                                   NUMBER 13-08-00284-CR

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


ROMEO FLORES,                                                                                  Appellant,

                                                      v.

THE STATE OF TEXAS,                                                                              Appellee.


                        On appeal from the 156th District Court
                               of Bee County, Texas.


                              MEMORANDUM OPINION
               Before Justices Rodriguez, Benavides, and Wittig1
                    Memorandum Opinion by Justice Wittig

        Romeo Flores, appellant, was convicted by a jury of three felony counts of murder,

attempted murder, and aggravated assault, all including findings of use of a deadly

weapon. He was sentenced to life imprisonment and assessed a $10,000 fine on Count


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         Retired Fourteenth Court of Appeals Justice Don W ittig assigned to this Court by the Chief Justice
of the Suprem e Court of Texas pursuant to the governm ent code. T EX . G O V ’T C OD E A N N . § 74.003 (Vernon
2005).
1, sentenced to confinement for fifteen years in prison and assessed a $10,000 fine for

Count 2, and sentenced to ten years in prison and assessed a $10,000 fine on Count 3.

In two issues, appellant complains of the admission into evidence of a life-sized photo of

the deceased and testimony by the deceased’s daughter in the State’s case-in-chief. We

affirm.

                                     I. PHOTO EVIDENCE

          Appellant first complains that the trial court erred by admitting a life-sized

photograph of the deceased over his objections.

                                   A. Standard to Review

          We review a trial court’s decision regarding the admissibility of evidence under an

abuse of discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App.

2007); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (stating that the

trial court “has the best vantage from which to decide” admissibility questions). Because

trial courts are in the best position to decide questions of admissibility, appellate courts

uphold a trial court's admissibility decision when that decision is within the zone of

reasonable disagreement. Cameron, 241 S. W. 3d at 19. An appellate court may not

reverse a trial court’s decision regarding the admissibility of evidence solely because the

appellate court disagrees with the decision. Id. The admissibility of a photograph is within

the sound discretion of the trial judge. Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim.

App. 2006). Texas Rule of Evidence 401 defines relevant evidence 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 than it would be without the evidence.” TEX .

R. EVID . 401. Rule 403 allows for the exclusion of otherwise relevant evidence when its

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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. This rule favors the admission

of relevant evidence and carries a presumption that relevant evidence will be more

probative than prejudicial. Shuffield, 189 S.W.3d at 786-87. A rule 403 analysis should

include, but is not limited to, the following factors: (1) how probative the evidence is; (2)

the potential of the evidence to impress the jury in some irrational, but nevertheless

indelible way; (3) the time the proponent needs to develop the evidence; and (4) the

proponent's need for the evidence. Id. at 787.

                                     B. Analysis

       Appellant’s trial counsel objected to the photo, State’s Exhibit 33, on the basis of

rules 401, 402, and 403. See TEX . R. EVID . 401, 402. 403. He now argues that the life-

sized photograph failed to address any fact of consequence, was void of probative value,

was calculated to appeal to the emotions of the jurors, inflame the jurors, and was

extremely prejudicial. The State counters that the photo showed the deceased’s physical

condition prior to his assault. We agree. The photo had relevance and probative value for

the jury to contrast the victim’s appearance before the gunshot wounds to his body and the

lacerations of his nose and lips resulting from the assault. The photo demonstrated the

victim’s health and physical characteristics. Contrasting photos were admitted showing the

victim after the murder. The photo of the victim while alive furnished a basis of contrast

and comparison with other photos showing the wounds inflicted by the assault. The fact

that several witnesses identified the deceased does not necessarily reduce the probative

value of the photo. We fail to see how a normal photo of the victim potentially impressed

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the jury in some irrational way. Clearly, only seconds were used to develop the evidence,

and the proponent’s need for the evidence was demonstrated graphically because it aided

the depiction of the “who, what, and how” of the crime.

       In the context of the trial court’s admission of a photograph, we also consider: the

number of photographs, the size of the photograph, whether it is in color or black and

white, the detail shown in the photograph, whether the photograph is gruesome, whether

the body is naked or clothed, 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, 189 S.W.3d at 787. Appellant only addresses one photo, therefore,

numerosity is not pertinent. No other live-sized photos were introduced. While the size of

the photo is large, that factor standing alone is not overly prejudicial. The photo is in color,

the details are unremarkable, the photo is not the least gruesome, the victim is clothed,

and the photo is unaltered. See id.

       A photograph is generally admissible if verbal testimony about the matters depicted

in the photograph is also admissible. Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim.

App. 2004). The trial court did not abuse its discretion in admitting this photo because the

danger of unfair prejudice did not substantially outweigh the probative value of the

photographs. Shuffield, 189 S.W.3d at 786-87. Appellant’s first issue is overruled.

                                    II. DAUGHTER ’S TESTIMONY

       After Ashley Cano identified State’s exhibit 33, she was briefly asked about her

relationship with her father, the deceased victim. In answers to two questions, she testified

that they were close and that the deceased was developing a close relationship with her

son. Counsel for the defense asked to approach the bench and stated that he objected

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to the line of questioning. The prosecutor interrupted the objection and indicated he was

setting up the relevancy of Cano’s testimony. No motion to disregard the testimony was

made, no further objection made, and the witness then explained some of her father’s last

actions leading up to the murder. The trial court did not rule on appellant’s objection.

       As stated previously, we review a trial court’s decision regarding the admissibility of

evidence under an abuse of discretion standard. Cameron 241 S.W.3d at 19. Here, it is

questionable whether defense counsel preserved error, if any. See Lane v. State, 151 S.

W. 3rd 188, 193 (Tex. Crim. App. 2004). Appellant argues that victim impact statements

are not admissible in the guilt-innocence phase of a trial, citing Love v. State, 199 S.W.3d

447, 457 (Tex. App.–Houston [1st Dist.] 2006, pet. ref’d.).      We agree.     Victim impact

testimony is irrelevant at the guilt-innocence phase of a trial because it does not tend to

make more or less probable the existence of any fact of consequence with respect to guilt

or innocence. Id.      Appellant also argues that good-character evidence is likewise

inadmissable, citing Fuentes v. State, 991 S.W.2d 267, 280 n.6 (Tex. Crim. App. 1999) (“It

is never competent for the State to prove the victim's good or peaceable character in the

first instance; such evidence becomes admissible only in rebuttal when the opposite has

properly admitted on behalf of the defense, or when the defendant seeks to justify the

homicide on the ground of threats made by the deceased.”) (citing Hatley v. State, 533

S.W.2d 27 (Tex. Crim. App. 1976)). Again, we agree to the stated principles.

       After the State established the relationship of the witness to her deceased father in

answer to two questions, she went on to testify that she had made arrangements to loan

her father her vehicle. The deceased had requested to borrow her vehicle, which had a

a trailer hitch, to help pick up and move a friend’s belongings. The deceased then picked
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up his daughter’s vehicle the next morning about 9 or 9:30 a.m., about one hour before he

was shot.

       As noted above, relevant evidence is “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 that it would be without the evidence.” TEX . R. EVID . 401. “All

relevant evidence is admissible” except as provided by law. See TEX . R. EVID . 402. The

gist of the witness’s testimony set up the circumstances immediately leading up to the

murder, and was relevant to show the probative circumstances of the crime. Arguably, the

two questions regarding the relationship between the deceased and the witness were

necessary to establish the connection between them, as well as the deceased’s actions

immediately prior to his death. See TEX . R. EVID . 401.

       Even if we assume some preserved error in the admission of the relationship

testimony, the error is not of constitutional dimension. See Taylor v. State, 268 S.W.3d

571, 592 (Tex. Crim. App. 2008). The appropriate harm analysis is therefore the one set

out in rule 44.2(b) of the Texas Rules of Appellate Procedure, which dictates that a

non-constitutional error “that does not affect substantial rights must be disregarded.” Id.

The court of criminal appeals has construed this to mean that an error is reversible only

when it has a substantial and injurious effect or influence in determining the jury’s verdict.

Id. We should not overturn the conviction if we have fair assurance from an examination

of the record as a whole that the error did not influence the jury, or had but slight effect.

Id.   Here, we believe the error, if any, allowing the two brief questions about the

relationship had but slight effect. The testimony was extremely brief and was, in effect, a

short interjection by one of fourteen witnesses. We hold that the testimony had slight, if

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any, effect upon the jury, and was therefore harmless. See TEX . R. APP. P. 44.2(b)

                                  III. CONCLUSION

      The judgment and sentence of the trial court is affirmed.



                                                                   DON WITTIG,
                                                                   Justice

Do not publish. See TEX . R. APP. P. 47.2(b).

Delivered and filed the
4th day of February, 2010.




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