                     COURT OF APPEALS
                     SECOND DISTRICT OF TEXAS
                          FORT WORTH

                        NO. 02-12-00628-CR


BRITTANY OLIPHANT-ALSTON                         APPELLANT
A/K/A BRITTANY NICHOLE
OLIPHANT-ALSTON A/K/A
BRITTANY ALSTON

                                 V.

THE STATE OF TEXAS                                    STATE


                              ----------

       FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                              ----------

                               AND

                        NO. 02-12-00642-CR


JUSTIN LEE ALSTON                                APPELLANT

                                 V.

THE STATE OF TEXAS                                    STATE


                              ----------
            FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                                      ----------

                         MEMORANDUM OPINION1

                                      ----------

                                 I. INTRODUCTION

       Appellants Brittany Oliphant-Alston and Justin Lee Alston were tried

together for causing serious bodily injury to a child. A jury convicted appellants

and assessed each of their punishments at 60 years’ confinement. The trial

court sentenced appellants accordingly. In two issues, each appellant argues

that the trial court abused its discretion by (1) admitting photographs over their

rule 403 objections and (2) allowing a witness to testify in violation of the Rule. 2

Because appellants were tried together and raise the same issues—albeit in two

separate briefs—on appeal, we will address their issues in one opinion.

                            II. FACTUAL BACKGROUND

       Riley Alston is appellants’ son. When he was just over eight months old,

he was hospitalized with severe dehydration and malnutrition. Although the long-

term effects of his malnourishment are unknown, Riley has made a full nutritional

recovery.




       1
       See Tex. R. App. P. 47.4.
       2
       See Tex. Code Crim. Proc. Ann. art. 36.05 (West 2007); Tex. R. Evid.
614.


                                          2
                        A. Riley’s Early Development

       Riley weighed seven pounds, nine ounces at birth.       When Dr. Patricia

Jackson performed Riley’s initial checkup a month later, he weighed nine

pounds, eleven ounces.     This two-pound gain indicated normal development.

Dr. Jackson examined Riley again for his four-month checkup. Riley weighed

fifteen pounds, eleven ounces. He was meeting all the milestones appropriate

for his age, including length and weight markers. Riley was not brought in for his

six-month checkup, and Dr. Jackson did not see him again while he was in

appellants’ care.

                             B. Appellants’ Party

       One night when Riley was just over eight months old, appellants had a

number of guests over to their house for a party. Megon Rutledge was one of

the guests. During the party, Rutledge heard Riley whimpering softly in a back

bedroom. Riley was in a playpen that was covered with ―brown nasty stuff.‖

Rutledge took him into the living room to clean him up. When she removed

Riley’s onesie, she saw that his skin was extremely thin and his bones were

visible.   Rutledge knew something was wrong with Riley and asked another

guest, Caleb Fuller, for help. At Rutledge’s insistence, Caleb called his father,

who worked as a paramedic.

       Paul Fuller arrived at appellants’ house and saw Riley. He thought Riley

needed immediate medical attention. He urged Justin, Riley’s father, to take


                                        3
Riley to the hospital that night. Justin refused but agreed to let Paul take Riley.

Paul took Riley to Lake Granbury Medical Center.

                           C. Riley’s Hospitalization

      At Granbury Medical, Dr. Kerri Sistrunk treated Riley.        Riley weighed

around eight pounds, which was approximately half of what he weighed at his

last checkup, five months earlier.    Dr. Sistrunk diagnosed Riley with severe

dehydration and malnutrition. She used an IV to give Riley a saline solution to

help with his dehydration. After three days at Granbury Medical, Riley was stable

enough to be transported and was moved to Cook Children’s Medical Center in

Fort Worth.

      Riley stayed at Cook Children’s for ten days, and Dr. Jamye Coffman

treated him there. Riley was then released into the care of foster parents.

                              D. Riley’s Recovery

      Dr. Coffman saw Riley five times over the next four months for checkups.

Riley improved continuously after his discharge—the result of being fed

consistently. Dr. Coffman testified that the consequences of malnourishment on

Riley’s development are still unknown but that he has made a full nutritional

recovery.

                           III. PHOTOGRAPHS OF RILEY

      In their first issues, both appellants argue that the trial court abused its

discretion by admitting into evidence, over their rule 403 objections, thirty-three




                                        4
photographs of Riley. Appellants contend that the photographs were unfairly

prejudicial and needlessly cumulative.

         A. Admissibility of Photographs and Standard of Review

      Rule 403 provides: ―Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger or 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.

―Probative value‖ refers to how strongly a piece of evidence serves to make more

or less probable a fact of consequence, coupled with the proponent’s need for

the item of evidence. Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim.

App. 2006). The rule favors the admission of relevant evidence and carries a

presumption that relevant evidence will be more probative than prejudicial.

Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App.), cert. denied, 549 U.S.

1056 (2006).   Among the many factors a court may consider in determining

whether the probative value of photographs is substantially outweighed by the

danger of unfair prejudice are the number of exhibits offered, their

gruesomeness, their detail, their size, whether they are in color or black-and-

white, whether they are close up, whether other means of proof are available,

and other circumstances unique to the individual case. Santellan v. State, 939

S.W.2d 155, 172 (Tex. Crim. App. 1997); Long v. State, 823 S.W.2d 259, 272

(Tex. Crim. App. 1991), cert. denied, 505 U.S. 1224 (1992).




                                         5
      The admissibility of photographs over a rule 403 objection is within the

sound discretion of the trial court. Sonnier v. State, 913 S.W.2d 511, 518 (Tex.

Crim. App. 1995). We will reverse the trial court only upon a clear abuse of

discretion. Rachal v. State, 917 S.W.2d 799, 808 (Tex. Crim. App.), cert. denied,

519 U.S. 1043 (1996); Montgomery v. State, 810 S.W.2d 372, 391–92 (Tex.

Crim. App. 1991) (op. on reh’g). A trial court does not abuse its discretion so

long as its decision to admit or exclude evidence is, in view of all relevant facts,

within the zone of reasonable disagreement.         Rachal, 917 S.W.2d at 808;

Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992), cert. denied, 507

U.S. 975 (1993); Montgomery, 810 S.W.2d at 391–92.

      B. The Trial Court Did Not Abuse Its Discretion by Admitting the
                                 Photographs

      Appellants were both charged with knowingly causing serious bodily injury

to a child.   See Tex. Penal Code Ann. § 22.04(a)(1) (West Supp. 2013).

Appellants pleaded not guilty to the charges.

  1. The Photographs Were Probative of Whether Appellants Acted Knowingly

      To prove that appellants acted knowingly, the State had to show that

appellants were aware that their conduct was reasonably certain to cause injury

to Riley. See id. § 6.03(b) (West 2011). To dispute that they acted knowingly,

appellants argued that their actions were merely reckless3—a result of their lack

      3
        Under the child-injury statute, acting with a reckless mental state carries
with it a less severe penalty than acting with a knowing mental state. Id.
§ 22.04(e) (West Supp. 2013).


                                         6
of intelligence and maturity. To counter this defensive theory, the State utilized

photographs taken of Riley during his hospitalization.

      Several witnesses for the State employed the photographs to show the

conspicuous nature of Riley’s injuries.         Dr. Sistrunk, who treated Riley at

Granbury Medical, used photographs of Riley’s undeveloped body and wrinkled

skin to show his extreme dehydration. Dr. Coffman, who treated Riley at Cook

Children’s, used similar photographs to demonstrate how Riley was ―wasting‖—

meaning he had no fat or muscles.4 Witnesses also testified that Riley showed

signs of being left on his back for long periods. During the testimonies of Dr.

Sistrunk, Dr. Coffman, and Paul Fuller, the jury saw photographs depicting

Riley’s bedsores, red buttocks, and the flatness of the back of his head.

      The State offered additional evidence of the conspicuous nature of Riley’s

condition. Paul testified that when he saw Riley at appellants’ home, he thought

Riley’s condition was life threatening.       Rutledge and Caleb Fuller, who were

minors at the time of appellants’ party, both testified that when they saw Riley,

they knew he needed immediate medical attention.            A photograph of Riley

accompanied each of their testimonies, so that the witnesses could better explain

Riley’s condition when they found him.



      4
        On voir dire, Dr. Coffman even explained: ―I don’t think words adequately
express the actual depiction that—what we—what I actually saw. I don’t have
the words to actually describe what I saw with Riley. . . . So I think the pictures
better describe.‖


                                          7
      Thus, the photographs of Riley were strong evidence of the nature of

Riley’s injuries and were therefore probative of appellants’ awareness of Riley’s

injuries. See Gigliobianco, 210 S.W.3d at 641.

   2. The Photographs Were Probative of Whether Appellants Caused Riley’s
                                   Injuries

      In addition to proving that appellants acted knowingly, the State had to

prove that appellants caused Riley’s injuries.       See Tex. Penal Code Ann.

§ 22.04(a)(1). The penal code provides that ―[a] person is criminally responsible

if the result would not have occurred but for his conduct, operating either alone or

concurrently with another cause, unless the concurrent cause was clearly

sufficient to produce the result and the conduct of the actor clearly insufficient.‖

Id. § 6.04(a) (West 2011). At trial, appellants argued that the actual cause of

Riley’s injuries was a preexisting medical condition that prevented him from

receiving proper nutrients.

      To prove that appellants’ actions, rather than a preexisting condition,

caused Riley’s injuries, Dr. Coffman testified to her treatment of Riley. She said

that the only treatment progressing Riley’s recovery was regular feeding. To

better demonstrate Riley’s recovery, she used pictures taken of him during his

post-hospitalization checkups; the pictures were taken approximately three days,

three weeks, four weeks, two months, and four months after Riley’s initial

hospitalization.   Thus, the photographs were probative to negate appellants’




                                         8
theory that Riley had a medical condition that prevented him from gaining weight.

See Gigliobianco, 210 S.W.3d at 641.

 3. The Probative Value of the Photographs Is Not Substantially Outweighed by
        Unfair Prejudice or Needless Presentation of Cumulative Evidence

      Appellants discount the probative value of the photographs by arguing that

the State had other compelling or undisputed evidence to show Riley’s depleted

condition and subsequent recovery.       But the court of criminal appeals has

rejected the premise that visual evidence accompanying oral testimony is either

cumulative of oral testimony or of insignificant probative value. See Chamberlain

v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999), cert. denied, 528 U.S.

1082 (2000). To the contrary, the court has recognized that visual evidence

accompanying testimony is most persuasive and often gives the factfinder a point

of comparison against which to test the credibility of a witness and the validity of

his conclusions. See id.

      Appellants further argue that the probative nature of the photographs is

substantially outweighed in a rule 403 balancing test because the photographs

were unfairly prejudicial and needlessly cumulative. We will address each of

these arguments in turn.

       ―Unfair prejudice‖ refers to a tendency to suggest a decision on an

improper basis, commonly, though not necessarily, an emotional one.

Gigliobianco, 210 S.W.3d at 641. While many of the photographs are unsettling,

they show no more than the serious injuries that appellants were charged with



                                         9
causing. See Sonnier, 913 S.W.2d at 519 (―[W]hen the power of the visible

evidence emanates from nothing more than what the defendant has himself done

we cannot hold that the trial court has abused its discretion merely because it

admitted the evidence.‖); cf. Narvaiz, 840 S.W.2d at 429–30; Staley v. State, 888

S.W.2d 45, 51 (Tex. App.—Tyler 1994, no pet.) (―It is difficult to conceive, after

extensive witness testimony concerning the nature and extent of [the victim’s]

injuries, how a video tape of [the victim] during his recovery period would

heighten the passion of the jury to the detriment of Appellant.‖).            The

photographs are all three inches by five inches and in color.5

      In arguing that the photographs were needlessly cumulative, appellants

claim that admitting thirty-three photographs was excessive, as many of the

photographs are duplicative. But many of the photographs show different parts

of Riley’s body, revealing the various injuries he suffered. Other photographs

show Riley’s recovery at four intervals over a fifteen-week period.        These

photographs also show different parts of Riley’s body, detailing his improvement

throughout the weeks. We cannot say that the photographs were needlessly

cumulative. See Gallo v. State, 239 S.W.3d 757, 763 (Tex. Crim. App. 2007)


      5
       The photographs were projected for viewing by the jury, but the record
does not indicate details on the projection of the images, such as their size or
where in the courtroom they were projected. Without more, we cannot say that
the projections made the photographs unfairly prejudicial. See Salazar v. State,
38 S.W.3d 141, 152–53 (Tex. Crim. App.), cert. denied, 534 U.S. 855 (2001);
Bakre v. State, No. 05-97-00991-CR, 1999 WL 652501, at *2 (Tex. App.—Dallas
Aug. 27, 1999, no pet.) (not designated for publication).


                                        10
(affirming admission of twenty-three autopsy photographs taken from various

angles and showing victim’s different injuries), cert. denied, 553 U.S. 1080

(2008); Williams v. State, 930 S.W.2d 898, 901–02 (Tex. App.—Houston [1st

Dist.] 1996, pet. ref’d) (affirming admission of autopsy photograph because it was

the only one to show the injuries to victim’s groin and buttocks); cf. Staley, 888

S.W.2d at 51.

      Because the photographs were probative of appellants’ guilt, and their

probative value was not outweighed by any unfair prejudice or needless

presentation of cumulative evidence, we hold that the trial court did not abuse its

discretion by admitting the photographs.      See Rachal, 917 S.W.2d at 808;

Narvaiz, 840 S.W.2d at 429; Montgomery, 810 S.W.2d at 391–92. We overrule

each of appellant’s first issue.

                         IV. CAROL MAHAGAN’S TESTIMONY

      In their second issues, both appellants contend that the trial court erred by

allowing a witness to testify in violation of the Rule. See Tex. Code Crim. Proc.

Ann. arts. 36.05, 36.06 (West 2007); Tex. R. Evid. 614.

                      A. The Rule and Standard of Review

      The Rule provides for the exclusion of witnesses from the courtroom

during trial. Tex. Code Crim. Proc. Ann. art. 36.05; Tex. R. Evid. 614. The

purpose of the Rule is to prevent corroboration, contradiction, and the influencing

of witnesses. Minor v. State, 91 S.W.3d 824, 829 (Tex. App.—Fort Worth 2002,

pet. ref’d). The trial court is obligated to exclude witnesses from the courtroom


                                        11
during another witness’s testimony, but the court’s decision to allow testimony

from a witness who has violated the Rule is discretionary. Id. (citing Bell v. State,

938 S.W.2d 35, 50 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 827 (1997)).

      A trial court abuses its discretion if two conditions are met: (1) the witness

had personal knowledge of the offense and either party could have anticipated

calling the witness to the stand; and (2) the witness actually heard testimony from

another witness and then contradicted or corroborated that witness’s testimony.

Bell, 938 S.W.2d at 50 (citing Webb v. State, 766 S.W.2d 236, 240 (Tex. Crim.

App. 1989)); Guerra v. State, 771 S.W.2d 453, 474–75 (Tex. Crim. App. 1988),

cert. denied, 492 U.S. 925 (1989).

      If the trial court abused its discretion, we must determine whether the error

requires reversal. See Tex. R. App. P. 44.2. Appellants complain about the

violation of an evidentiary rule, so any error is non-constitutional and will be

disregarded if it did not affect appellants’ substantial rights. See Tex. R. App. P.

44.2(b); Russell v. State, 155 S.W.3d 176, 181 (Tex. Crim. App. 2005).              A

substantial right is affected when the error had a substantial and injurious effect

or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271

(Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66

S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a substantial

right if we have ―fair assurance that the error did not influence the jury, or had but

a slight effect.‖ Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001);

Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).


                                         12
      In making this determination, we review the record as a whole, including

any testimony or physical evidence admitted for the jury’s consideration, the

nature of the evidence, and the character of the alleged error and how it might be

considered in connection with other evidence in the case. Motilla v. State, 78

S.W.3d 352, 355 (Tex. Crim. App. 2002).          We may also consider the jury

instructions, the State’s theory and any defensive theories, whether the State

emphasized the error, closing arguments, and even voir dire, if applicable. Id. at

355–56.

 B. Even Assuming that the Trial Court Abused Its Discretion by Allowing
    Mahagan to Testify, Appellants’ Substantial Rights Were Not Affected

      The trial court invoked the Rule at the beginning of trial and admonished all

testifying witnesses that they could not be present during the testimony of other

witnesses.    During the punishment phase, defense counsel called Justin’s

grandfather, Danny Trotter, to testify. Trotter testified that after Child Protective

Services (CPS) got involved in Riley’s case, Trotter attended a family-group

conference to discuss Riley’s long-term welfare with other interested parties. On

cross-examination, Trotter denied that during the conference, he had commented

that CPS’s photographs of Riley appeared doctored to make Riley’s condition

look worse.

      In response, the State called as a rebuttal witness at the punishment

phase Carol Mahagan, who was Riley’s Court Appointed Special Advocate

(CASA). Mahagan was not among the witnesses admonished at the beginning



                                         13
of trial, and she remained in the courtroom throughout the guilt-innocence phase.

She was not in the courtroom during the punishment phase.

      As Riley’s CASA, Mahagan attended the same conference that Trotter

attended. She testified that at the conference, Trotter said he did not want to see

the ―fabricated‖ photographs of Riley. The State also asked Mahagan about the

photographs. She described her reaction as ―disbelief‖ and complete shock at

the severity of Riley’s malnutrition.

      Because Mahagan attended the guilt-innocence phase, she heard

witnesses, such as Megon Rutledge, Paul Fuller, and Dr. Sistrunk, testify to their

reactions to first seeing Riley. Appellants contend that, in explaining her own

reaction to seeing photographs of Riley at the conference, Mahagan was

improperly allowed to simply echo the previous testimony she had heard.

      Assuming without deciding that the trial court abused its discretion by

allowing Mahagan to testify in violation of the Rule, appellants’ substantial rights

were not affected.     See Tex. R. App. P. 44.2(b).      In assessing appellants’

punishments, the jury had a plethora of information concerning the photographs

that were the subject of Mahagan’s testimony. The photographs themselves

were admitted into evidence.        Additionally, when Mahagan was out of the

courtroom during the punishment phase, two witnesses testified about their

reactions to the photographs of Riley. Jennifer Ferriera, Justin’s mother, testified

that she ―cried like a baby‖ when she saw the photographs. And Danny Trotter,

whose testimony Mahagan rebutted, said that upon seeing the photographs he


                                        14
was devastated and that it still hurt to think about seeing Riley in that condition.

Moreover, the State did not mention Mahagan’s testimony during its closing

summation or otherwise emphasize the testimony.

      We conclude that, in the context of all the evidence admitted during the

punishment phase of trial, even if the trial court abused its discretion by admitting

Mahagan’s testimony in violation of the Rule, her testimony did not have a

substantial or injurious effect on the jury’s assessment of punishment and did not

affect appellants’ substantial rights. See King, 953 S.W.2d at 271. Thus, we

disregard any error and overrule both appellants’ second issues. See Tex. R.

App. P. 44.2(b).

                                     V. CONCLUSION

      Having overruled each appellant’s two issues, we affirm the trial court’s

judgments.



                                                    SUE WALKER
                                                    JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 27, 2013




                                         15
