Opinion filed November 20, 2014




                                      In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-12-00351-CR
                                  __________

                 JAMES DOYLE BURWELL, Appellant
                                         V.
                    THE STATE OF TEXAS, Appellee


                     On Appeal from the 70th District Court
                              Ector County, Texas
                        Trial Court Cause No. A-39,270


                     MEMORANDUM OPINION
      The jury found James Doyle Burwell guilty of three counts of capital murder
as charged in the indictment. The State did not seek the death penalty, and the trial
court sentenced Appellant to confinement for life without parole for each count.
See TEX. PENAL CODE ANN. § 12.31(a)(2) (West Supp. 2014); TEX. CODE CRIM.
PROC. ANN. art. 37.071, § 1 (West Supp. 2014). Because three capital murder
convictions based on the same unlawful entry in this case violate the Double
Jeopardy Clause, 1 as the State agrees, we vacate two of those convictions and
uphold the remaining conviction.
       After working to remodel the home of Richard “Dick” Jess Glover and
Peggy Colleene Glover the previous Saturday, construction workers arrived on
Monday morning and found the Glovers murdered in their home. Richard had
been stabbed eight times, and Peggy’s throat had been cut. Richard’s SUV, a
Lincoln Navigator, was also missing. Richard’s children had previously installed a
GPS monitor on the missing SUV, and they determined that it was located at an
address in Lubbock, Texas. Lubbock police officers went to the address, located
the SUV in front of a motel, and began surveillance. Within half an hour, officers
saw Appellant approach the vehicle, use a keyless remote to unlock the doors, and
place a backpack in the front passenger seat. The officers immediately arrested
him.
       Officers searched the SUV, Appellant’s person, and his pickup, which had
been found just two blocks from the Glovers’ home. Officers found several of
Peggy Glover’s credit cards in Appellant’s wallet, and they found several items
inside the stolen SUV that had been purchased with those cards, including a laptop,
laptop accessories, cell phones, and the backpack. In the stolen SUV, there were
several receipts for the purchases. Officers used the information from the receipts
to obtain surveillance footage of Appellant using Peggy Glover’s credit cards to
make several purchases.
       While the Lubbock officers were arresting Appellant, crime scene
investigators in Odessa collected DNA evidence, lifted fingerprints, and made
castings of shoe impressions at the Glovers’ home. Although Appellant’s DNA
was not found anywhere inside or around the home, Richard’s blood was found on
Appellant’s boots, and Appellant’s fingerprints were found on the driver’s side
       1   U.S. CONST. amend. V.


                                        2
doorjamb of a Mercedes Benz that was located in the garage. Bradley Mullins, a
trace analyst from the Texas Department of Public Safety Crime Laboratory,
compared impressions of shoe prints from the scene with Appellant’s boots and
concluded that several of the shoe impressions “could have been made” by
Appellant’s boots because they were the same size and had the same tread design.
The impressions did not match the shoes of the construction workers or the officers
who were present at the scene. Mullins also was able to exclude the victims as a
match.
      Appellant maintained at trial that, while the State’s evidence showed that he
used Peggy Glover’s credit cards and drove Richard Glover’s vehicle, it did not
prove beyond a reasonable doubt that he killed the Glovers. After four days of
testimony, the jury found Appellant guilty of all three counts of capital murder.
      In his first issue on appeal, Appellant complains that the three convictions
for capital murder violated the Fifth Amendment’s Double Jeopardy Clause. In the
indictment, it was alleged in count one that Appellant committed capital murder by
intentionally and knowingly killing Richard Glover and Peggy Glover during the
same criminal transaction. It was alleged in count two that Appellant intentionally
killed Peggy Glover in the course of committing robbery and burglary and in count
three that Appellant intentionally killed Richard Glover in the course of
committing robbery and burglary. The State agrees that double jeopardy bars
simultaneous convictions for more than one of the three capital murder
convictions.
      When multiple convictions violate the Double Jeopardy Clause, we retain
the conviction for the “most serious” offense and set aside the others. Ex parte
Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006). When, as here, the degree
of the offense and the term of years assessed by the factfinder are the same, we
have been instructed to consider the fine assessed and restitution ordered. See id.

                                          3
at 338–39.     However, all three of Appellant’s convictions carry the same
punishment, and the trial court did not order Appellant to pay a fine or restitution.
      Although the Court of Criminal Appeals has not addressed this issue
directly, it has indicated that, all punishment factors being equal, the conviction
that should be retained is generally the offense named on the first jury verdict
form, and the court noted that this is generally the offense charged in count one of
the indictment. Id. at 339 n.8. Both parties in this case agree that we should retain
the conviction under count one and vacate the convictions under counts two and
three, so we need not determine which conviction is the “most serious.”
Accordingly, we vacate Appellant’s convictions under count two and count three
and retain the conviction under count one. Appellant’s first issue is sustained.
      We next address Appellant’s challenge to the sufficiency of the evidence.
We review the sufficiency of the evidence under the standard set forth in
Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—
Eastland 2010, pet. ref’d). The reviewing court considers all of the evidence in the
light most favorable to the verdict and determines whether any rational trier of fact
could have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319. We defer to the jury’s credibility determinations and the
weight to be given to the testimony because it is the jury’s duty to resolve conflicts
in the testimony, weigh the evidence, and draw reasonable inferences from the
facts. Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007). We presume that the jury resolved conflicting evidence in favor
of the verdict, and we defer to that determination. Jackson, 443 U.S. at 326.
      Appellant specifically challenges the lack of scientific evidence and
eyewitness testimony. Appellant argues that the evidence is insufficient because
his fingerprints and DNA were found neither on the murder weapon nor inside the

                                          4
Glovers’ home, because no one could place Appellant near the Glovers’ home at
the time of the murders, and because the experts could only conclude that
Appellant “could have” made the shoe prints in and around the home. The State
argues that Appellant improperly focuses on a lack of certain types of evidence
rather than considering the evidence that was offered and admitted at trial and that
“the necessary inferences made by the jury” were supported by the evidence when
viewed in the light most favorable to the verdict. We agree.
      The State must prove beyond a reasonable doubt that the offense was
committed and that the accused is the person who committed the crime. See
Miller v. State, 667 S.W.2d 773, 776 (Tex. Crim. App. 1984). The State may
prove identity through direct or circumstantial evidence. See Earls v. State, 707
S.W.2d 82, 85 (Tex. Crim. App. 1986). Identity may be established through
inferences. Roberson v. State, 16 S.W.3d 156, 157 (Tex. App.—Austin 2000, pet.
ref’d). “Circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
      Within hours of the discovery of the Glovers’ bodies, Appellant was found
in possession of the Glovers’ vehicle and other personal items, and Appellant’s
vehicle was discovered a couple of blocks from the Glovers’ home. Richard’s
stolen SUV was parked outside a motel room Appellant had rented. Appellant
used the keyless remote to unlock the SUV, and his palm print was found inside.
Peggy’s credit cards and Appellant’s social security card were inside his wallet,
and Appellant had used several of her credit cards to charge more than fifteen
hundred dollars’ worth of snacks, cell phones, a laptop, and other items. At the
Glovers’ home, Appellant’s fingerprints were found on the doorjamb of a vehicle
in their garage. Of the nine shoe prints at the scene, each was tied to either
Appellant or Richard Glover and did not match the shoes of any of the construction

                                         5
workers or police officers who were at the scene. Regardless of whose shoe prints
were at the scene, Richard’s blood was found on Appellant’s boots.
      Viewing the evidence in the light most favorable to the verdict, we must
conclude that any rational trier of fact could have found beyond a reasonable doubt
that Appellant murdered Richard and Peggy Glover in the same criminal
transaction. See Jackson, 443 U.S. at 319. Appellant’s seventh issue is overruled.
      In his second and third issues, Appellant argues that the trial court erred
when it denied his request for jury instructions on the lesser included offenses of
aggravated robbery and burglary of a habitation. During the charge conference,
Appellant requested these instructions as lesser included offenses of capital murder
as charged in counts two and three. Appellant did not contend at trial, nor does he
argue on appeal, that aggravated robbery and burglary of a habitation are lesser
included offenses of capital murder as charged in count one of the indictment.
Although both parties agreed in Issue One that we should vacate Appellant’s
convictions under the second and third counts and retain his conviction under
count one, neither party addressed whether we must now consider whether it was
reversible error to refuse instructions on lesser included offenses of counts two and
three. That is an issue we need not decide in this case because, even if we were to
find that the refusal was error, we must conclude that any error from refusing the
instructions was harmless in this case.
      Properly preserved charge error requires reversal if the accused suffered
some harm from the error. TEX. CODE CRIM. PROC. ANN. art. 36.19 (West 2006);
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). To assess harm,
we consider the entire jury charge, the state of the evidence, the contested issues,
the weight of the probative evidence, the arguments of counsel, and any other
relevant information contained in the record. Almanza, 686 S.W.2d at 171.



                                          6
      Appellant cites Saunders v. State, 913 S.W.2d 564, 571 (Tex. Crim. App.
1995), for the proposition that “Texas courts routinely find ‘some’ harm and
reverse” when the trial court erroneously refuses to submit a requested lesser
included offense if that refusal “leaves [the] jury with sole option either to convict
defendant of [the] greater offense or to acquit him” and argues that he was harmed
because the trial court “left the jury with the sole option either to convict him of
murder or to acquit him.” Although the trial court in this case refused to instruct
the jury on burglary of a habitation, it did submit the lesser included offense of
murder; therefore, the jury was not left with the sole option to convict of the
greater offense or to acquit. The Court of Criminal Appeals explained that the
danger in leaving the jury a single option lies in “the possibility that a jury,
believing the defendant to have committed some crime, but given only the option
to convict him of a greater offense, may have chosen to find him guilty of that
greater offense, rather than to acquit him altogether, even though it had a
reasonable doubt he really committed the greater offense.” Saunders, 913 S.W.2d
at 571 (citing Beck v. Alabama, 447 U.S. 625 (1980)).
      If that were the case here, the jury was not required to find Appellant guilty
of all three counts and could have decided to convict Appellant of either or both
counts of murder in the course of robbery or burglary and to acquit him of
committing two intentional murders during the same criminal transaction. But it
did not.
      We can tell from the jury’s verdicts that it rejected Appellant’s theory that he
committed burglary but did not kill the Glovers because it found him guilty on all
three counts. In the charge, the jury was instructed to find Appellant guilty of
capital murder as charged in count one of the indictment if it found beyond a
reasonable doubt that Appellant “intentionally or knowingly cause[d] the death of
[Richard Glover] by cutting or stabbing [him] with a knife,” that he “intentionally

                                          7
or knowingly cause[d] the death of [Peggy Glover] by cutting or stabbing [her]
with a knife,” and that “both murders were committed during the same criminal
transaction.” The jury found Appellant guilty of capital murder “as charged in
Count One of the Indictment.” By its verdict, the jury found that Appellant killed
Richard Glover by cutting or stabbing him with a knife and that he killed Peggy
Glover by cutting or stabbing her with a knife. In addition, the jury also found that
Appellant killed Peggy Glover in the course of committing robbery or burglary and
that he killed Richard Glover in the course of committing robbery or burglary.
      We have already detailed the evidence from trial and identified the disputed
facts, and it is clear from closing arguments that the jury knew that the dispute
centered on whether Appellant was the person who committed the murders.
Because the jury found Appellant guilty of all three counts of capital murder, we
conclude that he suffered no harm from the trial court’s erroneous refusal to submit
an instruction on aggravated robbery or an instruction on burglary of a habitation.
Appellant’s second and third issues are overruled.
      In his fourth and fifth issues, Appellant challenges the qualifications of two
crime scene investigators. Appellant complains that the State failed to establish
that Pat Harris was qualified to testify about the comparison of fingerprints or shoe
impressions and that the State also failed to establish that Stacy Cannady was
qualified as an expert in DNA swabbing or fingerprint comparison.
      We review a trial court’s determination that a witness is qualified as an
expert and its ruling on the admission of expert testimony for an abuse of
discretion.   Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006).
“Absent a clear abuse of that discretion,” we will not disturb the trial court’s
decision to admit or exclude testimony. Wyatt v. State, 23 S.W.3d 18, 27 (Tex.
Crim. App. 2000). We review the trial court’s ruling in light of the evidence



                                         8
before the court at the time of the ruling. Rodgers v. State, 205 S.W.3d 525, 528–
29 (Tex. Crim. App. 2006).
        If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise. TEX. R. EVID. 702. “The special
knowledge which qualifies a witness to give an expert opinion may be derived
from specialized education, practical experience, a study of technical works, or a
varying combination of these things.” Penry v. State, 903 S.W.2d 715, 762 (Tex.
Crim. App. 1995). “Because the possible spectrum of education, skill, and training
is so wide, a trial court has great discretion in determining whether a witness
possesses sufficient qualifications to assist the jury as an expert on a specific topic
in a particular case.” Rodgers, 205 S.W.3d at 527–28. To evaluate whether a trial
court abused its discretion when it determined that a witness was qualified as an
expert, we consider three criteria: (1) Is the field of expertise complex? (2) How
conclusive is the expert’s opinion? (3) How central is the area of expertise to the
resolution of the lawsuit? Id.
        We first address Appellant’s contention that the State failed to establish that
Harris was qualified as an expert in comparing shoe impressions. Appellant
contends that a “one-week course” on impression comparisons and “ten to fifteen
on-the-job comparisons” were insufficient to qualify Harris as an expert in this
area.
        Testimony about the comparison of shoe impressions has long been
admissible in Texas “by either lay or expert witnesses.” Id. at 532. In Rodgers,
the parties conceded that the witness was an expert in fingerprint comparison but
disputed whether the witness was an expert in shoe- or tire-impression comparison.
Id. at 529. The witness had attended courses on shoe and tire impressions at the

                                            9
Dallas County Sheriff’s Office, the University of North Texas, and an FBI
conference. Id. The defendant’s voir dire revealed, however, that the witness
never graduated from college, never published articles on the issue, and “had only
a few days of class work specific to the matching of shoe and tire imprints.” Id.
Regardless, the Court of Criminal Appeals explained that lay and expert testimony
about the comparison of shoe prints is admissible because the field “is not
particularly complex, the witness’s opinions are not conclusive, and consequently,
they are generally not pivotal to the resolution of the case.” Id. at 533 (footnotes
omitted).
      Here, the State established that Harris had been a crime scene technician for
the Odessa Police Department for ten years. Harris had attended two FBI shoe and
tire impression courses in Quantico, Virginia. In the initial week-long class, Harris
learned about making tire impressions and comparisons, and a year later, Harris
attended another one-week class related to shoe impressions and comparisons. As
part of his course work, Harris had compared twenty to twenty-five shoe
impressions, and he had compared another fifteen as part of his work duties.
      We cannot conclude that it was error to admit Harris’s testimony related to
shoe-impression comparison because this is not a complex field of expertise.
Moreover, Harris did not testify that Appellant’s boots conclusively matched the
impressions at the scene but, rather, that Appellant’s boots could have made the
impressions and that the impressions could not be matched to the shoes of the
construction workers, officers, or family who were at the scene. See id. at 527–28.
      Even if it was error to admit Harris’s testimony, any error would be harmless
for two reasons.     First, Mullins, a trace analyst from the crime lab whose
qualifications were not challenged, connected each of the nine shoe impressions
from the scene to either Appellant’s boots or Richard Glover’s shoes. Mullins
concluded that several impressions “could have been made” by Appellant because

                                         10
the impressions had the same size and tread design as Appellant’s boots. Mullins
concluded that several other impressions were “probably made” by Richard Glover
because they had the same size, tread design, and degree of wear as his shoes.
Because Richard Glover’s shoes had wear patterns, Mullins was able to eliminate
him as a match to the remaining shoe impressions. Second, determining who made
the impressions was not central to the resolution of the case because Richard’s
blood was found on Appellant’s boots and because Appellant did not challenge
that he was present at the scene. We cannot conclude that the trial court abused its
discretion. See id.
      In connection with Appellant’s challenge of Cannady’s qualifications to
swab objects for the presence of DNA, he attacks her lack of formal training, her
failure to detail her on-the-job training, and her failure to identify who had trained
her. Cannady was asked to swab the doorknob and dead bolt of a door in the
master bedroom that led to the backyard. To swab dry objects for DNA, Cannady
explained that she puts a couple of drops of distilled water on a swab that has an
exposed tip, swabs the area potentially containing DNA, and places the swab in an
envelope for testing at the lab.
      We cannot conclude that the trial court abused its discretion when it
overruled Appellant’s objections to Cannady’s qualifications to collect DNA.
While DNA analysis is a complex field, the collection of DNA evidence is not a
particularly complex process, and Cannady did not purport to perform any
particularly specialized analysis of the DNA or give any opinion related to the
results of the DNA tests. See id. at 528 (“The degree of education, training, or
experience . . . is directly related to the complexity of the field about which he
proposes to testify.”). Even if the evidence does not establish that Cannady was
qualified, any purported error would be harmless because the forensic scientist



                                         11
who examined the swabs of the doorknob did not testify about the results of any
testing of those swabs. See TEX. R. APP. P. 44.2(b).
          We next address Appellant’s complaint that the State failed to establish that
Harris and Cannady were qualified as experts in fingerprint comparison. However,
we need not determine whether the record shows that Cannady and Harris were
qualified because any resulting error would be harmless in light of other testimony.
          Another crime scene investigator, Anita Todd, verified Cannady’s results
and Harris’s results and testified as to those results at trial, and Appellant did not
challenge Todd’s qualifications. The record shows that Todd had been a crime
scene investigator in Odessa for nine years. Todd testified that she had taken
basic, intermediate, and advanced fingerprint comparison classes; latent print
processing classes; and a palm print comparison class. Since 2006, Todd had been
a member of the International Association for Identification and had taught courses
about latent print processing. Todd testified that she did a “fingerprint comparison
verification” for the fingerprints that Cannady had already compared and for the
palm prints that Harris had already compared, and she explained that this was a
normal procedure. Todd’s comparison of the palm prints and fingerprints yielded
the same result as the Harris and Cannady comparisons. Therefore, any error in
allowing Cannady and Harris to testify about the results of their fingerprint
comparison would have been harmless in light of Todd’s testimony as to the same
result.     See Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004).
Appellant’s fourth and fifth issues are overruled.
          In his sixth issue, Appellant challenges the trial court’s decision to admit
photographs over his objections that the photographs were cumulative,
inflammatory, or gruesome. Appellant challenges the admissibility of nineteen
crime scene photographs (State’s Exhibit Nos. 27, 29, 30, 40, 43, 46, 47, 50, 53,
54, 60, 62, 63, 65, 69, 70, 72, 75, and 102) and seventeen autopsy photographs

                                            12
(State’s Exhibit Nos. 310, 311, 317, 321, 322, 323, 343, 375, 376, 377, 378, 379,
380, 381, 382, 383, and 384). “A judge’s ruling on a Rule 403 objection will be
reversed only for a ‘clear abuse of discretion.’” Matamoros v. State, 901 S.W.2d
470, 476 (Tex. Crim. App. 1995) (quoting Montgomery v. State, 810 S.W.2d 372,
392 (Tex. Crim. App. 1991)). “So long as the trial court’s ruling is within the zone
of reasonable disagreement, it will be upheld.” Id.
      Under Rule 403, all relevant evidence is admissible unless “its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay or needless
presentation of cumulative evidence.” TEX. R. EVID. 403. To rule on a Rule 403
objection, the trial court must balance the probative value of the offered evidence
with the danger of unfair prejudice.       Id.; Montgomery, 810 S.W.2d at 388.
Similarly, our review on appeal is limited to assessing whether the probative value
of the photographs is greatly outweighed by their prejudicial effect. Long v. State,
823 S.W.2d 259, 271 (Tex. Crim. App. 1991).
      We first note that we need not address all of Appellant’s contentions.
Because the trial court sustained Appellant’s objection to Exhibit No. 54, there is
no adverse ruling related to Exhibit No. 54 for us to review.          See TEX. R.
APP. P. 33.1(a)(1); Mathis v. State, 67 S.W.3d 918, 927 (Tex. Crim. App. 2002).
When the State offered Exhibit Nos. 72, 311, and 378 at trial, Appellant did not
object and, thus, did not preserve his complaint regarding the admissibility of these
exhibits for our review. See TEX. R. APP. P. 33.1(a)(1); Clark v. State, 365 S.W.3d
333, 339 (Tex. Crim. App. 2012). Although Appellant notes in his brief that he
objected when the State offered Exhibit Nos. 69, 102, 310, and 317, he does not
present us with an argument in which he attacks the admissibility of the exhibits.
Further, Appellant presents us with no argument as to why the trial court erred
when it overruled the objections to those exhibits. Thus, Appellant has waived his

                                         13
complaints on appeal as to those exhibits. See TEX. R. APP. P. 38.1(i); Smith v.
State, 907 S.W.2d 522, 532 (Tex. Crim. App. 1995).
       Appellant also complains that Exhibit Nos. 27, 29, 60, 62, and 75, showing
one of the victims partially naked, were inadmissible because of the danger that
they would confuse, distract, and mislead “the jury as to which offense [Appellant]
was actually being tried.” However, Appellant did not make this complaint at trial
and, thus, has not preserved admissibility on this ground for our review. See
TEX. R. APP. P. 33.1(a); Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App.
1996) (explaining grounds raised on appeal must comport with the objection made
in the trial court).
       We now address Appellant’s complaint about the cumulative nature of
fifteen crime scene photographs that show “the dead bodies of the Glovers taken
from various angles.” Of these, seven are photographs of Peggy’s body; seven are
photographs of Richard’s body; and one, State’s Exhibit No. 40, shows both
bodies. As this is the only complained-of exhibit that shows the location of both
bodies in relation to each other, we cannot conclude that the cumulative nature of
Exhibit No. 40 outweighed its probative value.        We will next consider the
admissibility of State’s Exhibit Nos. 27, 29, 60, 62, 63, 70, and 75, which are
photographs of Peggy’s body at the crime scene. We will then consider State’s
Exhibit Nos. 30, 43, 46, 47, 50, 53, and 65, which are photographs of Richard’s
body at the crime scene.
       Photographs are generally admissible when oral testimony about matters
depicted in the photographs is also admissible. Hicks v. State, 860 S.W.2d 419,
426 (Tex. Crim. App. 1993). “When there are two or more pictures that depict the
same thing but from different perspectives, the jury can gain information it might
not otherwise have when viewing other pictures from other perspectives.”
Bacey v. State, 990 S.W.2d 319, 326 (Tex. App.—Texarkana 1999, pet. ref’d).

                                        14
“Close-up photographs and photographs taken from different vantage points add to
the jury’s understanding of the condition of the crime scene.” Matamoros, 901
S.W.2d at 476.
      State’s Exhibit Nos. 27 and 60 both show Peggy’s body and blood smeared
across the tile floor from where she was dragged. Only Exhibit No. 27 shows signs
of a struggle where the smear begins, and the viewpoint provides more context to
the layout of the rooms than Exhibit No. 60. Exhibit No. 60, however, shows a
window that is not quite clear from Exhibit No. 27. The window is the only
window in the room that was not covered by plywood from the ongoing
remodeling work, and the lead homicide investigator testified that he believed that
Peggy’s body was dragged from where she died to where she was found so that her
body could not be seen from that window.
      State’s Exhibit No. 29 is a close-up of Peggy lying on her back as she was
discovered, and it is the only complained-of exhibit that shows a close-up of the
large cut across Peggy’s neck that was determined to be fatal. Exhibit Nos. 62 and
63 are of Peggy’s upper body and were taken further away and from different
viewpoints. Exhibit No. 63 was taken from the direction of her head toward her
feet, and Exhibit No. 62 was taken from the direction of her feet looking toward
her head. Exhibit No. 70 was taken from a similar viewpoint as Exhibit No. 63,
but Exhibit No. 70 only shows Peggy’s legs. Peggy’s panties are partially down on
her thighs in several of the photographs. Although Exhibit Nos. 27, 29, 60, 62, 63,
and 70 all show Peggy’s body at the crime scene, they are sufficiently different in
both magnification and angle that we cannot conclude that it was error to admit
them over Appellant’s objection to their cumulative nature.
      Exhibit No. 75 shows Peggy after she had been rolled over, and her buttocks
are exposed. There is a large mark covering a large portion of one of her thighs,
and the photograph also shows the pool of blood in which she had been lying. The

                                        15
trial court overruled Appellant’s objection that this was cumulative and reasoned
that “[i]t shows something located on the left back thigh, which has not been
represented to the record or represented by any other exhibits that have been
offered.” We agree and hold that the trial court did not abuse its discretion when it
admitted this exhibit.
      Exhibit Nos. 30 and 43 are photographs of Richard’s body lying facedown;
they were taken from the left side of his body. Exhibit No. 30 is a close-up that
shows his face and hands, whereas Exhibit No. 43 is further back and shows the
pool of blood surrounding his body. Exhibit No. 65 shows Richard’s body from
the right side, and his body is partially obscured by the dining room chairs. Exhibit
No. 65 also shows that multiple windows were covered by plywood. Exhibit
Nos. 30, 43, and 65 are sufficiently distinct that the trial court’s ruling on their
cumulative effect is not outside the zone of reasonable disagreement.
      Exhibit Nos. 46 and 47 are pictures of the knife in Richard’s back. In
Exhibit No. 46, the camera’s focus is on evidence tag number 19, and the rest of
the picture is dark. Exhibit No. 47 is a slightly different viewpoint, and it clearly
shows Richard’s blood-soaked shirt and the pool of blood surrounding him.
Exhibit No. 50 is a close-up of Richard’s face, and a ruler is used to show the size
of injuries to his face. Exhibit Nos. 53 and 54 are close-up views of Richard’s
body after he was rolled over onto his side. These photographs show the pool of
blood on the ground and his blood-soaked shirt, face, and arm. Appellant objected
that Exhibit Nos. 53, 54, and 55 were cumulative, and the trial court sustained his
objection to Exhibit Nos. 54 and 55 and admitted only Exhibit No. 53. We cannot
conclude that the trial court’s ruling on the cumulative effect of Exhibit Nos. 46,
47, 50, and 53 was outside the zone of reasonable disagreement.
      Appellant also challenges Exhibit Nos. 30, 40, 43, 46, and 47 as cumulative
photographs that “depict [Richard’s] body with a knife protruding from his back.”

                                         16
While Exhibit No. 40 shows a knife protruding out of Richard’s back, that is not
the main focus of this exhibit. We have already concluded that Exhibit No. 40
shows the location of the victims’ bodies in relation to each other and that Exhibit
Nos. 30, 43, 46, and 47 were sufficiently distinct because of the differences in
viewpoint and magnification. Appellant also challenges Exhibit Nos. 27, 29, 60,
62, 75, and 311 on the grounds that they are cumulative pictures of Peggy’s
partially naked body. However, we have already determined that these exhibits are
sufficiently distinct that the trial court’s ruling on their cumulative effect does not
fall outside the zone of reasonable disagreement.
      Appellant also complains that several autopsy photographs “are cumulative
close-up pictures of the knife wounds inflicted upon the Glovers.” A medical
examiner is entitled to use autopsy photographs to explain his findings related to
manner of death, cause of death, time of death, and the number of wounds
sustained by each victim. Long, 823 S.W.2d at 274. Autopsy photographs that
depict the same wounds that are shown in the crime scene photographs are
cumulative and have little probative value. Id.
      Exhibit Nos. 321, 322, and 323 are pictures of Peggy’s wounds. Exhibit
Nos. 375, 376, 377, 379, 380, 381, 382, 383, and 384 are pictures of Richard’s
wounds. And Exhibit No. 343 is a close-up view of the knife. The photographs of
Peggy’s wounds cannot be cumulative of the photographs of Richard’s wounds and
vice versa. Exhibit No. 321 shows her severed trachea and jugular vein. The
medical examiner explained that the trachea is the normal airway to the lungs and
used Exhibit No. 323 to show that blood had aspirated into her airway. The cut
went across the front of her neck, and Exhibit No. 322 shows the dried out
“external mastoidal muscle on the right side” of her neck.           Because Exhibit
Nos. 321, 322, and 323 show different portions of Peggy’s injuries, we cannot
conclude that it was error to admit them over Appellant’s cumulative objection.

                                          17
      As for the photographs of Richard’s wounds, Exhibit No. 343 is a close-up
of a ruler next to the knife that was still in Richard’s back, but it does not show the
rest of his body. Exhibit Nos. 375, 376, and 377 are photographs of defensive
wounds on Richard’s right hand. Exhibit Nos. 375 and 377 show cuts on the
middle and ring fingers, and Exhibit No. 376 shows a side profile of the cut on the
middle finger to show the depth and shape of the cut. Although Exhibit Nos. 375
and 377 show the same wounds, the wounds had been cleaned in Exhibit No. 377
and revealed damaged tendons and other soft tissue. Exhibit Nos. 379 through 384
depict various injuries observed during the internal examination of Richard’s body.
      After comparing the exhibits, we cannot conclude that the trial court abused
its discretion when it admitted Exhibit Nos. 343, 375, 376, 377, 379, 380, 381, 382,
383, and 384 because of the different facts gleaned from each picture regarding the
cause of death, other injuries, and the condition of the bodies. See Etheridge v.
State, 903 S.W.2d 1, 21 (Tex. Crim. App. 1994) (concluding multiple photographs
were not cumulative because each showed something necessary to clearly illustrate
the extent of injuries and general condition of body).
      Next, we address Appellant’s complaint about the “inflammatory” and
“gruesome” nature of numerous crime scene and autopsy photographs. At trial,
Appellant’s only objection to Exhibit Nos. 27, 43, 46, 47, 50, 321, 322, 323, 343,
375, 376, and 377 was that they were cumulative. Appellant’s complaint on appeal
does not comport with his objection at trial and is, therefore, waived. See TEX. R.
APP. P. 33.1(a); Goff, 931 S.W.2d at 551. However, Appellant did preserve his
complaint as to the following exhibits, and we will review the trial court’s ruling
on the admissibility of them: Exhibit Nos. 29, 30, 53, 60, 62, 63, 65, 70, 75, 379,
380, 381, 382, 383, and 384.




                                          18
      When we address a complaint that exhibits are inflammatory and gruesome,
we must determine whether the trial court abused its discretion when it balanced
the following six factors:
      (1) The inherent probative force of the proffered item of evidence
      along with (2) the proponent’s need for that evidence against (3) any
      tendency of the evidence to suggest decision on an improper basis, (4)
      any tendency of the evidence to confuse or distract the jury from the
      main issues, (5) any tendency of the evidence to be given undue
      weight by a jury that has not been equipped to evaluate the probative
      force of the evidence, and (6) the likelihood that presentation of the
      evidence will consume an inordinate amount of time or merely repeat
      evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).
“Evidence might be unfairly prejudicial if, for example, it arouses the jury’s
hostility or sympathy for one side without regard to the logical probative force of
the evidence.” Id. To evaluate the admissibility of photographs that were alleged
to be unfairly prejudicial, we must also consider the number and size of the
photographs, whether the photographs are in color, the detail shown, how
gruesome the photographs are, whether the body is naked, and “whether the body
has been altered since the crime in some way that might enhance the gruesomeness
of the photograph to the appellant’s detriment.” Shuffield v. State, 189 S.W.3d
782, 787 (Tex. Crim. App. 2006).
      “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).            “‘Autopsy photographs are
generally admissible unless they depict mutilation of the victim caused by the
autopsy itself’” because of the concern “that the jury might attribute certain
injuries caused by the autopsy to the appellant.” Salazar v. State, 38 S.W.3d 141,


                                        19
151 (Tex. Crim. App. 2001) (quoting Rojas v. State, 986 S.W.2d 241, 249 (Tex.
Crim. App. 1998)). Often, the photographs can help the jurors to better grasp the
testimony of a medical expert. Ladner v. State, 868 S.W.2d 417, 426 (Tex. App.—
Tyler 1993, pet. ref’d).
      Appellant contends that, because he did not “contest[] the extent of the
Glovers’ injuries nor did he contest the manner by which they were killed” but
rather only disputed that “he was the individual who committed these violent
murders,” the photographs had low probative value and “did not serve to assist the
jury in deciding any contested fact in this case.” However, our consideration of the
State’s need for the evidence focuses on the fact of consequence for which it was
offered, and whether that fact of consequence is related to an issue in dispute is
only one consideration for the State’s need. See Montgomery, 810 S.W.2d at 389–
90.
      The crime scene photographs were admitted through the testimony of the
first officer to arrive on the scene and the lead homicide detective, and the autopsy
photographs were admitted through the medical examiner’s testimony.               As
described above, the crime scene photographs, specifically Exhibit Nos. 29, 30, 53,
60, 63, 65, 70, and 75, documented the crime scene and showed the injuries and
positioning of the Glovers’ bodies.
      The photographs from Peggy’s autopsy show the cause of her death, the
depth and severity of the wound on her throat, and the injury to her airway. The
photographs from Richard’s autopsy reveal defensive wounds, bruising on both
arms, and bruising beneath his scalp that was not detectable except through the
autopsy. Exhibit Nos. 379 and 384 are images of the bruise on an inverted scalp,
and Dr. Marc Andrew Krouse, who performed the autopsy, explained where the
bruise was located in the picture and stated that it would have been “just above the



                                         20
temporal muscle on the right side of the head.” Exhibit No. 384 is a close-up of
the bruise.
      In addition to his defensive wounds, Richard was stabbed four times in the
chest and four times in the back. Two of the chest wounds were fatal. The first
fatal stab wound was six inches deep, went through the space between the second
and third ribs, and perforated both the pulmonary artery and the aorta. The second
fatal stab wound was five and one-half inches deep, went through the cartilage that
attaches the fifth rib to the sternum, and perforated the pulmonary artery. Exhibit
No. 381 is a photograph of the rib cartilage with the stab wound. Exhibit No. 383
shows the injury to the pulmonary artery. Exhibit No. 382 shows the base of the
aorta where there are two deep, penetrating wounds. Exhibit No. 380 is a picture
that shows fluoric hemorrhaging in the chest wall around the two penetrating stab
wounds. There is no question that the photographs are gruesome.
      Under the first Gigliobianco factor, the trial court could have determined
that the photographs had probative value because they accurately depicted the
crime scene and the bodies of the Glovers and would assist the jury to visualize the
crime scene, understand the extent of the injuries, and grasp the reality of the brutal
crime committed. See Paredes v. State, 129 S.W.3d 530, 539–40 (Tex. Crim. App.
2004). Furthermore, the photographs, together with the testimony of the officers
and medical examiner, helped to tell the story of how the Glovers were murdered.
Erazo, 144 S.W.3d at 491–92 (reasoning that photographs are generally admissible
when testimony regarding the same matters is admissible). For example, the crime
scene photographs show that Richard was wearing slacks and a button-down shirt
and that Peggy was wearing a nightgown; this is some evidence of the time of day
that the murders likely occurred. Also, the crime scene photographs show that
Peggy’s body had been dragged from an area where a struggle had occurred, and
where she had died, to an area where the windows were covered. Detectives

                                          21
opined that this was done to prevent someone from seeing her body through the
uncovered window and to prolong discovery.              The probative value of the
photographs weighs in favor of admissibility.
      The second factor requires us to consider the State’s need for the evidence.
To assess this factor, a trial court must answer the following questions: “Does the
proponent have other available evidence to establish the fact of consequence that
the [photographs are] relevant to show? If so, how strong is that other evidence?
And is the fact of consequence related to an issue that is in dispute?” Montgomery,
810 S.W.2d at 390. Appellant is correct that the manner and cause of death were
not disputed, but this is only one of three inquiries to assess the State’s need for the
evidence.
      The strength of the other evidence available to establish what occurred in the
Glovers’ home was not as strong without the photographs. And the only other
evidence of what happened in the Glovers’ home, as we have summarized, came
from the testimony of the officers and medical examiner. The pictures of the crime
scene illustrate what the detectives observed in order to reach their conclusions
about the circumstances of the murders, and the photographs aid in an
understanding of that. Further, the autopsy photographs illustrated the medical
examiner’s explanation of the various wounds and injuries. See Harris v. State,
661 S.W.2d 106, 107 (Tex. Crim. App. 1983) (admitting photographs that help
jury understand doctor’s technical language used to describe the victim’s injuries is
not abuse of discretion). How Richard and Peggy Glover died and the manner of
their deaths were facts of consequence. Even though the manner of death was not
at issue as to either of the victims, this factor also weighs in favor of admissibility.
      As to the other factors, Appellant contends that the State used
“approximately 150 [crime scene and autopsy] photographs” to impress the jury in
an irrational and indelible way because “the Photographs were duplicative,

                                           22
cumulative, and inflammatory.” Based on our review of the record, there were
approximately seventy-five autopsy photographs and approximately seventy-five
crime scene photographs admitted at trial, and sixty-two percent of the crime scene
photographs did not show any part of the bodies of either Richard or Peggy Glover.
As we discussed in our analysis of the cumulative nature of the exhibits, there is an
element in each photograph that is not found in the other photographs, and we have
already concluded that the lower court’s ruling on the cumulative nature of the
photographs was not outside the zone of reasonable disagreement.
      Although the photographs are in color and were displayed on a screen for the
jury to see, they are not unduly gruesome. Several photographs reveal that Peggy
was found with her panties down and her genitals exposed, but only one crime
scene photograph actually shows her genitals.         Any prejudice that may have
resulted from the implication of sexual assault was cured when the medical
examiner testified that he found no injuries there. There was no evidence of sexual
assault presented to the jury. The autopsy photographs showed the injuries, some
with dried blood and some after cleaning, but the gruesome nature of the
photographs was a result of the crime and was not caused by the autopsy. The
crime scene photographs are emotionally disturbing, but that is because of the
circumstances of the crime rather than any particular image depicted in the
photographs. We cannot conclude that the complained-of photographs are “so
horrifying or appalling that a juror of normal sensitivity would necessarily
encounter difficulty rationally deciding the critical issues of this case after viewing
them.” Fuller v. State, 829 S.W.2d 191, 206 (Tex. Crim. App. 1992), abrogated
on other grounds by Castillo v. State, 913 S.W.2d 529, 534 (Tex. Crim. App.
1995).
      Because the photographs and the related testimony adequately explained the
State’s theory and increased the jury’s comprehension, we cannot conclude that the

                                          23
trial court’s ruling on the admissibility of the crime scene and autopsy photographs
was outside the zone of reasonable disagreement.          Appellant’s sixth issue is
overruled.
      We vacate Appellant’s capital murder convictions under counts two and
three of the indictment because those convictions violate the Double Jeopardy
Clause. Accordingly, we reverse the judgments of the trial court as to counts two
and three, and we render a judgment of acquittal as to those counts. See Saenz v.
State, 131 S.W.3d 43, 53 (Tex. App.—San Antonio 2003), aff’d, 166 S.W.3d 270
(Tex. Crim. App. 2005). We uphold the capital murder conviction under count
one, and we affirm the judgment of the trial court as to that count.




                                                     JIM R. WRIGHT
                                                     CHIEF JUSTICE

November 20, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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