the reason her

vehicle did not contain the ignition interlock system the court previously ordered. Because the

jury heard evidence that Belcher had a blood alcohol level of .13, Ford was asked if she believed

the alcohol in Belcher’s system contributed to the accident, and she responded that she did although

she did not blame Belcher for the accident. Ford also testified that although she was driving the

wrong way, she believed she was “driving right.” Because Ford stated she was requesting
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leniency, the prosecutor asked, “Ms. Ford, do you acknowledge that you’ve already been shown

leniency [with regard to the two prior DWI convictions]?” Ford responded, “No.”

       Having examined the record as a whole, even if we assume the trial court abused its

discretion in allowing the jury view, we have “fair assurance that the error did not influence the

jury, or had but a slight effect.” Johnson, 967 S.W.2d at 417. Accordingly, any error by the trial

court in allowing the jury view was harmless.

                                        ATTORNEY’S FEES

       In her third issue, Ford contends the evidence is legally insufficient to support the trial

court’s assessment of attorney’s fees against her, noting the record reflects that she had appointed

counsel at trial and on appeal. See Vogt v. State, 421 S.W.3d 233, 246 (Tex. App.—San Antonio

2013, pet. ref’d); Smith v. State, 421 S.W.3d 161, 165 (Tex. App.—San Antonio 2013, no pet.)

The State concedes the attorney’s fees were improperly assessed. Accordingly, Ford’s third issue

is sustained, and the trial court’s judgment is modified to delete the assessment of attorney’s fees.

                                            CONCLUSION

       The trial court’s judgment is modified to delete the assessment of attorney’s fees. The trial

court’s judgment is affirmed as modified.

                                                  Marialyn Barnard, Justice

DO NOT PUBLISH




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