                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00095-CR

DOUGLAS LYNN KIRK                                                   APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE


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        FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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                                  OPINION
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                                I. Introduction

      In three issues, Appellant Douglas Lynn Kirk appeals his murder

conviction. We affirm.

                   II. Factual and Procedural Background

      On the evening of April 24, 2010, Orlando Benavides helped Kirk move

from 1700 Clover Lane to 2820 Raton Drive, loaning both his truck and physical

labor. Around 10:00 p.m., Kirk and Benavides made their last trip of the night to

the Clover Lane house. When Kirk and Benavides arrived at the Raton Drive
house, Alphonso Beza, who lived next door, approached them, introduced

himself, and volunteered to help unload the truck. Kirk accepted Beza‘s offer,

and Beza invited Pedro Diaz and another man to help unload the truck.

      Around 1:00 a.m., Kirk announced that it was time for everyone to leave,

said good night to Beza and Diaz, and walked Benavides to his truck. What

occurred after Benavides left is disputed. Kirk claimed that he thought Beza and

Diaz were trying to steal from him and that they threatened him. After firing four

warning shots into the ceiling of his house, he kneeled in the corner of a bedroom

and fired down the hallway, killing both men.

      Kirk was charged with murdering Beza and Diaz by shooting them with a

firearm.1   The State presented evidence to counter Kirk‘s self-defense and

defense-of-property theories, and after deadlocking on counts one and two, the

jury found Kirk guilty of count three—causing Diaz‘s death by shooting him with a

firearm—and assessed his punishment at forty-seven years‘ confinement and a

$1,000 fine. This appeal followed.




      1
        Specifically, count one alleged that Kirk had committed capital murder by
intentionally causing Beza‘s and Diaz‘s deaths by shooting them with a firearm
during the same criminal transaction. Counts two and three addressed each
individual shooting as murder.

                                        2
                                  III. Sufficiency

      In his first issue, Kirk argues that the evidence is insufficient to sustain the

verdict because the State failed to disprove that he acted in self-defense and in

defense of property.

A. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex.

Crim. App. 2012). This standard gives full play to the responsibility of the trier of

fact to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App.

2011).

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise, 364

S.W.3d at 903. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

                                          3
light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011). We must presume that the factfinder resolved any conflicting

inferences in favor of the verdict and defer to that resolution. Jackson, 443 U.S.

at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at 903.

      We must consider all the evidence admitted at trial, even improperly

admitted evidence, when performing a sufficiency review. Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007); Moff v. State, 131 S.W.3d 485, 489–90

(Tex. Crim. App. 2004).

      After the defendant has introduced some evidence supporting a defense

under section 2.03 of the penal code, the State bears the burden of persuasion to

disprove it.   Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003)

(explaining that a conviction produces an implicit finding against the defensive

theory). The burden of persuasion does not require the production of evidence;

rather, it requires the State to prove its case beyond a reasonable doubt. Id. To

determine sufficiency of the evidence to disprove a self-defense claim, we ask

whether after viewing all the evidence in the light most favorable to the

prosecution, any rational trier of fact would have found the essential elements of

the offense beyond a reasonable doubt and also would have found against

appellant on the defensive issue beyond a reasonable doubt. Saxton v. State,

804 S.W.2d 910, 914 (Tex. Crim. App. 1991); see also Smith v. State, 355

S.W.3d 138, 144–47 (Tex. App.—Houston [1st Dist.] 2011, pet. ref‘d) (applying



                                        4
Saxton and Zuliani to the jury‘s rejection of the defendant‘s self-defense and

defense-of-third-person theories).

      Penal code sections 9.31 and 9.32 provide in relevant part that a person is

justified in using deadly force against another ―when and to the degree the actor

reasonably believes the deadly force is immediately necessary . . . to protect the

actor against the other‘s use or attempted use of unlawful deadly force.‖ Tex.

Penal Code Ann. §§ 9.31(a), 9.32(a)(1)–(2)(A) (West 2011). Additionally, penal

code section 9.42 provides that a person is justified in using deadly force against

another to protect land or tangible, movable property:

      (1)   if he would be justified in using force against the other under
      Section 9.41[2]; and

      (2)    when and to the degree he reasonably believes the deadly
      force is immediately necessary:

            (A) to prevent the other‘s imminent commission of arson,
            burglary, robbery, aggravated robbery, theft during the nighttime,
            or criminal mischief during the nighttime; or

            (B) to prevent the other who is fleeing immediately after
            committing burglary, robbery, aggravated robbery, or theft during
            the nighttime from escaping with the property; and

      (3)      he reasonably believes that:


      2
         A person in lawful possession of land or tangible, movable property is
justified in using force against another when and to the degree the actor
reasonably believes the force is immediately necessary to prevent or terminate
the other‘s trespass on the land or unlawful interference with the property. Id.
§ 9.41(a) (West 2011).



                                          5
          (A) the land or property cannot be protected or recovered by any
          other means; or

          (B) the use of force other than deadly force to protect or recover
          the land or property would expose the actor or another to a
          substantial risk of death or serious bodily injury.

Id. § 9.42.

B. Evidence

      Kirk contends that he ―had a legitimate fear for his life‖ and that he

―reasonably believed that Beza and Diaz were going to hurt him and rob him of

his property.‖ In support of his contention, Kirk points to his own testimony and

the version of events he gave to the jury describing what happened that night.

      1. The State’s Evidence

      Isabel Diaz testified that Beza, her fiancée, and Diaz, her brother, had

been drinking beer and playing with her kids and nephew in front of her house on

the evening of April 24, 2010. She testified that Beza and Diaz went next door to

Kirk‘s house around 11:00 p.m. to help Kirk move in and that Beza had appeared

happy and indicated that there was free beer. When Isabel awoke the following

morning to find that Beza and Diaz had not returned home, she became

concerned, walked outside, and saw Kirk and another man walking towards

Kirk‘s house. She asked Kirk if he knew where Beza and Diaz were. Kirk told

her that he did not know where they were, so she went back inside her house

and called the police.




                                        6
      When first responders arrived and found a semiautomatic rifle in the

bushes underneath a broken window at Kirk‘s residence, they searched the

house and found Beza‘s and Diaz‘s bodies in the hallway. A detailed search of

the bedrooms and closets revealed boxes of ammunition and numerous loaded

weapons, including rifles, shotguns, pistols, and hunting bows. Ballistics tests

later confirmed that the semiautomatic rifle found in the bushes outside of Kirk‘s

house fired the rounds that killed Beza and Diaz. The police also found empty

beer cans and bottles of liquor scattered around the kitchen and on the living

room floor.

      The police also searched the Clover Lane house and discovered a variety

of unusual objects including, among other things, a plastic manikin torso and

head suspended by a noose around its neck, several pieces of animal skulls,

jawbones, antlers, and a faux human skeleton with a chain locked to its ankle

and a vice grip next to its knee. Photographs of these items were admitted and

published to the jury over Kirk‘s objection.

       Kirk‘s friend, Benavides, testified that he helped Kirk move from the Clover

Lane house to the Raton Drive house on the night of April 24. He testified that

he had taken a final load of items back to the Raton house around 10:30 p.m.

after stopping at a gas station to pick up two eighteen-packs of beer. Upon

arriving at the Raton Drive house, Benavides spoke with Beza, who identified

himself as the next door neighbor and offered to help them unload Kirk‘s

belongings. Benavides testified that after Kirk had told Beza he could help them

                                          7
unpack, Beza called Diaz and his nephew over to help as well.             Benavides

further testified that once the unloading was finished, the group sat on the front

porch and began drinking beer.        He stated that everyone was friendly and

laughing and that they eventually moved inside and continued drinking.

      Benavides testified that he lit a joint and offered to share it with the rest of

the group, but they all declined. Diaz told Benavides that he could not smoke pot

because he was on parole. Benavides testified that he left the house around

1:00 a.m. and that he thought Kirk had walked with him outside to his truck, but

he could not remember for sure. He stated that the mood inside the house was

light and that nobody was arguing or upset when he decided to leave. Benavides

further testified that around noon the next day, Kirk called him and asked what

had happened the night before.

      Dennis Joiner, who lived across the street from the Raton Drive house,

testified that he had seen a white man and a Hispanic man laughing and

conversing in front of Kirk‘s house when he came home from work on April 25 at

1:00 a.m. As Joiner exited his car and walked towards his house, he watched

the men move back into Kirk‘s home and claimed that the two seemed cordial.

He said that at one point, the white man stood in the doorway and seemed to

summon the Hispanic man into the house. Joiner said the Hispanic man was

smiling, walked into the house, and stood in the doorway conversing with

someone inside. Joiner could not hear the conversation but said that it did not

appear that the men were arguing. After the Hispanic man closed the door,

                                          8
Joiner went into his house.      Joiner said that he heard four popping sounds

around 1:35 a.m. or 1:45 a.m. and that he thought it was his sister-in-law‘s dog

that lives in his house. He said that the four sounds could have occurred later.

      Kirk‘s friend, Jana Thompson, who lived next door to the Raton Drive

house, testified that she had helped Kirk place newspaper on the Raton Drive

house‘s backdoor windows between 7:30 and 9:30 p.m. on April 24 before she

went home to sleep. She further testified that Kirk had appeared at her door

around 5:00 the next morning, said he was scared, and appeared to be in shock.

She stated that she had told Kirk that everything was going to be fine and that he

kept repeating that he was scared before he turned around and walked away.

      Kirk‘s friend Cody White, who lived next door to the Clover Lane house,

testified that Kirk came to his house on April 25 and asked for a ride to the Raton

house. White said that Kirk was disheveled and was acting ―crazy‖ and that Kirk

told him that he had walked the four miles from the Raton Drive house to the

Clover Lane house the night before. When White asked why he had walked the

long distance, Kirk said that he was being chased by the police, criminals,

ghosts, or demons. White drove Kirk to the Raton Drive house, and when they

saw Beza‘s and Diaz‘s bodies inside, Kirk said, ―I can‘t believe I did it.‖

      White testified that he had immediately left the Raton Drive house when he

saw Diaz‘s and Beza‘s bodies and that he had called Kirk at 12:30 p.m.—soon

after he left—to ask him what had happened the night before. Kirk told White

that he did not know what had happened, and when White asked about the

                                          9
bodies on the floor, Kirk told him that he had fired his assault rifle at two people.

White testified that when he told Kirk he was going to call the police, Kirk

responded, ―Don‘t call the police. I will take care of it.‖

         Medical examiner Marc Krouse testified that a toxicology report showed

that Beza and Diaz were highly intoxicated at the time of the shootings. Krouse

stated that Diaz was so intoxicated—close to five times the accepted level for

driving—that he might have considered intoxication the cause of death absent

other evidence and that Diaz‘s extreme intoxication would have impaired his

gross motor functions. The trial court also admitted into evidence photographs

showing a beer can near Beza‘s hand at the crime scene.

         Krouse‘s forensic examination showed that Beza was shot three times in

the back and once in the side of the head behind the ear. Krouse testified that all

of Beza‘s wounds except one to his left arm had a distinct downward trajectory

that meant he was either ―on his way to the floor or on the floor when he was

shot.‖

         2. Kirk’s Evidence

         Kirk testified that Thompson had met him and Benavides at the Raton

Drive house around 7:30 p.m. and had helped him tape newspapers over the

glass of the back door because he had been ―alerted to the fact that the house

had had a number of . . . recent break-ins.‖ After Thompson went home around

9:30 p.m., he and Benavides made a final trip to the Clover Lane house to gather

more of his belongings. When they arrived back at the Raton house around

                                          10
11:00 p.m., Beza was next door and asked if they needed help unloading. Kirk

testified that Beza and Diaz helped them move his box spring and mattress

inside the house and that afterwards the group began drinking. Kirk stated that

he had noticed what appeared to be prison tattoos on both Beza and Diaz, and

when he asked Diaz how he got the tattoos, Diaz told him ―something about a

long prison term.‖

         Kirk testified that after walking Benavides to his car at around 1:00 a.m., he

thought that Diaz and Beza were attempting to steal from him because some

items in the house had been moved while Kirk was outside. He said that he had

asked the men to leave and the group went to the front yard. He stated that he

had told the men that he was going to call the police if anything was missing and

that the men threatened him and prevented him from closing the door when he

attempted to return inside. Kirk testified that the two men began ―acting like they

were wanting some kind of altercation‖ and that they had told him, ―We can make

you sorry if you fuck with us.‖ He further testified that he had asked the men to

leave a second time and that they continued to threaten him and refused to

leave.

         Kirk testified that he ran into the front bedroom closet, found his rifle, and

heard the men coming down the hallway toward him.              They began shouting

expletives, and he feared for his life.         Believing that the men had armed

themselves with loaded guns from other rooms in the house, he fired three or

four warning shots into the closet ceiling. After firing the warning shots, Kirk

                                           11
moved across the bedroom and got down on one knee. He saw Beza and Diaz

facing him in the hallway leading to the front bedroom, so he shot at both men.

      Kirk testified that after the shooting, he exited the house by breaking

through the bedroom window, ran next door to Thompson‘s house, and began

knocking on her door and ringing the doorbell. When Thompson refused to let

him in, Kirk made his way on foot back to the Clover Lane house and knocked on

White‘s door.

      Kirk admitted during cross-examination that he had told White not to call

the police and that he would ―take care‖ of the situation. Kirk also testified that

after he had seen the bodies, he had left the house and had called his work

colleague Robert Nickerson.

      Nickerson testified that Kirk had called him several times around 1:00 p.m.

on April 25, 2010, but that he missed the calls and called Kirk back around 2:30

p.m. Nickerson testified that Kirk seemed confused about what had happened

on the night of the shootings. Nickerson said that Kirk had told him he thought

he had shot two people who had helped him move into his new house.

Nickerson also testified that he had asked Kirk whether he had been robbed and

that Kirk had said, ―I do not remember.‖ Kirk testified that after speaking with

Nickerson, he had contacted an attorney and then had turned himself in to the

police.




                                        12
C. Analysis

      Viewing the evidence in the light most favorable to the verdict, we hold that

sufficient evidence supported the jury‘s rejection of Kirk‘s self-defense claim.

See Saxton, 804 S.W.2d at 914. Although Kirk testified that he thought Diaz and

Beza were threatening him and stealing from him, testimony from White and

Nickerson indicated that Kirk was not sure what had happened within twelve

hours of the shooting and even after seeing the bodies. As the sole judge of

credibility, the jury was free to disregard Kirk‘s testimony. See Tex. Code Crim.

Proc. Ann. art. 38.04; Wise, 364 S.W.3d at 903.

      Additionally, Kirk left the scene immediately after the shooting; did not ask

Thompson for help or to call the police when he went to her house several hours

after the alleged time of the shooting;3 and after confirming that he had shot Diaz

and Beza, he told White not to call the police, fled the scene again, and did not

contact the authorities to report the shooting until the evening of April 25, 2010.

Flight is circumstantial evidence from which a jury may infer guilt. See Devoe v.

State, 354 S.W.3d 457, 470 (Tex. Crim. App. 2011).

      Further, the record reflects that both Diaz and Beza were extremely

intoxicated. The jury could have reasonably determined that due to the men‘s


      3
       Thompson testified that Kirk began knocking on her door around 5:00
a.m. on the morning of April 25—approximately three-and-a-half hours after the
time Kirk alleged that the men threatened him and he shot them. Kirk offered no
explanation for this gap.


                                        13
intoxicated state, Kirk‘s belief that they were going to hurt and rob him was

unreasonable. The evidence also indicated that Beza was likely carrying a beer

when he was shot, which weighs against Kirk‘s testimony that the men were

approaching him in a threatening manner.

      Furthermore, the jury was entitled to conclude that Kirk‘s belief that deadly

force was immediately necessary was unreasonable, given that Beza was shot in

the back several times and the forensic evidence showed that the shots were

fired at a downward trajectory. See Saxton, 804 S.W.2d at 913 (holding that

there was sufficient physical evidence to contradict an appellant‘s claim that the

shooting was an accident). Finally, because Diaz had earlier in the evening

expressed his reluctance to engage in criminal activity out of concern for his

parole status, the jury could have reasonably rejected Kirk‘s contention that Diaz

later attempted to assault and rob him. See Sorrells, 343 S.W.3d at 155.

      Based on the foregoing, we hold that a rational jury could have rejected

Kirk‘s self-defense and defense-of-property claims beyond a reasonable doubt.

See Saxton, 804 S.W.2d at 914. Therefore, we overrule Kirk‘s first issue.

                          IV. Admission of Evidence

      In his second issue, Kirk contends that the trial court erred by overruling

his objections to the State‘s Clover Lane house photographs.         At trial, Kirk

objected under rules of evidence 402 and 403, arguing that the photographs




                                        14
were not relevant and that their prejudicial effect substantially outweighed their

probative value.4

A. Standard of Review

      We review the trial court‘s admission of evidence for an abuse of

discretion. Allen v. State, 202 S.W.3d 364, 367 (Tex. App.—Fort Worth 2006,

pet. ref‘d) (op. on reh‘g); see Montgomery v. State, 810 S.W.2d 372, 390–91

(Tex. Crim. App. 1991) (op. on reh‘g). Under this standard, the trial court‘s ruling

will be upheld as long as it falls within the ―zone of reasonable disagreement‖ and

is correct under any theory of law applicable to the case. Alami v. State, 333

S.W.3d 881, 889 (Tex. App.—Fort Worth 2011, no pet.); Karnes v. State, 127

S.W.3d 184, 189 (Tex. App.—Fort Worth 2003, pet. ref‘d), cert. denied, 556 U.S.

1241 (2009).

B. Applicable Law

      Rule 402 states that ―[a]ll relevant evidence is admissible, except as

otherwise provided‖ and that ―[e]vidence which is not relevant is inadmissible.‖

Tex. R. Evid. 402.     Relevant evidence is defined as ―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.‖ Tex. R. Evid. 401.



      4
       On appeal, Kirk also asserts that the evidence is inadmissible under rule
404(b). However, we consider only those grounds that Kirk raised in the trial
court. See Tex. R. App. P. 33.1; Mosley v. State, 983 S.W.2d 249, 265 (Tex.
Crim. App. 1998) (op. on reh‘g), cert. denied, 526 U.S. 1070 (1999).

                                        15
      Under rule 403, evidence, although relevant, may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, misleading the jury, or needless presentation of

cumulative evidence. Tex. R. Evid. 403. Once a rule 403 objection is made, the

trial court must weigh the probative value of the evidence to determine if it is

substantially outweighed by its potential for unfair prejudice. Santellan v. State,

939 S.W.2d 155, 169 (Tex. Crim. App. 1997). A rule 403 balancing test includes

the following factors: (1) the inherent probative force of the proffered item of

evidence along with (2) the proponents need for that evidence against (3) any

tendency of the evidence to suggest a 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). The rules of evidence favor the

admission of relevant evidence and carry a presumption that relevant evidence is

more probative than prejudicial.   Jones v. State, 944 S.W.2d 642, 652 (Tex.

Crim. App. 1996), cert. denied, 522 U.S. 832 (1997).

      Rule 403 requires that a photograph have some probative value and that

its probative value not be substantially outweighed by its inflammatory nature.

See Tex. R. Evid. 403; Williams v. State, 301 S.W.3d 675, 690 (Tex. Crim. App.

                                        16
2009), cert. denied, 130 S. Ct. 3411 (2010). Photographs are neither cumulative

nor lacking in significant probative value simply because they merely corroborate

other kinds of evidence. Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim.

App. 1999), cert. denied, 528 U.S. 1082 (2000). Among the many factors a court

may consider in determining whether the probative value of photographs is

substantially outweighed by the danger of unfair prejudice are 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, the availability of other

means of proof, and other circumstances unique to the individual case. Reese v.

State, 33 S.W.3d 238, 241 (Tex. Crim. App. 2000); Santellan, 939 S.W.2d at 172.

C. The Complained-of Evidence

      Officer Christopher Bain testified that he executed a search warrant at the

Clover Lane house on April 26, 2010. Officer Bain took photographs of a number

of unusual items found inside the residence, including: a plastic manikin torso

and head suspended by a noose around its neck; a drawing on the wall with the

letters ―FTW‖ written above a skull;5 several pieces of animal skulls, jawbones,

and antlers; several replica human skulls holding what appeared to be melted

candle wax; a faux human skeleton with a chain locked to its ankle and a vice

grip located next to its knee; the carcass of a large spider inside of a glass

display case; a faux human skull on a lamp; and what appears to be a statue of

      5
      Officer Bain testified that the letters stood for ―Fuck The World,‖ which he
opined represented one‘s general negative attitude towards life.

                                        17
either a demon or a dragon. The photographs were published to the jury over

Kirk‘s objection.

D. Harmless Error

      Assuming without deciding that the trial court abused its discretion by

admitting this evidence, we will review its actions and disregard the error if it did

not affect appellant‘s substantial rights. Tex. R. App. P. 44.2(b); see Mosley, 983

S.W.2d at 259; see also Solomon v. State, 49 S.W.3d 356, 364 (Tex. Crim. App.

2001) (holding that trial court error regarding admission of evidence is generally

nonconstitutional error); Stewart v. State, 221 S.W.3d 306, 310 (Tex. App.—Fort

Worth 2007, no pet.).

      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) (citing Kotteakos v. United States, 328

U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not

affect a substantial right if we have ―fair assurance that the error did not influence

the jury, or had but a slight effect.‖ Solomon, 49 S.W.3d at 365; Johnson v.

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

      In making this determination, we review the record as a whole, including

any testimony or physical evidence admitted for the jury‘s consideration, the

nature of the evidence supporting the verdict, and the character of the alleged

error and how it might be considered in connection with other evidence in the

case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also

                                         18
consider the jury instructions, the State‘s theory and any defensive theories,

whether the State emphasized the error, closing arguments, and even voir dire, if

applicable. Id. at 355–56.

E. Analysis

      Kirk contends that the admission of the photographs was harmful because

it was ―inflammatory, irrelevant evidence that was designed to degrade and

dehumanize Kirk in the eyes of the jury.‖ Outside the jury‘s presence, the State

argued that the photographs tended to show Kirk‘s state of mind and that the

skeletons, the ―Choking Charlie,‖ and the ―FTW‖ written on the wall indicated an

obsession or tendency towards violence.         During closing argument, the

prosecutor referenced the photographs a single time, stating: ―What happens

when you have an angry and resentful attitude to the world, an attitude that says

‗Fuck the world,‘ and you add . . . alcohol to that mix and then add loaded

firearms?‖ Although the State attempted to portray Kirk as a person obsessed

with violence by showing the photographs of the macabre items located in his

house, the jury also heard Kirk‘s explanation of why he owned these items.

      The prosecutor asked Kirk on cross-examination if the skulls were a

reflection of his mind, and he responded that ―they were little bitty Halloween

regalia‖ that were given to him by a girl he used to live with that had children.

Kirk, who worked as a health care professional, further explained that a Merck

drug representative gave him the skeleton and that the items around the skeleton

included an antique railroad lock, an anvil, and an ―old-timey iron.‖ Kirk also

                                       19
testified that the animal skulls and jawbones were things that he had collected

and were part of the décor of his house.

      As for the dead spider, Kirk stated that it was a tarantula named ―Fuzzy‖

that he had kept for three or four years before it died and that ―[he] always read

stuff about entomology and biology and earth science,‖ so he did not think that

keeping spiders was ―any big deal.‖ And although Officer Bain testified that the

letters ―FTW‖ represented a general negative attitude towards life, Kirk testified

that the letters stood for ―Fort Worth.‖       The jury, as the sole judge of the

witnesses‘ credibility and the evidence, had the means to discern whether the

items in the photographs represented an obsession with violence or merely poor

taste and a penchant for collecting strange things.

      Furthermore, in addition to the complained-of photographs, the State

presented witness testimony and forensic evidence that contradicted Kirk‘s

version of events, which we set out in detail in our analysis of Kirk‘s first issue. In

comparison to the substantial amount of physical and testimonial evidence

presented over the course of the five-day trial, the eight challenged photographs

comprise an insignificant portion of that evidence in the context of the entire case

against Kirk.   Moreover, the record reflects that the State did not repeatedly

reference the photographs or draw the jury‘s attention toward them. Although the

complained-of evidence may have portrayed Kirk in a distasteful light, we cannot

conclude that the photographs likely moved the jury from acquitting Kirk to

convicting him. See Tex. R. App. 44.2(b); Wesbrook v. State, 29 S.W.3d 103,

                                          20
119 (Tex. Crim. App. 2000) (stating that in determining harm, we may ask

whether there is a reasonable possibility that the error ―moved the jury from a

state of nonpersuasion to one of persuasion as to the issue in question‖), cert.

denied, 532 U.S. 944 (2001).

      Accordingly, we hold that even if the trial court erred by admitting the

photographs, the alleged error did not have a substantial and injurious effect or

influence in determining the jury‘s verdict. See Tex. R. App. 44.2(b); King, 953

S.W.2d at 271. Therefore, we overrule Kirk‘s second point.

                       V. Supplemental Jury Instruction

      In his third issue, Kirk argues that the trial court erred by giving the jury a

supplemental instruction in violation of code of criminal procedure article 36.16.

A. Standard of Review

      ―[A]ll alleged jury-charge error must be considered on appellate review

regardless of preservation in the trial court.‖ Kirsch v. State, 357 S.W.3d 645,

649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine

whether error occurred; if error did not occur, our analysis ends. Id.

B. Analysis

      Here, after four days of deliberation, the jury sent a note to the trial court

indicating that it had deadlocked on count one. After the trial court asked the jury

to continue their deliberating, the jury sent another note five hours later,

indicating that it was still deadlocked on count one. The trial court then submitted



                                        21
a modified Allen charge6 that asked the jury to continue its deliberations and

warned that if the jurors could not reach an agreement as to count one, ―it [would]

be necessary for the court to declare a mistrial on Count One.‖ In the afternoon

of the next day, the jury told the trial court that it was deadlocked and that it

understood the implications of that deadlock leading to a mistrial.

      After extensive discussion with the prosecutor and defense counsel, the

trial court presented the following supplemental instruction to the jury:

             If the jury finds itself unable to unanimously agree on a verdict
      with respect to Count One of the indictment, you will next consider
      whether or not the Defendant is guilty of the offenses of murder as
      charged in Counts Two and Three of the indictment.

             If you believe from the evidence beyond a reasonable doubt
      that the defendant is guilty of either capital murder as charged in
      Count One of the indictment or murder as charged in Counts Two or
      Three of the indictment, but you have a reasonable doubt as to
      which of said offenses he is guilty, then you must resolve that doubt
      in the defendant‘s favor and find him guilty of the lesser offense of
      murder.

             If you have a reasonable doubt as to whether the Defendant is
      guilty of any offense defined in the charge you will acquit the
      defendant and say by your verdict ―Not Guilty.‖

In support of issuing the supplemental instruction, the trial court cited the court of

criminal appeals‘s decision in Barrios v. State, in which the court held that the

jury does not have to unanimously agree that a defendant is not guilty of the




      6
       See Allen v. United States, 164 U.S. 492, 501–02, 17 S. Ct. 154, 157
(1896).

                                         22
greater offense before considering a lesser-included offense, see 283 S.W.3d

348, 353 (Tex. Crim. App. 2009), and the trial court further explained that

      for all the reasons set out in [Barrios] the Court would propose that
      language because we have told them—we told the jury what they
      are to do in the event they find guilty on count one. We‘ve also told
      the jury what to do in case they were to find not guilty on count one,
      but what we have not done is to instruct them on what to do if they
      are not able to reach a unanimous verdict on count one. So this
      language informs them of exactly how to proceed in the situation
      they are now apparently in.

Kirk objected that the additional instruction was untimely and that the State had

waived any opportunity to supplement the charge. See Tex. Code Crim. Proc.

Ann. art. 36.16 (West 2006) (listing circumstances under which charge can be

supplemented after deliberations have begun).

      Kirk contends that it was error to provide this supplemental instruction

because deliberations had already begun and the prerequisites of article 36.16

had not been met. Code of criminal procedure article 36.16 states that ―[a]fter

the argument begins no further charge shall be given to the jury unless required

by the improper argument of counsel or the request of the jury, or unless the

judge shall, in his discretion, permit the introduction of other testimony.‖    Id.

Article 36.16 governs supplemental jury charges, and it does not, in all instances,

prevent the trial court from submitting a supplemental charge after deliberations

have begun. See Smith v. State, 898 S.W.2d 838, 854–55 (Tex. Crim. App.),

cert. denied, 516 U.S. 843 (1995); Roberson v. State, 113 S.W.3d 381, 384 (Tex.

App.—Fort Worth 2003, pet. ref‘d). Additionally, the court of criminal appeals has


                                        23
consistently allowed a trial court to correct its charge if it is convinced that an

erroneous charge has been given.           See Smith, 898 S.W.2d at 854–55;

Roberson, 113 S.W.3d, at 384.

      Here, after receiving three notes indicating that the jury was deadlocked on

count one, the trial court became convinced that it had given an erroneous

charge that failed to delineate the proper procedure if the jury became

deadlocked on the greater offense charged in count one. Accordingly, we hold

that the trial court did not violate article 36.16 when it issued the supplemental

instruction and directed the jury to consider the lesser-included offenses in

accordance with Barrios. See Tex. Code Crim. Proc. Ann. art. 36.16; Barrios,

283 S.W.3d at 353; see also Roberson, 113 S.W.3d at 385 (holding that

supplemental charge did not violate article 36.16 when trial court became

convinced that it had given erroneous charge); Dusek v. State, 978 S.W.2d 129,

136–37 (Tex. App.—Austin 1998, pet. ref‘d) (holding supplemental charge

correcting erroneous instruction was not error when it was submitted in response

to a jury note reflecting confusion). Therefore, we overrule Kirk‘s third issue.




                                         24
                                 VI. Conclusion

      Having overruled all of Kirk‘s issues, we affirm the trial court‘s judgment.



                                                   /s/ Bob McCoy

                                                    BOB MCCOY
                                                    JUSTICE


PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DAUPHINOT, J., filed a dissenting opinion.

PUBLISH

DELIVERED: January 23, 2014




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