                            NUMBER 13-15-00228-CR

                              COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


MANUEL FUENTES JR.,                                                       Appellant,

                                            v.

THE STATE OF TEXAS,                                                       Appellee.


                      On appeal from the 24th District Court
                           of Calhoun County, Texas.


                            MEMORANDUM OPINION

                   Before Justices Garza, Perkes and Longoria
                    Memorandum Opinion by Justice Perkes
          Appellant Manuel Fuentes Jr. appeals his conviction for murder, a first-degree

felony.     See TEX. PENAL CODE ANN. § 19.02(c) (West, Westlaw through 2015 R.S.).

After a jury found appellant guilty, the trial court sentenced him to twenty years’

imprisonment with the Texas Department of Criminal Justice—Institutional Division. By
a single issue, appellant claims the trial court erred by allowing the State to introduce

“gory” photographic exhibits in violation of Texas Rule of Evidence 403. We affirm.

                                   I.     BACKGROUND

       Appellant’s son, Pedro Fuentes, awoke in the middle of the night to see his father

holding a bloody kitchen knife. Appellant told Pedro that he stabbed their housemate,

Juan Soto.    Pedro saw Soto crawling across the living room floor and called 911.

Responding officers found appellant sitting in the apartment laughing, smiling, and

mumbling with blood on his feet and hands. When EMS arrived at the apartment, Soto

was dead. Officers recovered a bloody kitchen knife from the refrigerator.

       Soto’s autopsy revealed blunt force injuries and stab wounds to his abdomen and

left wrist. The stab wound through the abdomen penetrated the liver and caused Soto’s

death. Soto’s blood was found on the shorts that appellant was wearing on the night of

murder, as well as the kitchen knife recovered from the apartment.

       During the guilt-innocence phase of the trial, the State introduced photographs of

the apartment, photographs of Soto, and photographs of Soto’s autopsy.             Appellant

objected to five of the photographs—State’s exhibits 83 through 87—on grounds that the

photographs were more prejudicial than probative. The trial court overruled appellant’s

objection. After the jury convicted appellant, this appeal ensued.

                                    II.     DISCUSSION

       By his sole issue, appellant contends the trial court erred by allowing the State to

introduce the five photographs. Specifically, appellant argues that the trial court failed to

engage in the proper balancing of relevancy versus the prejudicial effect of the State’s


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exhibits 83–87, and that the inflammatory nature of the “gory pictures” served only to

prejudice him.

A.     Standard of Review and Applicable Law

       We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002) (citing Burden v.

State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001)); see also Gallo v. State, 239 S.W.3d

757, 762 (Tex. Crim. App. 2007) (admissibility of photograph is within sound discretion of

trial judge). We will not reverse the trial court’s ruling unless the ruling falls outside the

zone of reasonable disagreement. Torres, 71 S.W.3d at 760; see also Taylor v. State,

268 S.W.3d 571, 579 (Tex. Crim. App. 2008) (trial court abuses its discretion only if its

decision is “so clearly wrong as to lie outside the zone within which reasonable people

might disagree”). In applying the abuse of discretion standard, we may not reverse a

trial court’s admissibility decision solely because we disagree with it. See Powell v.

State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). We will not disturb a trial court’s

evidentiary ruling if it is correct on any theory of law applicable to that ruling. De La Paz

v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

       Rule 403 allows for the exclusion of otherwise relevant evidence when 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.” Shuffield v. State, 189 S.W.3d 782, 787 (Tex.

Crim. App. 2006) (citing TEX. R. EVID. 403). Rule 403 favors the admission of relevant

evidence and carries a presumption that relevant evidence will be more probative than


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prejudicial. Id. A Rule 403 review includes 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. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004). In the context

of the admission of photographs, we consider the following additional factors:             the

number of the 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. Id. In evaluating the need for the evidence, we must

consider: (1) whether the proponent of the photographs has other available evidence to

establish the fact of consequence that the photograph is relevant to show; (2) the strength

of the other evidence; and (3) whether the fact of consequence is related to an issue that

is in dispute. Erazo, 144 S.W.3d at 495–96.

B.     Analysis

       The State’s exhibits 83–87 are color autopsy photographs depicting the wounds

that Soto received to his abdomen and internal organs. The pictures are close-up views

and do not show Soto’s face or any part of his body other than the relevant organs and

respective wounds.

       With respect to appellant’s first argument, that the trial court failed to conduct a

rule 403 balancing test before admitting the photographs, we note the trial court is not

required to conduct an on-the-record rule 403 factor analysis. As our sister court held:

       There is no requirement that the trial court announce for the record that it
       has conducted and completed the balancing test in its own mind. The fact
       that a trial judge made a proper balancing test can be implied from the
       record. While the record does not contain a direct discussion by the court

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       of its balancing, we presume the court did perform the mandatory balancing
       test.

Nolen v. State, 872 S.W.2d 807, 812 (Tex. App.—Fort Worth 1994, pet. denied). Based

on the record before us, we presume the trial court performed the mandatory rule 403

balancing test. See TEX. R. EVID. 403; see also Nolen, 872 S.W.2d at 812.

       Examining the probative nature of the photographs, we hold that they are probative

of a material issue in the case; i.e., the injury to the liver and the spleen, the manner in

which the knife entered the body, and the cause of death from the knife wound. They

accurately portray what the medical examiner described in her testimony, and added a

logical and helpful demonstration for the jury. The photographs show only the injuries

that Soto received and are no more gruesome than should be expected from an autopsy.

       Furthermore, the photographs were unlikely to impress the jury in some irrational

yet indelible way.   The five autopsy photographs were but a small fraction of the

photographs that were admitted into evidence. The other photographs depicted the

crime scene, murder weapon, and Soto’s body after he was killed. Given the technical

nature of the disputed photographs, they were unlikely to appeal to the jury’s emotions.

Additionally, the State needed little time to develop this evidence. The photographs were

admitted as part of the State’s larger collection of photographic evidence.

       Finally, in reviewing the State’s need for the photographic evidence, we note that

the State offered Dr. Kathryn Callahan, M.D., the forensic pathologist who conducted the

autopsy, to establish Soto’s cause of death. She described the various lobes of the liver

and explained that Soto suffered from significant internal bleeding as a result of the stab

wound. Appellant’s defensive theory was self-defense. Although Dr. Callahan did not

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testify regarding the circumstances of Soto’s abdominal wound, the jury could reasonably

consider the nature of Soto’s wound in determining whether appellant or Soto was the

aggressor. Therefore, the photographs are more than needlessly cumulative evidence.

       Based on a rule the 403 analysis factors, we conclude that the trial court did not

abuse its discretion by finding that the probative value of the photographs was not

outweighed by the danger of unfair prejudice. See Erazo, 144 S.W.3d at 495–96; TEX.

R. EVID. 403. Appellant’s sole issue is overruled.

                                   III.   CONCLUSION

       We affirm the trial court’s judgment.


                                                     GREGORY T. PERKES
                                                     Justice


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

Delivered and filed the
13th day of October, 2016.




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