                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION
                                          No. 04-13-00637-CR

                                           Jeffrey THEISEN,
                                                Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                      From the 399th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2012CR2446
                               Honorable Ray Olivarri, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: October 8, 2014

AFFIRMED

           A jury convicted appellant Jeffrey Theisen of intoxication manslaughter. Based on the

jury’s recommendation, the trial court sentenced Theisen to thirteen years’ confinement. On

appeal, Theisen raises two issues, contending the trial court erred in: (1) denying his motion for

mistrial; and (2) admitting a photograph into evidence. We affirm the trial court’s judgment.

                                              BACKGROUND

           A detailed rendition of the facts is unnecessary to our disposition. Accordingly, we provide

a brief background for context with regard to the issues raised by Theisen.
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       Theisen was attending a three-day heavy metal festival in San Antonio, Texas. Theisen

admittedly became intoxicated at the festival. Despite his intoxication, Theisen got into his vehicle

and drove onto Interstate 37. In his intoxicated state, Theisen crossed into the wrong lane and

struck a vehicle driven by Christina Flores. Ms. Flores died as a result of the incident.

       Theisen was arrested and ultimately pled guilty to intoxication manslaughter. Theisen

opted to have a jury determine his sentence. During the punishment phase — specifically during

the testimony of Priscilla Flores, the victim’s daughter — there was an outburst in the courtroom

from the victim’s fourteen-year-old son, Christian Flores. The trial court called for a recess and

excused the jury from the courtroom. Out of the jury’s presence, Theisen moved for a mistrial

based on the outburst, arguing the outburst would “unfairly . . . impact this jury.” Theisen also

asked that in the event the trial court admonished the jury, that it advise the jurors that the outburst

is not evidence and they should not consider it. The trial court denied the motion for mistrial, but

when the jury returned, the trial court instructed the jury to “disregard the outburst by that 14-year-

old boy and again remind you that you will consider only the evidence as it comes in by the

witnesses and by the exhibits.”

       Later in the punishment phase, the State sought to admit into evidence an autopsy

photograph of the victim. Theisen objected under Rule 403 of the Texas Rules of Evidence. After

hearing arguments, the trial court overruled Theisen’s objection and admitted the photograph into

evidence. After the jury deliberated, it recommended a sentence of thirteen years’ imprisonment,

and the trial court sentenced Theisen accordingly. Thereafter, Theisen perfected this appeal.

                                              ANALYSIS

       As noted above, Theisen raises two issues on appeal. He contends the trial court should

have granted his motion for mistrial and sustained his objection to the admission of the autopsy

photograph.
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                                        Motion for Mistrial

       A trial court’s denial of a motion for mistrial is reviewed under an abuse of discretion

standard, and the ruling must be upheld unless it is outside the zone of reasonable disagreement.

Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010); Gamboa v. State, 296 S.W.3d 574,

580 (Tex. Crim. App. 2009). Because a mistrial is a drastic remedy, it is only required when an

“error is so prejudicial that expenditure of further time and expense would be wasteful and futile.”

Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting Ladd v. State, 3 S.W.3d 547,

567 (Tex. Crim. App. 1999)). Thus, a mistrial “is a remedy appropriate for . . . highly prejudicial

and incurable errors.” Wood, 18 S.W.3d at 648.

       During the punishment phase of the trial, the State called the victim’s daughter, Priscilla

Flores, to testify about how the death of her mother affected the Flores family. During Priscilla’s

testimony, her fourteen-year-old brother, Christian Flores, suddenly shouted out, calling Theisen

a “mother f----r.” Christian continued his outburst, yelling, “You took her away. You took her

away. You took her away. You took her away.” After a short recess and without the jury present,

Theisen moved for a mistrial based on Christian’s outburst. Although the trial court denied the

motion for mistrial, it instructed the jury upon its return to the courtroom that it was to disregard

the outburst and reminded the jury that it was to consider as evidence only information from

witnesses and exhibits. Theisen contends this was insufficient.

       In Coble, the court of criminal appeals held that an outburst from a spectator that interrupts

a trial proceeding will not result in reversible error unless the appellant shows a reasonable

probability that the conduct interfered with the jury’s verdict. 330 S.W.3d at 292; Gamboa, 296

S.W.3d at 580. Moreover, a trial court’s instructions to disregard an outburst are generally

considered sufficient to cure any improper outburst because “it is presumed that the jury will

follow those instructions.” Coble, 330 S.W.3d at 292; see Gamboa, 296 S.W.3d at 580.
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       In an attempt to meet his burden to show the existence of a “reasonable probability” that

the outburst interfered with the jury’s verdict, Theisen relies on Stahl v. State. 749 S.W.2d 826,

832 (Tex. Crim. App. 1988). However, we hold Stahl is distinguishable given that it was decided

on the basis of prosecutorial misconduct, not merely an improper outburst.

       In Stahl, the prosecutor called the victim’s mother as a witness. Id. at 828. Knowing she

was predisposed to emotional outbursts, the prosecutor asked the mother to identify a photograph

of her dead son. Id. The mother burst into tears, exclaiming, “Oh, my god. My baby. My God

. . . May he rest in hell. May he burn in hell. Oh, my baby.” Id. at 828–29. Although the trial

court instructed the jurors to disregard the mother’s statements, the prosecutor “exacerbated” the

impact, repeatedly referring to the incident during the State’s closing argument. Id. at 830. The

court held that this “deliberate” and “persistent” conduct, “in direct contravention of prior rulings

by the judge” established the prosecutor’s attempt to improperly sway the jury. Id. at 830–31. The

appellate court even suggested the prosecutor orchestrated the mother’s outburst. Id. at 827.

       Theisen contends that, like the prosecutor in Stahl, the prosecutor in this case exacerbated

the boy’s outburst during closing arguments by stating, “You’ve heard and seen a lot of big

emotion over these past few days . . . .” We disagree. First, the State agreed that an instruction to

disregard was called for, though there was debate about the form of the instruction. See Coble,

330 S.W.3d at 293. Second, the State did not attempt to justify the outburst. See id. Third, unlike

Stahl, there is no indication in this record that the State orchestrated or even anticipated the

outburst. In fact, it was the State who asked the trial court to admonish those in the gallery

regarding such outbursts. Additionally, the prosecutor in this case did not identify the family

member who had the outburst and did not repeatedly refer to the outburst during closing. See id.

Finally, there were actual witnesses in this case who also displayed “big emotion” during their



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testimony, so it cannot be said with any assurance that the State was referencing Christian’s

outburst in its closing as suggested by Theisen.

        For example, Michelle Reynosa, a witness to the accident, became emotional when she

testified to her account of the collision. Also, the victim’s daughter provided extremely emotional

testimony, describing how her brother and sister would miss so many experiences with their

mother, how her mother would never see her get married, and all the other things the family would

miss. She described her sadness and anger. Thus, to presume the State’s reference to “big

emotion” was solely attributable to Christian’s outburst is inaccurate.

        In addition, the trial court immediately instructed the jury to disregard Christian’s outburst.

The trial court specifically reminded the jury to consider only evidence, i.e., information provided

by actual witnesses or through exhibits. We presume the jury followed the trial court’s instruction.

See id. In addition, it appears the outburst did not influence the jury as the sentence recommended,

i.e., thirteen years, was less than the twenty-year maximum the jury could have recommended.

See TEX. PENAL CODE ANN. §§ 12.33(a), 49.08(b) (West 2011). Accordingly, we hold Theisen

failed to show a reasonable probability that the conduct interfered with the jury’s verdict and

overrule this issue. See Coble, 330 S.W.3d at 292; Gamboa, 296 S.W.3d at 580.

                                        Autopsy Photograph

        In his second issue, Theisen contends the trial court abused its discretion when it admitted

into evidence an autopsy photograph of the victim. He argues the admission of the photograph

violated Rule 403 of the Texas Rules of Evidence because the probative value of the photograph

was outweighed by its prejudicial effect.

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

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

discretion if no reasonable view of the record could support its ruling, i.e., the ruling is outside the
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zone of reasonable disagreement. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012);

McGee v. State, 233 S.W.3d 315, 318 (Tex. Crim. App. 2007); Montgomery v. State, 810 S.W.2d

372, 391 (Tex. Crim. App. 1990) (op. on reh’g). There should be a reluctance on the part of the

appellate court to reverse a trial court’s decision on the admission or exclusion of evidence.

Montgomery, 810 S.W.2d at 378.

       A court may consider many factors in determining whether the probative value of

photographic evidence is outweighed by its prejudicial effect. “These factors include: the number

of exhibits offered, their gruesomeness, their detail, their size, whether they are in color or black-

and-white, whether they are close-up, whether the body depicted is clothed or naked, the

availability of other means of proof, and other circumstances unique to the individual case.”

Williams v. State, 301 S.W.3d 675, 690 (Tex. Crim. App. 2009). “Autopsy photographs are

generally admissible unless they depict mutilation of the victim caused by the autopsy itself.” Id.

       Theisen contends an autopsy photograph is not admissible for the sole purpose of showing

the death of an individual. Erazo v. State, 144 S.W.3d 487, 493 (Tex. Crim. App. 2004). However,

Theisen fails to mention that the Erazo court held the admission of the photograph in question was

error because it was an autopsy photograph of a fetus “whose death the defendant [was not] on

trial [for],” rather than the mother, the actual victim. Id. at 494. The Erazo court, in discussing

cases that permitted the admission of autopsy photographs over a Rule 403 objection, stated: the

“photographs in the cases cited above were helpful to the juries in those cases because they

showed” the victim. Id. “As a result, these photographs added something logical and relevant that

made the photographs more probative than prejudicial.” Id. at 494. Here, the State was permitted

to introduce a photograph of the actual victim, which as noted by the Erazo court is relevant. See

id. Thus, Erazo actually negates Theisen’s contention as the autopsy photograph in this case was

of the victim. See id.
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       In the present case, we hold the trial court did not abuse its discretion in admitting the

autopsy photograph of Christina Flores, the victim. See Gallo, 239 S.W.3d at 762. Considering

the Williams factors, we hold the autopsy photograph was not so prejudicial that it overcame the

probative value. See Williams, 301 S.W.3d at 690; TEX. R. EVID. 403. The photograph at issue

was not gruesome, as no injuries are shown. Additionally, it appears Flores may be naked, but

only her shoulders and face can be seen in the photograph. Finally, the State did not admit any

other autopsy photographs. Thus, the claim that this one photograph had a significant prejudicial

effect outweighing its probative value is not supported by the record. Accordingly, we overrule

Theisen’s second issue.

                                         CONCLUSION

       Based on the foregoing, we overrule Theisen’s issues and affirm the trial court’s judgment.


                                                Marialyn Barnard, Justice

Do No Publish




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