Opinion filed January 6, 2011




                                           In The


   Eleventh Court of Appeals
                                         __________

                                   No. 11-09-00303-CR
                                       __________

                      JESSIE LEONARD MCCORD, Appellant

                                               V.

                                STATE OF TEXAS, Appellee


                           On Appeal from the 35th District Court

                                    Brown County, Texas

                                Trial Court Cause No. CR19860


                           MEMORANDUM OPINION

       The jury convicted Jessie Leonard McCord, upon his plea of guilty, of murder. The jury
found that appellant did not act under the immediate influence of sudden passion and assessed
his punishment at confinement for life and a $10,000 fine. We affirm.
       In his sole issue on appeal, appellant argues that the trial court abused its discretion by
admitting postmortem pictures of the victim. Specifically, appellant contends that prejudicial
value of State’s Exhibit Nos. 6 and 7 – pictures of the victim’s body when she was discovered in
the landfill – out weighted any probative value under TEX. R. EVID. 403.
       Appellant testified that he and the victim had been married and divorced. After the
divorce, they lived together off and on. Appellant testified that the victim was laughing when
she told him that she had been sleeping with another man.              There was a knife on the
entertainment center, and appellant thought the victim was going to grab it. He grabbed the knife
first and stabbed her two or three times before he realized what he had done. He wrapped her
body in a blanket, drove to the elementary school, and put her body in the dumpster.
       Brown County Sheriff’s Department Investigator Scott Bird testified that the victim’s
body was discovered in the landfill. The body was at the bottom of the pit in front of a
bulldozer. It appeared that the bulldozer had run over the body. The legs were tangled with each
other, the entrails were outside of the body, and the face was “ripped off the skull.”
       The autopsy revealed that the cause of death was a stab wound above the victim’s right
collarbone. State’s Exhibit Nos. 6 and 7 depicted the fatal stab wound to the victim’s right
collarbone as her body appeared in the landfill.
       The trial court found that the probative value out weighed the prejudicial value and
admitted State’s Exhibit Nos. 6 and 7. The Court of Criminal Appeals recently addressed the
appellate review of the admission of graphic photographs pursuant to Rule 403 in Wilkins v.
State, No. AP-75878, 2010 WL 4117677 (Tex. Crim. App. Oct. 20, 2010). Citing Erazo v. State,
144 S.W.3d 487, 489 (Tex. Crim. App. 2004), and Montgomery v. State, 810 S.W2d 372, 391
(Tex. Crim. App. 1991), the Wilkins court stated:
       A Rule 403 analysis includes, but is not limited to, the following factors: (1) the
       probative value of the evidence; (2) the potential to impress the jury in some
       irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4)
       the proponent’s need for the evidence. In the context of photographs, we also
       consider factors including “the number of photographs, the size, whether they are
       in color or are black and white, whether they are gruesome, whether any bodies
       are clothed or naked, and whether the body has been altered by autopsy.” The
       trial court's decision to admit or exclude such evidence is reviewed under an
       abuse of discretion standard (footnotes omitted).

Wilkins, 2010 WL 4117677, at *4.
       In conducting its balancing analysis under Rule 403 and Montgomery, the trial court
determined that, while both exhibits were gruesome, each had probative value in depicting the
fatal stab wound. The trial court redacted the upper portion of State’s Exhibit No. 7 admitting




                                                   2
only the lower portion. The record reflects that the trial court did not abuse its discretion. The
sole issue is overruled.
       The judgment of the trial court is affirmed.




                                                            JIM R. WRIGHT
                                                            CHIEF JUSTICE


January 6, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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