                              Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION
                                        No. 04-13-00911-CR

                                     Terry Larance JACKSON,
                                             Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the 186th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012CR10320
                           Honorable Maria Teresa Herr, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: February 4, 2015

AFFIRMED AS MODIFIED

           A jury convicted appellant Terry Larance Jackson of murder. The trial court sentenced

Jackson to imprisonment for life. On appeal, Jackson raises two issues, contending: (1) the trial

court erred in admitting into evidence two autopsy photographs because the prejudicial effect of

the photographs outweighed their probative value; and (2) the evidence is legally insufficient to

support the trial court’s assessment of attorney’s fees. We affirm the trial court’s judgment as

modified.
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                                            BACKGROUND

          A detailed rendition of the underlying facts is unnecessary to the disposition of the appeal.

Accordingly, we provide a brief factual and procedural background for context.

          The record establishes Jackson and Veronica Gonzales were once involved in a

relationship. After the relationship ended, Jackson continued to pursue Gonzales, checking on her

whereabouts and continuously calling her. Gonzales described it as “stalking.”

          Eventually, Gonzales began seeing another man, Juan Ricardo Cuenca. One night, when

Cuenca brought Gonzales home, Jackson showed up. The evidence established Jackson stabbed

Cuenca numerous times, resulting in Cuenca’s death.

          Jackson was arrested for Cuenca’s murder and ultimately indicted by a grand jury. After

a jury trial, Jackson was found guilty and sentenced to life in prison. Jackson then perfected this

appeal.

                                               ANALYSIS

          Jackson raises two issues on appeal. First, he contends the trial court erred in admitting

into evidence two autopsy photographs because their prejudicial effect far outweighed their

probative value.      See TEX. R. EVID. 403.      Second, Jackson claims the evidence is legally

insufficient to support the trial court’s assessment of attorney’s fees.

                               Admission of the Autopsy Photographs

          Jackson first complains the trial court should not have admitted State’s Exhibits 45 and 50,

autopsy photographs of the victim, because their probative value was outweighed by the potential

for undue prejudice. See TEX. R. EVID. 403. He argues the autopsy photographs were overly

prejudicial because they depicted not only the victim’s stab wounds, but the incision from the

thoracotomy surgeons performed in an attempt to save the victim’s life.



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                                        Standard of Review

       We review a trial court’s decision to admit photographs under an abuse of discretion

standard. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007). A trial court abuses its

discretion if no reasonable view of the record could support its ruling. Riley v. State, 378 S.W.3d

453, 457 (Tex. Crim. App. 2012). We reverse a trial court’s ruling on the admission of evidence

only if it was outside the zone of reasonable disagreement. McGee v. State, 233 S.W.3d 315, 318

(Tex. Crim. App. 2007); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (opin.

on reh’g). An appellate court should be reluctant to reverse a trial court’s decision on the admission

or exclusion of evidence. Montgomery, 810 S.W.2d at 378.

                                          Applicable Law

       A photograph is generally admissible if oral testimony as to matters depicted in the

photograph is also admissible. Gallo, 239 S.W.3d at 762. That is, if the oral testimony is relevant,

photographs depicting the same testimony are also relevant. Id. Relevant evidence is “evidence

having any tendency to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence.” Id. (quoting

TEX. R. EVID. 401). It is accepted by Texas courts that photographs of the injuries inflicted on a

victim are relevant to a jury’s determination of innocence or guilt. Gallo, 239 S.W.3d at 762. The

relevance of the photographs is not lessened simply because the jury also heard testimony about

the same injuries. Id.

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

presumption that relevant evidence will be more probative than prejudicial.” Aragon v. State, 229

S.W.3d 716, 724 (Tex. App.—San Antonio 2007, no pet.) (citing Jones v. State, 944 S.W.2d 642,

652–53 (Tex. Crim. App. 1996); Legate v. State, 52 S.W.3d 797, 807 (Tex. App.—San Antonio

2001, pet. ref’d)). However, pursuant to Rule 403, otherwise relevant evidence may be excluded
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when its probative value is “substantially outweighed by the danger of unfair prejudice, confusion

of the issue, or misleading the jury, or by considerations of undue delay, or needless presentation

of cumulative evidence.” TEX. R. EVID. 403; see Gigliobianco v. State, 210 S.W.3d 637, 641–42

(Tex. Crim. App. 2006). “Evidence is unfairly prejudicial when it has ‘an undue tendency to

suggest that a decision be made on an improper basis.’” Reese v. State, 33 S.W.3d 238, 240 (Tex.

Crim. App. 2000) (quoting Montgomery, 810 S.W.2d at 389). When a court is asked to determine

whether the probative value of photographs is substantially outweighed by the danger of unfair

prejudice, it may consider several 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, and whether the body depicted is naked or clothed.” Gallo, 239 S.W.3d at 762. A court

must also consider “[t]he availability of other means of proof and the circumstances unique to each

individual case.” Id. These considerations are part of the Rule 403 analysis, allowing the court to

determine: (1) how probative the evidence is; (2) the potential for the evidence to affect the jury

in some irrational, indelible way; (3) the time the proponent needs to develop the evidence; and

(4) the proponent’s need for the evidence. Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim.

App. 2006); Bibbs v. State, 371 S.W.3d 564, 575 (Tex. App.—Amarillo 2012, pet. ref’d), cert.

denied, 133 S.Ct. 1591 (2013). The court of criminal appeals reaffirmed the four factors in its

Gigliobianco opinion, but restated the four factors as six. 210 S.W.3d at 641–42. However, this

does not appear to be a substantive change. See Newton v. State, 301 S.W.3d 315, 319 n.3 (Tex.

App.—Waco 2009, pet. ref’d).

       Autopsy photographs are generally admissible unless they depict some mutilation caused

by the autopsy itself. Rayford v. State, 125 S.W.3d 521, 529 (Tex. Crim. App. 2003). However,

if the troubling nature of the photographs is due primarily to the injuries caused by the defendant,

then the changes to the body caused by the autopsy are only of minor significance. See Hayes v.
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State, 85 S.W.3d 809, 816 (Tex. Crim. App. 2002) (citing Santellan v. State, 939 S.W.2d 155, 173

(Tex. Crim. App. 1997)).

                                           Application

       Jackson contests the introduction of the autopsy photographs — State’s Exhibits 45 and 50

— because they show not only the victim’s stab wounds, but also a large gash in the victim’s chest

from a thoracotomy procedure used by surgeons in an attempt to save the victim’s life. Jackson

contends autopsy photographs are not admissible when the victim has been mutilated during the

autopsy itself and therefore the photographs depicting the wound caused by the thoracotomy

should be inadmissible as well. See Rayford, 125 S.W.3d at 529; Santellan, 939 S.W.2d at 172.

Jackson claims the testimony of the medical examiner and the other autopsy photographs were

sufficient for the jury to determine the victim had perished from his stab wounds and the additional

pictures were only used to inflame the jury. See TEX. R. EVID. 403.

       The autopsy photographs in questions were used demonstratively to accompany verbal

testimony by a medical expert. In addition, the photographs did not contain any mutilations caused

by the autopsy itself. Rather, the photographs depict stab wounds caused by the actions of the

defendant, as well as one incision caused by a medical procedure in an attempt to save the victim’s

life. It appears Jackson contends that because a wound caused by a medical procedure was

depicted in the autopsy photographs, the prejudicial effect outweighs the probative value of the

photographs. We disagree.

       As noted above, because photographs are generally admissible when accompanied by

verbal testimony, particularly when that testimony is from a medical expert used to explain a

victim’s wounds, Jackson’s burden of proving the trial court abused its discretion is substantial.

The autopsy photographs had significant probative value, showing Jackson repeatedly stabbed the

victim, which is certainly useful to a jury in determining guilt. Furthermore, we hold the
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photographs were not likely to affect the jury in some irrational way — jurors already knew

Jackson had been stabbed numerous times. See Shuffield, 189 S.W.3d at 787; Bibbs, 371 S.W.3d

at 575. The photographs were demonstrative pictorial evidence used to accompany the medical

testimony regarding the number and type of stab wounds of the victim. Additionally, the

gruesomeness of the photographs, given the circumstances of the murder, was minimal and

unlikely to “inflame” a jury who was already hearing testimony about a victim who was stabbed

fifteen times.

       After reviewing the factors relevant to admission of autopsy photographs, we cannot

conclude that the photographs at issue had a prejudicial effect that far outweighed their probative

value. Accordingly, we hold the trial court did not err in admitting the autopsy photographs.

                                  Attorney’s Fees — Sufficiency

       Jackson next contends the evidence is legally insufficient to support the imposition of

attorney’s fees. In its judgment, the trial court assessed court costs in the amount of “$334.00

PLUS ATTY FEES.” Under Article 26.05(g) of the Texas Code of Criminal Procedure, “the

defendant’s financial resources and ability to pay are critical elements in the trial court’s

determination of the propriety of ordering reimbursement of costs and fees.” Cates v. State, 402

S.W.3d 205, 251 (Tex. Crim. App. 2013) (quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex.

Crim. App. 2010)); see TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2014). Article

26.05(g) requires a present factual determination of the defendant’s financial resources without

speculation regarding possible future resources. See Cates, 402 S.W.3d at 252; see also TEX. CODE

CRIM. PROC. ANN. art. 26.05(g).

       Here, the trial court appointed trial counsel to represent Jackson, and the court would not

have done so unless Jackson was indigent. See TEX. CODE CRIM. PROC. ANN. art. 26.04 (stating

criminal defendants are not entitled to court appointed counsel unless they are indigent). Once he
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was determined to be indigent, Jackson is presumed to have remained indigent for the remainder

of the proceedings absent a factual determination of a material change in his financial

circumstances. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Cates, 402 S.W.3d at 251.

       There is nothing in the record to suggest a factual finding by the trial court regarding a

change in Jackson’s financial circumstances, and no evidence to that effect. Moreover, a change

in financial circumstances is belied by the fact that the trial court, after Jackson’s conviction,

appointed appellate counsel for Jackson. The State agrees that Jackson’s indigent status precluded

the assessment of attorney’s fees as court costs. Accordingly, we hold there is no evidence in the

record to rebut Jackson’s presumed indigency. We therefore sustain this issue and reform the

judgment and the bill of costs to delete the assessment of attorney’s fees against Jackson. See

Solomon v. State, 392 S.W.3d 309, 311 (Tex. App.—San Antonio 2012, no pet.).

                                          CONCLUSION

       Based on the foregoing, we affirm the judgment as modified, specifically modifying the

trial court’s judgment to eliminate the imposition of attorney’s fees against Jackson.


                                                 Marialyn Barnard, Justice

Do Not Publish




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