                                                                                 ACCEPTED
                                                                              03-15-00328-cr
                                                                                     6619835
SEE AMEND BRF FILED                                               THIRD COURT OF APPEALS
ON 9/10/15                                                                   AUSTIN, TEXAS
                                                                       8/24/2015 12:15:52 PM
                                                                           JEFFREY D. KYLE
                                                                                      CLERK
                         NO. 03-15-00328-CR

                                                     FILED IN
                                              3rd COURT OF APPEALS
                  IN THE COURT OF APPEALS FOR      AUSTIN, TEXAS
            THE   THIRD COURT OF APPEALS DISTRICT
                                              8/24/2015 12:15:52 PM
                          AUSTIN, TEXAS           JEFFREY D. KYLE
                                                       Clerk




                  DANIEL LORENZO WILSON,

                             Appellant
                                  v.
                      THE STATE OF TEXAS,

                              Appellee


                       APPELLANT’S BRIEF
               On Appeal from the 264th District Court
                      of Bell County, Texas,
                   Trial Court Cause No. 72,334

                                       E. Alan Bennett
                                       State Bar #02140700
                                       Counsel for Appellant

                                       Sheehy, Lovelace & Mayfield, P.C.
                                       510 N. Valley Mills Dr., Ste. 500
                                       Waco, Texas 76710
                                       Telephone: (254) 772-8022
                                       Telecopier: (254) 772-9297
                                       Email: abennett@slmpc.com
                    Identity of Parties and Counsel

       Appellant, pursuant to Rule of Appellate Procedure 38.1(a), provides

the following list of all parties to the trial court’s judgment and the names

and addresses of all trial and appellate counsel.


Daniel Lorenzo Wilson                                                Appellant

Steven Streigler                                    Trial Counsel for Appellant
P.O. Box 1683
Belton, TX 76513

E. Alan Bennett                             Appellate Counsel for Appellant
510 North Valley Mills Dr., Ste. 500
Waco, Texas 76710

Michael Waldman                                      Trial Counsel for the State
Assistant District Attorney

Bob D. Odom                                  Appellate Counsel for the State
Assistant District Attorney

Bell County District Attorney’s Office
P.O. Box 540
Belton, Texas 76513




Appellant’s Brief                                                          Page 2
                                              Table of Contents

Identity of Parties and Counsel.............................................................................2

Table of Contents ....................................................................................................3

Index of Authorities ................................................................................................4

Statement of the Case .............................................................................................6

Statement Regarding Oral Argument ..................................................................6

Issues Presented ......................................................................................................6

Statement of Facts ...................................................................................................7

Summary of the Argument ..................................................................................18

Argument ...............................................................................................................19

   First Issue: The trial court abused its discretion by admitting
   photographs from the crime scene that were unfairly prejudicial. ............19
   A. This Court Reviews Evidentiary Rulings for an Abuse of Discretion
    ...........................................................................................................................19
   B. Unfairly Prejudicial Evidence May Be Inadmissible ............................20
   C. The State Offered Unnecessary & Unfairly Prejudicial Photographs
    ...........................................................................................................................21
   D. Under Erazo, the Photographs Should Not Have Been Admitted ....23
   E. The Error Affected Wilson’s Substantial Rights ...................................29
Prayer ......................................................................................................................33

Certificate of Compliance ....................................................................................34

Certificate of Service .............................................................................................34



Appellant’s Brief                                                                                                       Page 3
                                            Index of Authorities



                                                      Texas Cases

Aviles v. State, No. 05-07-00477-CR, 2008 WL 1850779 (Tex. App.—Dallas
Apr. 28, 2008, pet. ref’d) (mem. op., not designated for publication) .... 28, 29

Brown v. State, 875 S.W.2d 38 (Tex. App.—Austin 1994, no pet.) ..................23

Burnett v. State, 88 S.W.3d 633 (Tex. Crim. App. 2002) ............................. 30, 31

Chamberlain v. State, 998 S.W.2d 230 (Tex. Crim. App. 1999)..........................28

Craig v. State, 347 S.W.2d 255 (Tex. Crim. App. 1961) .............................. 27, 28

Davis v. State, No. 03-07-00305-CR, 2008 WL 3877696 (Tex. App.—Austin
Aug. 20, 2008, pet. ref’d) (mem. op., not designated for publication) ..........21

Erazo v. State, 144 S.W.3d 487 (Tex. Crim. App. 2004) .................. 21, 24, 26, 27

Fuelberg v. State, 447 S.W.3d 304 (Tex. App.—Austin 2014, pet. ref’d) .........20

Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007) ......................... 19, 20, 21

Haley v. State, 173 S.W.3d 510 (Tex. Crim. App. 2005) .....................................30

Miller-El v. State, 782 S.W.2d 892 (Tex. Crim. App. 1990) ........................ 23, 26

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) (op. on reh’g)
........................................................................................................................... 21, 26

Narvaiz v. State, 840 S.W.2d 415 (Tex. Crim. App. 1992) .................................21

Reese v. State, 33 S.W.3d 238 (Tex. Crim. App. 2000)..................... 24, 26, 27, 29

Sandoval v. State, 409 S.W.3d 259 (Tex. App.—Austin 2013, no pet.) ..... 29, 30

Shuffield v. State, 189 S.W.3d 782 (Tex. Crim. App. 2006) ................................20

State v. Davis, 349 S.W.3d 535 (Tex. Crim. App. 2011) .....................................32


Appellant’s Brief                                                                                                        Page 4
Terrazas v. State, No. 03-05-00344-CR, 2006 WL 2080381 (Tex. App.—Austin
July 28, 2006, pet. ref’d) (mem. op., not designated for publication) ............21

Threadgill v. State, 146 S.W.3d 654 (Tex. Crim. App. 2004) ..............................20




                                                Texas Statutes

TEX. CODE CRIM. PROC. art. 37.07, § 3(a)(1) .........................................................23

TEX. CODE CRIM. PROC. art. 44.29(b) ....................................................................32

TEX. PEN. CODE § 19.02(b)(1) ..................................................................................6




                                                        Rules

TEX. R. APP. P. 43.2(d) ...........................................................................................32

TEX. R. APP. P. 44.2.......................................................................................... 29, 30

TEX. R. EVID. 403 .....................................................................................................20




Appellant’s Brief                                                                                                Page 5
                            Statement of the Case

       Daniel Lorenzo Wilson pleaded guilty to murder without the benefit

of a plea bargain. (CR 15-22), (2 RR 7). See TEX. PEN. CODE § 19.02(b)(1). The

Honorable Martha J. Trudo, presiding judge of the 264th District Court of

Bell County, assessed his punishment at life imprisonment. (CR 25-26), (3

RR 175). Wilson timely filed his notice of appeal. (CR 29).




                    Statement Regarding Oral Argument

       Oral argument will not aid the Court’s decisional process in this

appeal.




                               Issues Presented

First Issue:         The trial court abused its discretion by admitting
                     photographs from the crime scene that were unfairly
                     prejudicial.




Appellant’s Brief                                                          Page 6
                                Statement of Facts


       The indictment alleges that on or about December 9, 2013, Wilson

“did then and there intentionally and knowingly cause the death of an

individual, namely, Karen Edwards, by shooting her with a firearm and

stabbing and cutting the said Karen Edwards with a knife.” (CR 4).

       Wilson pleaded “guilty” to the murder charge.1 (2 RR 7). The trial

court rescheduled the case for a sentencing hearing. (2 RR 9).

       Janet Allman works for the Bell County Communications Center

which handles 9-1-1 calls and dispatches emergency responders. (3 RR 7-8).

The call center received a 9-1-1 call on the morning of December 9, 2013 at

about 5:21. (3 RR 9) Allman identified a recording of that call which was

admitted as State’s Exhibit 1. (3 RR 10) The caller reported that she had

been held hostage and had seen her friend murdered. The shooter shot her

in the leg, stomach and head. He held a gun to the caller’s head as well.

The caller stated that he was drunk and passed out. She took the gun from



1
        Wilson also pleaded “true” to allegations in a motion to adjudicate his deferred
adjudication community supervision for possession of less than 1 gram of cocaine, a
state jail felony. (2 RR 4-7). The trial court adjudicated his guilt and sentenced him to 2
years’ confinement in a state jail. (3 RR 174). Wilson did not appeal from this judgment.



Appellant’s Brief                                                                    Page 7
him and ran away. She gave the address for his apartment. She urged the

operator to tell the officers to turn off their sirens that she heard

approaching because she feared they would awaken the shooter. She

identified the shooter as Daniel Wilson. Officers arrived as she talked to the

operator. (SX 1)

       Latasha Brown is the person who called 9-1-1. She recently relocated

to Dallas County so she could “get myself together mentally.” (3 RR 12).

She moved to Killeen near the end of 2012 after being paroled on her

sentence for burglary of a habitation. (3 RR 12-13). She had a few jobs

including a part-time job at a tire shop where she worked with Wilson. (3

RR 13-14). She identified Wilson and Karen Edwards as being part of the

group of friends that she routinely spent time with at that time. (3 RR 14).

She identified Wilson as “a local drug dealer” and “a very cool person to

hang out with.” “He was a very giving individual.” They barbecued,

watched movies and went out. She spent more time with Wilson than

anyone else. (3 RR 15). Brown had a cocaine habit in 2013 and used daily.

Wilson was one of her main suppliers. (3 RR 16).

       Brown met Karen Edwards through Brown’s girlfriend Cynthia

Anderson. (3 RR 12, 16-17). Edwards had been friends with Anderson’s

Appellant’s Brief                                                        Page 8
mother who passed away in 2012. Anderson referred to Edwards as Aunt

Karen or Momma Karen or some similar term of endearment. Their

families had known each other for a long time. (3 RR 16-17). Edwards lived

two doors down from Wilson in the same apartment complex. Brown

understood that “they had dated years before.” (3 RR 18). As far as Brown

could see, Edwards and Wilson saw each other on a regular basis and “got

along great.” Edwards “smoked crack cocaine” and prostituted herself or

hustled money to support herself. Wilson “always helped her” when she

needed money or anything. “Always.” He helped her with her rent several

times. (3 RR 19).

       Brown went to check on Wilson about every other day in late 2013

because he had been injured when a car struck him while riding a bicycle.

(3 RR 17). In December 2013, Brown and Anderson had several arguments.

Brown stayed at Wilson’s house nearly the entire weekend of December 11.

“We watched movies, drank beers, smoked cigarettes, ordered pizza. I was

just hanging out. He was my escape from arguing and fighting and stuff

like that.” Wilson lived less than a half mile from Brown and Anderson. (3

RR 20). That Friday night, Brown testified that she was using drugs

(cocaine) but Wilson was not. She got the cocaine from him though. (3 RR

Appellant’s Brief                                                    Page 9
21). She walked home around midnight and awoke around noon on

Saturday. Issues still remained with Anderson so she went back to Wilson’s

house that afternoon and they did the same things they had done the night

before. (3 RR 22). She went home Saturday night and returned Sunday

afternoon around 2:00 or 3:00. They played video games; she went to the

store (with Wilson’s money) for beer and cigarettes; and Wilson ordered

pizza. (3 RR 23).

       Karen Edwards came over to Wilson’s house around 11:30 that

Sunday night.2 Brown was about to leave to go home. Wilson was in the

bathroom. Edwards came inside and sat on the couch. (3 RR 24). Wilson

came into the living room, and Brown headed to the bathroom. Wilson sat

down next to Edwards, and they started talking. (3 RR 25). As Brown was

closing the bathroom door, she heard a gunshot. (3 RR 25-26). She knew

that Wilson had a gun because she had seen him cleaning it before. He kept

it in a drop-down compartment in his sectional sofa. (3 RR 26). Brown

never heard Wilson raise his voice. When Edwards had asked him for a

cigarette, he told her that he did not have any. Then she asked for money to


2
       Wilson kept the key to Edwards’s apartment so she would not lose it. She
typically came by at night to let him know she was home and get her key. (3 RR 24).


Appellant’s Brief                                                           Page 10
buy a pack. She thought Wilson was joking around with Edwards. Then,

she heard the shot, and Karen started screaming. “And the person that I

saw was not Mr. Wilson. It couldn’t have been.” “I never seen him like

that.” (3 RR 27). She explained that his eyes turned red and he had “a blank

stare almost like it wasn’t him.” (3 RR 29). “[H]e was infuriated.” (3 RR 30).

       Brown walked back to the living room and saw Wilson sitting on the

sofa holding his gun. Edwards was holding her leg where it appeared to

Brown that she had been shot. (3 RR 28). Edwards asked Wilson to just let

her go, and she promised not to tell anyone what he had done. Brown

joined in and asked him to let her take Edwards home. (3 RR 30). Wilson

told them, “I know you won’t say anything because you’re not leaving.”

Then he started “rambling and mumbling under his breath.” (3 RR 31). He

went and got a towel or rag and they tried to tie it around Edwards’s leg to

stop the bleeding. (3 RR 31-32).

       And she just really kept screaming, just screaming like yelling,
       “Daniel, you shot me, you shot me. Daniel, you shot me. Oh my
       god, I can't believe you shot me.” And he's, “you shut up,” you
       know, be whatever, you know, be quiet, “I can't think. Just shut
       up,” you know, telling her to shut up. She continues screaming
       and once she kind of calms down a little bit, and he's standing
       there just like, you know, “I love you,” right? You know, he got
       calm. And I didn't understand that.



Appellant’s Brief                                                         Page 11
(3 RR 32).

       After Wilson “got calm,” he shot Edwards in the stomach. This was

about thirty minutes after he shot her in the leg. (3 RR 32). Wilson was

standing over Edwards as she sat on the sofa when he shot her the second

time. He also unleashed a string of obscenities and told Edwards, “[Y]ou’re

going to learn to stop playing with me.” (3 RR 33). At that time, Edwards

“begged for her life, she wanted to call her kids, she wanted to talk to her

momma one last time.” Brown “ran and got in the shower [and] nervously

smoked a cigarette.” Then she heard a thump and Edwards screaming

something to the effect “it’s leaving out of me, my life is leaving.” (3 RR

34). Brown was scared and did not know what to do. Then she saw

Edwards sliding backward across the floor to the bathroom door. (3 RR 35).

Brown tried to get her attention so they could jump out of a window and

escape. (3 RR 35-36).

       And she's like, no, he's going to kill me if I try that. And I knew
       she couldn't walk, she had been shot in her leg. So I'm just like
       slide in here and we'll lock the door and I'll put you out the
       window. We'll go out the window and we'll make it out here
       and she's like no. She's crying. And it's a bit chaotic.

       Wilson was still standing in the living room holding the gun. (3 RR

36). “He started waving it,” and Edwards screamed every time he raised

Appellant’s Brief                                                            Page 12
the gun. Brown thought he was taunting her. Wilson was saying, “I should

kill you right now.” Edwards begged him to let her call her children and

say goodbye before he killed her. Brown stepped out of the shower and

tried to pick Edwards up, but she was too heavy. (3 RR 37-38). “Wilson got

a little upset.” He picked Edwards up and tossed her aside like a sack of

potatoes. (3 RR 38). “He told her to pray to her maker, and he shot her in

the head, and she was still breathing. So he took a flashlight and smashed

her face.” More than an hour passed between the time when he shot her in

the stomach and when he shot her in the head. (3 RR 39). Apparently,

Wilson struck her repeatedly with the flashlight because she was still

breathing. (3 RR 39-40). Brown saw “chunks of brain matter, skin flying

everywhere.” (3 RR 41-42). Then, because it appeared she was still

breathing, Wilson threw her down and stepped on her neck. “[H]e grabbed

a sword off of the table and just started chopping downwards.” (3 RR 42).

       Wilson opened the door and told Brown that she would help him

dispose of the body or she would be next. He pointed his gun at her and

pulled the trigger, but there were no bullets left in it. (3 RR 43). They

moved the body to the front porch. (3 RR 44-45). They tried to carry it

across the street but Brown kept dropping it because it was so heavy. Then

Appellant’s Brief                                                    Page 13
they grabbed Edwards’s legs and dragged her body behind a vacant house.

(3 RR 45-46)

       Wilson ordered Brown back in his house. He told her to help him

clean up the mess. He took off his clothes and told her to put them in a

plastic bag. Brown asked to borrow a phone so she could get a ride to a

store for some bleach to clean up. (3 RR 46). After that, they drank beers

and smoked cigarettes. He gave her $5.00 for bleach and let her call a

friend. She grabbed his gun and left. She testified that she “was high out of

my mind that night.” (3 RR 47). She met her friend and went to another

friend’s house. They smoked cigarettes, drank alcoholic beverages, smoked

marijuana and used cocaine. (3 RR 48). Then, Brown changed clothes and

put the clothes she had been wearing in a plastic bag because they still had

“brain matter and blood” on them. (3 RR 48-49). She drank some more

before a friend convinced her to call the police, which she did. (3 RR 49).

       Over objection, the State offered eighteen photographs in evidence

from the crime scene. (3 RR 50-62). Brown concluded that this was totally

out of character for Wilson and she had never him act anything like that

before. (3 RR 63-64). She still has no idea why he got so upset that night. (3

RR 68). He was “inebriated . . . but not drunk.” (3 RR 71).

Appellant’s Brief                                                       Page 14
       Doctor Emily Ogden is a medical examiner with the Southwestern

Institute of Forensic Sciences in Dallas. (3 RR 82), (SX 2). She performed the

Edwards autopsy. (3 RR 84). The autopsy revealed a series of injuries

consistent with those described by Brown. (3 RR 85-92), (SX 2). Toxicology

results indicated the presence of ethanol, cocaine and marijuana in her

system. (3 RR 92-93), (SX 2).

       Killeen Police Detective Rodney Wilmore responded to Wilson’s

apartment as the crisis negotiator with the tactical response unit. (3 RR 99).

Wilson ultimately surrendered to the authorities without incident. (3 RR

101) Wilmore served as the lead investigator for the case. He described the

crime scene and additional photographs and diagrams were admitted

through him without objection. He agreed that Wilson cooperated with the

responding officers. (3 RR 116).

       Psychologist Dr. Stephen Thorpe testified for the defense. He

performed a clinical interview of Wilson and conducted a battery of

psychological tests. (3 RR 121-22). He opined that Wilson has an IQ of 76

which places him in the “borderline range of intelligence.” On the

achievement test, Wilson demonstrated a fifth or sixth grade level of

reading and math which placed him somewhere in the range of an 11- to

Appellant’s Brief                                                       Page 15
13-year-old. (3 RR 122). Dr. Thorpe determined that Wilson suffered from

“some type of psychosis schizophrenia” characterized by “very bizarre

hallucinations, delusional beliefs, paranoid ideation.” His history also

indicated that he had experienced depression, anxiety and substance abuse

issues. (3 RR 125). Dr. Thorpe was struck by the fact that Wilson had not

been previously diagnosed or treated for his schizophrenia until he was

arrested in this case. (3 RR 126). The treatment regimen has resulted in

significant improvement for Wilson. (3 RR 126-27).

       On cross-examination, Dr. Thorpe agreed that prior evaluations and

reports had not detected any psychological or mental health issues for

Wilson. (3 RR 139-40). He testified that long-term cocaine use “can have a

significant impact organically on the brain.” Prolonged alcohol abuse can

likewise have an adverse effect. (3 RR 140). Those effects could present

themselves in a manner very similar to schizophrenia. (3 RR 140-41).

       In closing arguments, the defense asked the trial court to take

Wilson’s diagnosis and substance-abuse problems into account and assess

a lesser punishment. (3 RR 165-69). The State asked for a life sentence. (3

RR 173-74).




Appellant’s Brief                                                      Page 16
       The trial court assessed Wilson’s punishment at life imprisonment.

(CR 25-26), (3 RR 175).




Appellant’s Brief                                                  Page 17
                      Summary of the Argument

       Latasha Brown testified in graphic detail regarding the manner in

which Wilson carried out this offense. Nevertheless, the State also offered

seven graphic photographs through Brown that depicted Edwards’s

injuries or the implements Wilson used to inflict them. A few of these

focused on the bloodied results of Wilson’s conduct including “blood and

skin and brain matter.” Because Wilson pleaded guilty and because Brown

described the events leading to Edwards’s death in graphic detail, the

admission of these photographs was unnecessary, and the probative value

of these photographs was substantially outweighed by the danger of unfair

prejudice. Thus, the court abused its discretion by admitting these

photographs.




Appellant’s Brief                                                    Page 18
                                  Argument

First Issue:        The trial court abused its discretion by admitting
                    photographs from the crime scene that were unfairly
                    prejudicial.

       Latasha Brown testified in graphic detail regarding the manner in

which Wilson carried out this offense. Nevertheless, the State also offered

seven graphic photographs through Brown that depicted Edwards’s

injuries or the implements Wilson used to inflict them. A few of these

focused on the bloodied results of Wilson’s conduct including “blood and

skin and brain matter.” Because Wilson pleaded guilty and because Brown

described the events leading to Edwards’s death in graphic detail, the

admission of these photographs was unnecessary, and the probative value

of these photographs was substantially outweighed by the danger of unfair

prejudice. Thus, the court abused its discretion by admitting these

photographs.


A. This Court Reviews Evidentiary Rulings for an Abuse of Discretion

       Rulings on the admissibility of evidence are reviewed under an

abuse-of-discretion standard. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim.



Appellant’s Brief                                                      Page 19
App. 2007); Fuelberg v. State, 447 S.W.3d 304, 315 (Tex. App.—Austin 2014,

pet. ref’d).

       A photograph is generally relevant and admissible if verbal

testimony regarding what is depicted in the photograph is also admissible.

See Threadgill v. State, 146 S.W.3d 654, 671 (Tex. Crim. App. 2004).


B. Unfairly Prejudicial Evidence May Be Inadmissible

       Under Rule of Evidence 403 however, relevant evidence is

inadmissible if the probative value of the evidence “is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” TEX. R. EVID. 403. Rule 403

favors the admissibility of relevant evidence, and it is presumed that

relevant evidence is more probative than prejudicial. Shuffield v. State, 189

S.W.3d 782, 787 (Tex. Crim. App. 2006).

       [A] proper Rule 403 analysis by either the trial court or a
       reviewing court 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; (4) the proponent’s need
       for the evidence. In the context of the admission of
       photographs, we also consider the factors set out in Narvaiz.
       Those factors include the number of photographs, the size,


Appellant’s Brief                                                            Page 20
       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.

Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004) (citing Narvaiz v.

State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992); Montgomery v. State, 810

S.W.2d 372, 389-90 (Tex. Crim. App. 1991) (op. on reh’g)) (footnotes

omitted); see Davis v. State, No. 03-07-00305-CR, 2008 WL 3877696, at *5

(Tex. App.—Austin Aug. 20, 2008, pet. ref’d) (mem. op., not designated for

publication); Terrazas v. State, No. 03-05-00344-CR, 2006 WL 2080381, at *6

(Tex. App.—Austin July 28, 2006, pet. ref’d) (mem. op., not designated for

publication). “The availability of other means of proof and the

circumstances unique to each individual case must also be considered.”

Gallo, 239 S.W.3d at 762.


C. The State Offered Unnecessary & Unfairly Prejudicial Photographs

       Wilson objected to eighteen photographs that were admitted through

Brown as sponsoring witness. This issue focuses on seven of these

photographs.

       Wilson objected to the admission of the following photographs:

   1. State’s Exhibit 3      aerial view of neighborhood



Appellant’s Brief                                                       Page 21
   2. State’s Exhibit 7     Edwards’s body in backyard

   3. State’s Exhibit 8     closer view of body

   4. State’s Exhibit 9     close-up of Edwards’s face and chest

   5. State’s Exhibit 10    house and yard where body left and pathway
                            from Wilson’s apartment

   6. State’s Exhibit 11    Wilson’s apartment building

   7. State’s Exhibit 13    bloodstains where Brown dropped the body

   8. State’s Exhibit 14    pool of blood on sidewalk

   9. State’s Exhibit 16    walkway to apartment

   10. State’s Exhibit 20   Wilson’s and Edwards’s apartment doors

   11. State’s Exhibit 21   view from Wilson’s door to house where body
                            left

   12. State’s Exhibit 22   close up of view in State’s Exhibit 21

   13. State’s Exhibit 23   sectional sofa in Wilson’s apartment

   14. State’s Exhibit 24   Wilson’s living room and entryway

   15. State’s Exhibit 25   sword “used to chop up” Edwards’s body (3
                            RR 61)

   16. State’s Exhibit 31   flat-screen television with “blood and skin
                            and brain matter” on it (3 RR 61)

   17. State’s Exhibit 34   flashlight “used to smash Miss Edwards’ face
                            in” (3 RR 61-62)



Appellant’s Brief                                                    Page 22
   18. State’s Exhibit 35      close-up view of bloody flashlight

   Wilson’s appellate complaint challenges the admission of State’s

Exhibits 4, 7, 8 and 15-18.


D. Under Erazo, the Photographs Should Not Have Been Admitted

Probative Value

         The challenged photographs do have probative value with regard to

the extent of the injuries suffered by Edwards and the culpable mental state

with which Wilson acted. However, because Wilson pleaded guilty, neither

of these was contested.

         Evidence of the “circumstances of the offense” is admissible during

the punishment phase. TEX. CODE CRIM. PROC. art. 37.07, § 3(a)(1). The

circumstances of the offense include the extent of a victim’s injuries “so

long as a factfinder may rationally attribute moral culpability to the

accused for that injury.” Miller-El v. State, 782 S.W.2d 892, 896 (Tex. Crim.

App. 1990); Brown v. State, 875 S.W.2d 38, 40 (Tex. App.—Austin 1994, no

pet.).




Appellant’s Brief                                                      Page 23
Ability to Impress Factfinder in Irrational Manner

       The nature of the photographs themselves is relevant to this issue. See

Erazo, 144 S.W.3d at 494-95; Reese v. State, 33 S.W.3d 238, 242 (Tex. Crim.

App. 2000). 3 The challenged photographs are color photographs whose

actual size is unclear from the record on file. Actually, however, they were

much larger in the eyes of the trial court because they were projected on a

screen.4 (3 RR 53).

       State’s Exhibit 9 is a close-up of Edwards’s face and chest depicting

dirt or some other substance on her face. This exhibit was completely

unnecessary as her identity was not at issue and other photographs were

admitted depicting the location and condition of her body.

       State’s Exhibits 13 and 14 depict blood pooled on the sidewalk. These

bloody photographs were completely unnecessary as Brown testified



3       The photographs held unfairly prejudicial in Erazo and Reese were admitted
during the punishment phase as were the photographs at issue in this appeal. See Erazo
v. State, 144 S.W.3d 487, 488 (Tex. Crim. App. 2004); Reese v. State, 33 S.W.3d 238, 239
(Tex. Crim. App. 2000).

4      The record is silent regarding the size of the screen, but it was assuredly much
larger than the exhibits themselves. The record reflects that the lights were turned off to
view the documents on screen, and both the prosecutor and Brown used a laser pointer
on several occasions to identify certain details in the photographs depicted on the
screen. (3 RR 53-60).



Appellant’s Brief                                                                   Page 24
regarding how they dragged the body from Wilson’s apartment to the

house across the street and the State offered other photographs depicting

the path they took dragging the body and the place where they left the

body.

        State’s Exhibit 25 depicts the sword “used to chop up” Edwards’s

body. (3 RR 61) The admission of this photograph was unnecessary as

Brown graphically described Wilson’s actions with the sword.

        State’s Exhibits 34 and 35 depict the bloodied flashlight Wilson “used

to smash Miss Edwards’ face in.” Again, these exhibits were cumulative of

Brown’s graphic testimony regarding Wilson’s actions that night.

        Finally, State’s Exhibit 31 depicts Wilson’s flat-screen television

covered with “blood and skin and brain matter.” (3 RR 61) This

photograph is grossly prejudicial and, at best, marginally probative. It

belies logic or common sense to say that the probative value of this

photograph in particular is not substantially outweighed by the danger of

unfair prejudice.

        And collectively, the challenged photographs appealed to the trial

judge’s emotions and encouraged her to make her punishment decision on




Appellant’s Brief                                                       Page 25
an emotional basis without regard to the logical probative force of the

evidence. See Erazo, 144 S.W.3d at 495; Reese, 33 S.W.3d at 242.

Time Needed to Develop Evidence

       The State did not devote an inordinate amount of the trial to the

admission of the complained-of photographs or the testimony describing

them. Id..

The State’s Need for This Evidence

       There are three questions that the reviewing court should
       answer when addressing this factor: “Does the proponent have
       other available evidence to establish the fact of consequence
       that the [photograph] is relevant to show? If so, how strong is
       that other evidence? And is the fact of consequence related to
       an issue that is in dispute?”

Erazo, 144 S.W.3d at 495-96 (quoting Montgomery, 810 S.W.2d at 390).

       The relevant facts of consequence sought to be established by the

photographs were Wilson’s culpable mental state and the extent of

Edwards’s injuries. See Miller-El, 782 S.W.2d at 896. However, Wilson

pleaded guilty, and the other unchallenged evidence unquestionably

established the extent of Edwards’s injuries. Therefore, the complained-of

photographs were offered as additional proof of undisputed issues. See

Erazo, 144 S.W.3d at 496; Reese, 33 S.W.3d at 242.



Appellant’s Brief                                                        Page 26
Weighing the Factors

       Considering (1) the graphic nature of the photographs and the

emotional impact they doubtless had on the trial judge; (2) the fact that

Wilson pleaded guilty to the offense; and (3) the State’s limited need to

establish the undisputed facts regarding the extent of Edwards’s injuries or

Wilson’s culpable mental state; the probative value of the challenged

photographs was substantially outweighed by the danger of unfair

prejudice. See Erazo, 144 S.W.3d at 496; Reese, 33 S.W.3d at 242-43. Although

the photographs did have probative value and the State used a limited

amount of time to introduce them in evidence, “these factors are not

enough to overcome the prejudicial qualities of the photograph[s] and the

State’s limited need for the photograph[s] in the context of the

[undisputed] issues.” See Reese, 33 S.W.3d at 243.

Similar Cases

       Counsel has located other decisions in which similar photographs

were ruled admissible in the face of a Rule 403 (or similar) objection. These

cases are all distinguishable.

       In Craig v. State, 347 S.W.2d 255 (Tex. Crim. App. 1961), the trial court

admitted four color photographs that “exhibited a gory scene created by


Appellant’s Brief                                                         Page 27
blood and brain matter from the deceased’s wounds.” 5 Id. at 261. The

Court held that the photographs were not impermissibly “inflammatory

and prejudicial” because they tended to refute the defense’s theory of the

case that the victim’s death was accidental. See id. at 261-62. Craig is

distinguishable from Wilson’s case because the cause of death was

disputed.

       In Chamberlain v. State, 998 S.W.2d 230 (Tex. Crim. App. 1999), the

appellant complained about the admission of eight color photographs, one

of which depicted “a close up of the victim’s face with brain matter

extruded through the large wound on the side of the head.” Id. at 236-37.

Chamberlain is distinguishable because the defendant in that case contested

his guilt. Id. at 236-37.

       Finally, in an unpublished memorandum opinion in Aviles v. State,

No. 05-07-00477-CR, 2008 WL 1850779 (Tex. App.—Dallas Apr. 28, 2008,

pet. ref’d) (mem. op., not designated for publication), the appellant

complained of the admission of four crime-scene photographs and seven



5      This is how the Court of Criminal Appeals phrased Craig’s contention regarding
what the photographs depicted. Craig v. State, 347 S.W.2d 255, 265-66 (Tex. Crim. App.
1961).



Appellant’s Brief                                                              Page 28
autopsy photographs. Id. at *7. Two of the crime-scene photographs

depicted “the street with blood, tire tracks, and a portion of brain matter.”

Id. Two of the autopsy photographs provided a “graphic” depiction of the

victim’s head injuries in which the “entire top of the head was split open”

and the brain “expelled out of the head.” Id. at *8. Aviles is likewise

distinguishable because the defendant contested his guilt.

       Unlike, these cases, Wilson admitted his guilt and did not in any

manner dispute the cause of death or the extent of Edwards’s injuries.

Thus, these cases do not offer support for the admission of the complained-

of photographs.

       For the foregoing reasons, the trial court abused its discretion by

admitting the challenged photographs in evidence.


E. The Error Affected Wilson’s Substantial Rights

       This is non-constitutional error so harm is assessed under Rule of

Appellate Procedure 44.2(b). See TEX. R. APP. P. 44.2(b); Reese, 33 S.W.3d at

243; Sandoval v. State, 409 S.W.3d 259, 287 (Tex. App.—Austin 2013, no

pet.). Rule 44.2(b) requires reversal if the error affected the defendant’s




Appellant’s Brief                                                      Page 29
substantial rights. TEX. R. APP. P. 44.2(b). Wilson’s substantial rights were

affected by the erroneous admission of these prejudicial photographs.

       A substantial right is affected when the error had a substantial
       and injurious effect or influence in determining the jury’s
       verdict. In assessing the likelihood that the jury’s decision was
       adversely affected by the error, an appellate court should
       consider everything in the record, including any testimony or
       physical evidence admitted for the jury’s consideration, the
       nature of the evidence supporting the verdict, the character of
       the alleged error and how it might be considered in connection
       with other evidence in the case. The reviewing court may also
       consider the jury instructions, the State’s theory and any
       defensive theories, closing arguments, voir dire and whether
       the State emphasized the error.

Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005) (footnotes

omitted); accord Sandoval, 409 S.W.3d at 287-88.

       [I]f the reviewing court has “a grave doubt” that the result was
       free from the substantial influence of the error, then it must
       treat the error as if it did. “Grave doubt” means that “in the
       judge’s mind, the matter is so evenly balanced that he feels
       himself in virtual equipoise as to the harmlessness of the error.”
       Thus, “in cases of grave doubt as to harmlessness the petitioner
       must win.”

Burnett v. State, 88 S.W.3d 633, 637-38 (Tex. Crim. App. 2002) (quoting

O’Neal v. McAninch, 513 U.S. 432, 435-37, 115 S. Ct. 992, 994-95, 130 L. Ed.

2d 947 (1995) (other citations omitted); accord Sandoval, 409 S.W.3d at 288.




Appellant’s Brief                                                           Page 30
       The State advised the trial court at the beginning of the sentencing

phase that it would be relying on a number of exhibits. (3 RR 6).

       The State relied primarily on photographs as its physical evidence.

The other two significant pieces of physical evidence were the 9-1-1

recording and the autopsy report. Notably, the 29 unchallenged

photographs were rather innocuous in comparison to the 7 that form the

basis of Wilson’s appellate complaint. These prejudicial photographs were

projected before the trial judge on a large screen, thus magnifying their

prejudicial effect. These photographs appealed to the trial judge’s emotions

and encouraged her to improperly make her punishment decision on an

emotional basis without regard to the logical probative force of the

evidence.

       The erroneously-admitted photographs were indelibly etched in the

mind of the trial judge. After viewing these photographs, this Honorable

Court will at best find itself “in virtual equipoise as to the harmlessness of

the error.” See O’Neal, 513 U.S. at 435, 115 S. Ct. at 994; Burnett, 88 S.W.3d at

637-38. If so, the Court must find, as Wilson contends, that the error

affected his substantial rights. Id.




Appellant’s Brief                                                          Page 31
Summary

       The trial court abused its discretion by admitting photographs in

violation of Rule 403. This error cause Wilson to suffer harm. Therefore, the

Court should reverse the judgment as to punishment and remand this

cause for a new punishment trial. See TEX. CODE CRIM. PROC. art. 44.29(b);

TEX. R. APP. P. 43.2(d); State v. Davis, 349 S.W.3d 535, 540 (Tex. Crim. App.

2011).




Appellant’s Brief                                                      Page 32
                                  Prayer

       WHEREFORE, PREMISES CONSIDERED, Appellant Daniel Lorenzo

Wilson prays that the Court reverse the judgment and remand this cause to

the trial court for further proceedings and grant such other and further

relief to which he may show himself justly entitled.

                                         Respectfully submitted,


                                            /s/ Alan Bennett
                                         E. Alan Bennett
                                         SBOT #02140700
                                         Attorney for Appellant

                                         Sheehy, Lovelace & Mayfield, P.C.
                                         510 N. Valley Mills Dr., Ste. 500
                                         Waco, Texas 76710
                                         Telephone:        (254) 772-8022
                                         Fax:        (254) 772-9297
                                         Email:      abennett@slmpc.com




Appellant’s Brief                                                    Page 33
                        Certificate of Compliance

       The      undersigned     hereby     certifies,    pursuant     to   Rule     of

Appellate Procedure       9.4(i)(3),     that    this   computer-generated        brief

contains 5,942 words.



                                                   /s/ Alan Bennett
                                                E. Alan Bennett




                              Certificate of Service

       The undersigned hereby certifies that a true and correct copy of this

brief was electronically served to counsel for the State, Bob Odom,

bob.odom@co.bell.tx.us, on August 24, 2015.



                                                   /s/ Alan Bennett
                                                E. Alan Bennett




Appellant’s Brief                                                             Page 34
