                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00158-CR


WILLIAM RIVERS DEAS                                                APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

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                        MEMORANDUM OPINION1

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      Upon his plea of guilty, a jury convicted Appellant William Rivers Deas of

intoxication manslaughter with a deadly weapon.        The jury assessed his

punishment at eight years’ confinement and a $10,000 fine.       The trial court

sentenced him accordingly. Appellant brings two issues on appeal, arguing (1)

that the deadly weapon finding should be deleted from the judgment because

neither the trial court nor the jury made an affirmative finding that he used or


      1
      See Tex. R. App. P. 47.4.
exhibited a deadly weapon during the commission of the offense, and the

evidence submitted to support his guilty plea was insufficient to support the

deadly weapon finding; and (2) that the trial court abused its discretion when it

admitted certain State’s exhibits over Appellant’s objection. Because the trial

court committed no reversible error and because the evidence was sufficient to

support the deadly weapon finding, we affirm the trial court’s judgment.

Background Facts

      Appellant struck a Time Warner Cable work truck with his Isuzu Rodeo in

the early morning hours of February 10, 2010. Kevin Becker, a Time Warner

employee, was working in the elevated bucket attached to the truck at the time of

the collision. Becker was thrown from the bucket and killed. Blood tests showed

that Appellant had a blood alcohol concentration of 0.2.

      Appellant was charged with one count of intoxication manslaughter, and

the count contained a deadly weapon allegation. At trial, the prosecutor read the

entire indictment, the trial court asked Appellant how he pled, and Appellant

stated, in the presence of the jury, “Guilty, Your Honor.” The trial court’s charge

instructed the jury to find Appellant “guilty as charged” of intoxication

manslaughter.

Deadly Weapon Finding

      In his first issue, Appellant challenges the deadly weapon finding.       He

argues that, although the jury charge contained a definition of the term “deadly

weapon,” the verdict forms did not ask the jury to make an affirmative finding on


                                        2
the deadly weapon issue.      Appellant also argues that the State must submit

sufficient evidence to encompass every essential element of the alleged offense.

He points out that the State did not submit sufficient evidence of guilt, nor did he

offer a judicial confession encompassing the elements of the offense.

      It is well-established that in a felony case, a plea of guilty before the jury

admits the existence of all necessary elements to establish guilt.2 In the case

now before this court, Appellant entered his plea of guilty before the jury to the

allegations in the entire indictment, including the allegation that the vehicle with

which he caused the death of Becker was a deadly weapon. The trial court

instructed the jury to find Appellant “guilty as charged of Intoxication

Manslaughter in the indictment . . . .” The presiding juror signed the verdict form

that provided, “We, the jury, find [Appellant] guilty of the felony offense of

Intoxication   Manslaughter   with   a   Deadly Weapon       as   alleged   in   the

indictment . . . .” We therefore hold the evidence sufficient to support Appellant’s

conviction and the deadly weapon allegation.        We further hold that the jury

specifically entered a deadly weapon finding. We overrule Appellant’s first issue.

Admissibility of Photographs

      In his second issue, Appellant argues that five photographs admitted as

State’s exhibits 11, 32, 33, 34, and 35 respectively were unduly prejudicial and

that the trial court abused its discretion by admitting them during the punishment


      2
      Holland v. State, 761 S.W.2d 307, 312 (Tex. Crim. App. 1988), cert.
denied, 489 U.S. 1091 (1989).

                                         3
phase because their prejudicial effect substantially outweighed any probative

value.3 To the extent that Appellant complains that any of the challenged exhibits

were not relevant, he did not raise that contention below and it is therefore

forfeited.4

       To be admissible during the punishment phase of the trial, the evidence

presented must be helpful to the jury.5 As the Texas Court of Criminal Appeals

has explained,

       Rule 403 requires that a photograph have some probative value and
       that its probative value not be substantially outweighed by its
       inflammatory nature.       A court may consider many factors in
       determining whether the probative value of photographs is
       substantially outweighed by the danger of unfair prejudice. These
       factors include: the number of exhibits offered, their gruesomeness,
       their detail, their size, whether they are in color or black-and-white,
       whether they are close-up, whether the body depicted is clothed or
       naked, the availability of other means of proof, and other
       circumstances unique to the individual case. The admissibility of
       photographs over an objection is within the sound discretion of the
       trial judge.6

       A trial court abuses its discretion when its decision is arbitrary or

unreasonable.7

       3
        See Tex. R. Evid. 403.
       4
       See Tex. R. App. P. 33.1(a); Wilson v. State, 311 S.W.3d 452, 473–74
(Tex. Crim. App. 2010) (op. on reh’g); Lovill v. State, 319 S.W.3d 687, 691–92
(Tex. Crim. App. 2009); Ford v. State, 305 S.W.3d 530, 532–33 (Tex. Crim. App.
2009); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).
       5
        Erazo v. State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004).
       6
       Williams v. State, 301 S.W.3d 675, 690 (Tex. Crim. App. 2009) (citations
omitted).
       7
        Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009).
                                       4
      The challenged photographs depict Becker’s body or a portion of his body

at the scene of the collision. And the photographs are disturbing. But as the

Texas Court of Criminal Appeals has stated, even gruesome photographs that

merely depict the gruesomeness of the crime scene are not necessarily so

inflammatory that the prejudicial effect substantially outweighs the probative

value.8 The photographs show the violence of the impact and the injuries to

Becker. We therefore hold that the trial court could have properly determined

that their prejudicial effect does not substantially outweigh their probative value.

Consequently, we further hold that the trial court did not abuse its discretion by

admitting the exhibits over Appellant’s objection. We overrule his second issue.

Conclusion

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

judgment.




                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

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

DELIVERED: March 15, 2012


      8
      Long v. State, 823 S.W.2d 259, 273 (Tex. Crim. App. 1991), cert. denied,
505 U.S. 1224 (1992).

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