                                        In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-15-00340-CR
                             ____________________

                       TRACY LEE THORN, Appellant

                                         V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                On Appeal from the 75th District Court
                        Liberty County, Texas
                      Trial Cause No. CR31220
__________________________________________________________________

                          MEMORANDUM OPINION

      Tracy Lee Thorn pleaded guilty to aggravated assault with a deadly weapon

and, per an instructed verdict, a jury found Thorn guilty and assessed a sentence of

twenty years in prison. In one appellate issue, Thorn challenges the trial court’s

admission of an autopsy photograph into evidence at the punishment phase of trial.

We affirm the trial court’s judgment.

      The admissibility of photographs is a matter within the trial court’s

discretion. Desormeaux v. State, 362 S.W.3d 233, 237 (Tex. App.—Beaumont

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2012, no pet.). “When verbal testimony as to matters depicted in a photograph is

relevant, then ordinarily the photograph is relevant evidence also.” Id. “Relevant

evidence is presumed to be more probative than unfairly prejudicial.” Id. Even

“relevant evidence may be excluded ‘if 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.’” Id. (citing Tex. R. Evid. 403).

      Thorn testified that, on the night of the offense, he and his brother, Bobby

Smith, had been drinking. According to Thorn, Smith became angry over a prior

assault against him, for which no one had been charged, and he vowed to “get to

the bottom of it right now.” At Smith’s request, Thorn drove Smith to the Country

Live Bar and went inside to ask for “Yo-Yo,” a/k/a Yolanda Santos. After Thorn

returned to his vehicle and told Smith that Santos was not at the bar, Smith told

Thorn that he knew where Santos was and Smith then gave Thorn directions to the

Oaks bar.

      When they arrived at the bar, Smith got out of the vehicle. Thorn testified

that he was intoxicated and fell asleep in his vehicle. Smith subsequently shot

Santos outside the bar. Thorn testified that he did not see Smith with a firearm, but

he was awakened by gun shots. Smith told Thorn that they should leave the bar

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because there had been a shooting, so Thorn drove away. One witness testified

that, before Thorn left the scene, she attempted to retrieve his car keys but Thorn

struck her. Officers subsequently located the vehicle being driven by Thorn and in

which Smith was the passenger. Officers collected two firearms from the vehicle.

Thorn testified that he did not intend to participate in Santos’s death, but he

admitted to being a party to her murder.

      During the punishment phase of the trial, forensic pathologist Dr. Merrill

Hines III testified that he conducted Santos’s autopsy. During Hines’s testimony,

the State sought to introduce several autopsy photographs into evidence. Hines

testified that these photographs were taken during the autopsy and would assist the

jury in understanding Hines’s testimony. Defense counsel objected to admission of

photograph 123 on grounds that its prejudicial effect outweighed any probative

value. Photograph 123 depicted fractures to Santos’s skull. The trial court

overruled the objection. Hines subsequently testified that a “bullet passed through

the skull fracturing the left side of the skull and fragmented continuing through the

left side of the brain and caused bleeding around the brain, caused injuries directly

to the brain tissue, and bruising of the surface of the brain.” He explained

photograph 123 depicted the “left side of the skull once the scalp and some of the

muscles have been reflected to show the fractures of the skull.” He testified that

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this wound was very likely fatal and that Santos died from multiple gunshot

wounds.

      In his sole appellate issue, Thorn argues that photograph 123 had no

“tendency to make the existence of any fact that was of consequence to the

determination of the action at this stage of the case more probable or less probable

than it would be without the evidence; therefore it was not relevant.” Thorn

contends that, because he did not shoot Santos, the photograph fails to show an

injury that he caused. According to Thorn, even if relevant, the photograph was

more prejudicial than probative and its admission caused harmful error.

      The trial court instructed the jury on the law of parties. Thus, Thorn could be

held criminally responsible for Santos’s death, even though he was not the shooter.

See Tex. Penal Code Ann. § 7.02(a) (West 2011); see also Cain v. State, 976

S.W.2d 228, 234 (Tex. App.—San Antonio 1998, no pet.) (A defendant can be

criminally responsible even without evidence that he fired the shots that killed the

victim.). In this case, the jury heard Hines testify that Santos died from multiple

gunshot wounds. Photograph 123 depicted one such wound and allowed the jury to

see the fractures caused by the bullet that entered Santos’s skull. Photograph 123

was helpful to aid the jury in understanding Hine’s verbal testimony regarding the

injuries sustained by Santos. See Harris v. State, 661 S.W.2d 106, 107-08 (Tex.

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Crim. App. 1983) (holding that trial court did not err by admitting autopsy

photograph of child’s deflected scalp to show skull fractures that caused the child’s

death.). The photograph is not so disturbing that a juror of normal sensitivity would

find it difficult to rationally decide the critical issues involved in the case after

viewing the photograph. See Alvarado v. State, 912 S.W.2d 199, 212 (Tex. Crim.

App. 1995). The trial court did not err by admitting the photograph into evidence.

We overrule Thorn’s sole issue and affirm the trial court’s judgment.

      AFFIRMED.

                                             ______________________________
                                                    STEVE McKEITHEN
                                                        Chief Justice

Submitted on April 6, 2016
Opinion Delivered April 20, 2016
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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