                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                §
 CURTIS LEON COPELAND,                                           No. 08-12-00053-CR
                                                §
                             Appellant,                            Appeal from the
                                                §
 v.                                                          362nd Judicial District Court
                                                §
 THE STATE OF TEXAS,                                           of Denton County, Texas
                                                §
                             Appellee.                          (TC# F-2010-1387-D)
                                                §


                                          OPINION

       Curtis Leon Copeland appeals from the trial court’s judgment convicting him of capital

murder and sentencing him to life imprisonment. In three issues, Copeland argues the evidence is

insufficient and the trial court violated his constitutional right to cross-examine and confront

witnesses and erred in admitting prejudicial evidence. Concluding that the issues Copeland raises

have no merit, we affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND

       Copeland was charged with killing his girlfriend’s three-year-old son, Jesse Fisher, Jr., “by

grabbing, throwing, striking and slamming Jesse . . . with [his] hand . . . .” During one of his

custodial interrogations, Copeland admitted to investigators that he grabbed Jesse, who was on

Copeland’s bed, and slammed him so “hard” to the floor that Jesse screamed, and in Copeland’s
words, “draw[ed] up.” Jesse’s head struck the floor with such force that the resulting trauma to

his brain caused his death.

                              SUFFICIENCY OF THE EVIDENCE

       In his first issue, Copeland challenges the sufficiency of the evidence sustaining his

conviction. Copeland contends the evidence does not “show[] [that] [he] was alone with [Jesse]

at the times the injuries occurred” and that he intended to cause Jesse’s death. We disagree.

                                       STANDARD OF REVIEW

       The legal sufficiency standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99

S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), is the only standard a reviewing court applies in

determining whether the evidence is sufficient to support a conviction. Brooks v. State, 323

S.W.3d 893, 894-95 (Tex.Crim.App. 2010). When reviewing the sufficiency of the evidence to

support a criminal conviction, we view the evidence in the light most favorable to the verdict to

determine whether, based on that evidence and reasonable inferences therefrom, a rational juror

could have found the essential elements of the offense beyond a reasonable doubt. Hooper v.

State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007), quoting Jackson, 443 U.S. at 318-19, 99 S.Ct. at

2788-89.

       Under a legal sufficiency review, we may not substitute our judgment for that of the jurors,

who are the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given

to the evidence. Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App. 2007). We therefore

defer to the jurors’ resolution of these issues and to their responsibility to draw reasonable

inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13, citing Jackson, 443 U.S.

at 318-19, 99 S.Ct. at 2788-89. In resolving what the facts are and what reasonable inferences


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may be drawn from them, the jurors may accept one version of the facts and reject another, and

they may reject any part of a witness’s testimony, even if uncontradicted. See Margraves v. State,

34 S.W.3d 912, 919 (Tex.Crim.App. 2000), overruled on other grounds, Laster v. State, 275

S.W.3d 512 (Tex.Crim.App. 2009); Henderson v. State, 29 S.W.3d 616, 623 (Tex.App.--Houston

[1st Dist.] 2000, pet. ref’d).

                                              APPLICABLE LAW

        Copeland was charged with the capital murder of a child younger than six years of age.

See former TEX.PENAL CODE ANN. § 19.03(a)(8)(West 2011). 1 Capital murder includes the

element that the actor intentionally caused the victim’s death. Morrow v. State, 753 S.W.2d 372,

375 n.3 (Tex.Crim.App. 1988). Intent may be inferred from any facts which tend to prove its

existence. Those facts include: (1) the acts, words, conduct of the accused and the method of

committing the crime, see Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App. 2002); (2) evidence of

flight or attempts to cover up guilt, see Bigby v. State, 892 S.W.2d 864, 883 (Tex.Crim.App.

1994); and (3) the extent of the injuries to the victim, the method used to produce the injuries, and

the relative size and strength of the parties, see Patrick v. State, 906 S.W.2d 481, 487

(Tex.Crim.App. 1995).          In a murder case, evidence of a particularly brutal or ferocious

mechanism of death, inflicted on a helpless victim, can be probative on the issue of intent or

knowledge. Patrick, 906 S.W.2d at 487.

                                                 DISCUSSION

        When viewed in the light most favorable to the verdict, the evidence is sufficient to prove

Copeland alone inflicted the fatal injury upon Jesse and intended to cause Jesse’s death.


1
  Section 19.03(a)(8) now provides that a person commits capital murder if the person murders a child younger than
ten years of age. TEX.PENAL CODE ANN. 19.03(a)(8)(West Supp. 2012).
                                                        3
                                                  Source of Injury

         The evidence adduced by the State established that Jesse’s fatal injury occurred while Jesse

was alone with Copeland. “When an adult defendant has had sole access to a child at the time

[his] injuries are sustained, the evidence is sufficient to support a conviction for . . . murder if the

child dies.” Garcia v. State, 16 S.W.3d 401, 405 (Tex.App.--El Paso 2000, pet. ref’d). On the

day in question, Copeland was the only adult taking care of Jesse and Jesse’s half-brother,

Malachi, because their mother had left earlier that morning to give birth to Copeland’s son.

Copeland admitted to slamming Jesse to the floor on that day. There was evidence this injury

resulted in Jesse’s death and it was less than one day old.

         Copeland appears to argue that because there is no evidence showing that he alone caused

the other injuries to Jesse’s body, his conviction cannot stand.2 Copeland’s argument has no

merit. As acknowledged by Copeland in his brief, “[n]one of the injuries, except the blunt force

to the head and brain, caused [Jesse’s death].”

         We hold that the evidence was sufficient for a rational juror to conclude that Copeland

inflicted the fatal injury upon Jesse. See Bryant v. State, 909 S.W.2d 579, 583 (Tex.App.--Tyler

1995, no pet.)(where evidence showed child had been left alone with defendant and injuries to

child occurred approximately thirty minutes prior to child being brought to emergency room,

evidence was sufficient to support conviction); Elledge v. State, 890 S.W.2d 843, 846

(Tex.App.--Austin 1994, pet. ref’d)(undisputed medical testimony placing adult defendant alone



2
  In the words of the medical director of the child abuse team at the hospital where Jesse was treated, “[Jesse] suffered
from severe abusive head trauma, and he was a battered child with numerous injuries.” Those injuries, as catalogued
by this physician, included: (1) bruises on the head, right upper forehead, left eye, right eye, right eyebrow, right
upper eyelid, right cheekbone, ear, chin, chest, armpit, left nipple, left upper arm, left elbow, left inner thigh, scrotum,
ankles, feet, toes, buttocks, back, and hip; (2) trauma to the penis; (3) fractures of the right pelvic bone and sacrum; and
(4) torn lip.
                                                             4
with child when fatal injuries were sustained supported conviction for injury to a child); Butts v.

State, 835 S.W.2d 147, 151 (Tex.App.--Corpus Christi 1992, pet. ref’d)(injuries sustained by child

established by medical testimony to have occurred at time adult defendant admitted to sole

possession of child).

                                          Intent to Kill

       The evidence adduced by the State also established that Copeland intentionally caused

Jesse’s death. As set forth above, the jury was permitted to rely on Copeland’s words, acts,

conduct, and method in committing the crime to infer he intended to kill Jesse. Copeland

admitted to investigators that he slammed Jesse to the floor at approximately 10 a.m. but did not

ask his neighbor to call 911 until 4 p.m. While Jesse lay unresponsive, first on the bed and then on

the couch, Copeland went about his day as if nothing had occurred, smoking cigarettes, cooking,

feeding Malachi, and walking to his next-door neighbor’s house to use the phone to check on his

girlfriend’s and newborn’s welfare. It was only when Jesse’s breathing became labored that

Copeland decided to seek help.

       It was also permissible for the jury to rely upon Copeland’s attempts to cover his tracks to

infer he possessed the intent to kill Jesse. Copeland reported different versions of what transpired

to those he encountered on that fateful day and the days immediately thereafter. Copeland told

his next door neighbor and her family that Jesse had fainted, but offered no further explanation.

Copeland, however, expounded upon his story when speaking to one of the first emergency

responders at the scene. Copeland told that person that he heard a thud from another room in

house and found Jesse lying on the floor, elaborating further that Jesse had fallen down a flight of

stairs at some apartments a few days before. When Copeland spoke to investigators, he related


                                                 5
three different stories over the course of two custodial interviews three days apart. Copeland told

investigators initially that Jesse fell, then that he pushed Jesse off the bed without intending to hurt

Jesse, and finally that he grabbed Jesse by his shirt and slammed him to the floor.

        The jury was likewise permitted to rely on the extent of Jesse’s injuries, the manner in

which he received them, and the relative size and strength of Jesse and Copeland to infer Copeland

intended to kill Jesse. As noted above, Jesse had numerous other injuries to his body. Some of

the more severe ones were black eyes and fractures to the pelvic bone and sacrum. Copeland

admitted to investigators that he gave Jesse the black eyes, paddled Jesse with a board, and kicked

Jesse with steel-toe boots. When Jesse was autopsied, he weighed thirty-six pounds.

        Copeland contends that the jury could not have reasonably inferred that he intended to kill

Jesse because there was “uncontroverted evidence” that “[he] called 911, administered CPR,

showed concern over Jesse’s well-being, contacted neighbors about the injury, [and] cooperated in

the investigation by giving statements and medical history.” Given the evidence of Copeland’s

callous, indifferent brutality recounted above, the jury was free to believe that Copeland intended

to kill Jesse notwithstanding “uncontroverted evidence” of Copeland’s “other behavior.” See

Margraves, 34 S.W.3d at 919; Henderson, 29 S.W.3d at 623. That the jury chose to disregard

Copeland’s other behavior was within its exclusive province, and in conducting our legal

sufficiency review, we are prohibited from re-evaluating the weight and credibility of this

evidence or substituting our judgment for that of the jury. See Williams, 235 S.W.3d at 750.

        We conclude that the evidence is legally sufficient to support the jury’s finding that

Copeland intended to kill Jesse.

        Issue One is overruled.


                                                   6
                RIGHT TO CROSS-EXAMINE AND CONFRONT WITNESSES

        In his second issue, Copeland argues the trial court violated his Sixth Amendment right to

confront and cross-examine Jesse’s mother. Specifically, Copeland complains that the jury

should not have heard an audio recording in which he is told by investigators that Jesse’s mother

revealed to them that Copeland, among other acts, put Jesse in a barrel and hit Jesse with a board.

We disagree.

        When a defendant is given all the relief requested at trial, there is nothing to complain of on

appeal. Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App. 1993). As shown by the following

colloquy between the trial court and defense counsel, the trial court gave Copeland all the relief he

requested:

        [THE COURT:] After the discussion, I’m going to sustain defendant’s objections
        to the statements that are attributable to codefendant . . . Worthy. And so just
        make sure that the – those are not played to the jury.
                And with regard to the disk in evidence, if we cannot subsequently replace
        that with a redacted version, that if the jury needs to hear that, we’ll just bring them
        out into courtroom and go through the same process of playing it again so that they
        don’t have that disk.

        [DEFENSE COUNSEL:] Your Honor, the defense is agreeable to allow the state to
        retrack the disk to fit the court’s ruling after it’s played for the jury.

A few moments after this exchange, the State published a portion of the audio recording to the

jury. 3 Copeland has thus not shown that the trial court failed to sustain his objection and thereby

permitted the jury to hear the statements he challenges on appeal.


3
  Admittedly, the record is unclear whether the jurors heard the complained-of statements when the audio recording
was played for them. This is because the portion of the recording published to the jury was not transcribed by the
court reporter and because the challenged statements were not redacted from the audio recording that is part of the
record on appeal. The above colloquy suggests that the jury did not hear these statements, as does the fact that the
investigator made no mention of the challenged statements during his testimony at trial, either before or after the
recording was published to the jury. As the appellant, Copeland bore the burden to make a record demonstrating that
error occurred in the trial court. Newman v. State, 331 S.W.3d 447, 450 (Tex.Crim.App. 2011). Because the record
does not so demonstrate, Copeland has not met his burden.
                                                         7
       Issue Two is overruled.

                       ADMISSION OF AUTOPSY PHOTOGRAPHS

       In his third and final issue, Copeland asserts that the trial court erred in admitting autopsy

photographs into evidence on the ground that they were more prejudicial than probative.

Copeland contends the photographs, which are approximately two and one-half feet by three and

one-half feet, were designed to inflame the passions of the jury and caused the jury to convict him

strictly based on that emotion. We disagree.

                                      STANDARD OF REVIEW

       The admissibility of a photograph is within the sound discretion of the trial court. Gallo v.

State, 239 S.W.3d 757, 762 (Tex.Crim.App. 2007). A trial court abuses its discretion only when

its decision lies “outside the zone of reasonable disagreement.” Walters v. State, 247 S.W.3d 204,

217 (Tex.Crim.App. 2007).

                                        APPLICABLE LAW

       Photographs of the injuries a defendant has inflicted on a victim are relevant. Gallo, 239

S.W.3d at 762.     Relevant evidence, however, may be excluded if its probative value is

substantially outweighed by undue prejudice. TEX.R.EVID. 403. That said, “Rule 403 favors the

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

probative than prejudicial.”     Gallo, 239 S.W.3d at 762.        To determine whether autopsy

photographs are more prejudicial than probative, a court may consider factors like: (1) the

number of offered photographs; (2) the gruesomeness, size, and detail of the offered photographs;

(3) whether the photographs are black and white or in color; (4) whether the photographs are

close-ups; (5) whether the body depicted is naked or clothed; and (6) the availability of other


                                                 8
means of proof and circumstances unique to each individual case. Id.

                                                    DISCUSSION

         The probative value of the complained-of photographs is not substantially outweighed by

undue prejudice. The photographs were highly probative of the one disputed fact concerning

Jesse’s death—whether Copeland intended to kill Jesse. As was stated earlier, Copeland admitted

to investigators that he beat Jesse and slammed him hard to the floor, but claimed to them, and to

the jury, that he never intended to kill Jesse. The photographs, close-ups of the fatal injuries to

Jesse’s brain discovered during the autopsy, were necessary to show that the internal injuries

suffered by Jesse reflected a different situation. The photographs helped the jury to understand

the extent of the fatal injuries suffered by Jesse. According to the medical examiner, the

hemorrhages on the underside of Jesse’s scalp, on his skull, and on his brain were indicative of

blunt force trauma associated “with a fall from a height [greater than a bed] or with a serious

accident such as an automobile crash . . .,” not with a fall from a bed as Copeland claimed had

occurred. In addition, the medical examiner testified the photographs would assist the jury in

understanding what exactly his internal investigation revealed.

         The photographs, while highly probative, were not unduly prejudicial. Although each

photograph measured approximately two and one-half feet by three and one-half feet, there were

only five of them.4 Further, although the photographs are color close-ups of the fatal injuries to

Jesse’s head and brain, they are very clinical in nature establishing the location and nature of the

hemorrhages to the underside of Jesse’s scalp, his skull, and his brain. The gruesomeness of the


4
  The appellate record does not contain these photographs. While we can order the originals if necessary, we
conclude that it is not necessary to do so in this case because the five challenged photographs are enlargements of five
of the forty-five autopsy photographs admitted for record purposes. See TEX.R.APP.P. 34.6(g)(2)(authorizing
appellate court to direct trial court clerk to send original exhibits).
                                                           9
photographs, if any, is attributable to the subject matter they depict, and the photographs “are no

more gruesome that would be expected in this sort of crime.” Gallo, 239 S.W.3d at 763.

Moreover, when the photographs were admitted into evidence, the jury had already heard

testimony from lay witnesses and medical personnel describing Jesse as “black and blue from head

to toe,” “unconscious,” and “comatose.” In other words, “[t]he [autopsy] photographs in this case

depict what [Copeland] caused and what verbal testimony properly described.” Saldano v. State,

232 S.W.3d 77, 101-02 (Tex.Crim.App. 2007).

       Copeland argues that because the medical examiner acknowledged that the photographs

did not need to be so large to explain his findings, the prejudicial effects of the photographs are

heightened by their size. Copeland is correct that the medical examiner testified, during voir dire

examination, that he “would [not] have to have [] photograph[s] so large” to explain his findings.

However, as was stated earlier, the medical examiner also testified that these photographs would

assist the jury in understanding what exactly his internal investigation revealed. “Displaying []

enlarged photograph[s] while the medical examiner testifie[s] to facts illustrated in the photograph

enable[s] all members of the jury simultaneously to follow the witness’s testimony.” United

States v. Yahweh, 792 F.Supp. 104, 108 (S.D.Fla. 1992)(holding that neither gruesome

photographs nor 30 by 40 inch enlargements were unfairly prejudicial in trial of particularly

heinous murders). Moreover, because of the nature of the injuries— the hemorrhages on the

underside of Jesse’s scalp, on his skull, and on his brain—there was a real danger that smaller

photographs would not accurately reflect the presence of the injuries. Further, although these

photographs magnified the fatal injuries, they by no means distorted the nature of the injuries.

Accordingly, Copeland has not established that the trial court abused its discretion in admitting the


                                                 10
challenged photographs. Issue Three is overruled.

                                           CONCLUSION

       Having overruled all three of Copeland’s issues, we affirm the trial court’s judgment.



July 24, 2013
                                                    YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)




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