Opinion issued April 1, 2014




                                     In The

                               Court of Appeals
                                    For The

                        First District of Texas
                          ————————————
                               NO. 01-12-01173-CR
                          ———————————
                        LYDELL GRANT, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 351st District Court
                          Harris County, Texas
                      Trial Court Case No. 1288802



                        MEMORANDUM OPINION

     A jury convicted appellant, Lydell Grant, of the first-degree felony offense

of murder, assessed punishment at confinement for life, and imposed an $8,000
fine. 1 In his sole issue, appellant contends that the trial court erred in admitting

during the punishment phase three photographs of a wig and two masks found

when the police searched his car.

       We affirm.

                                    Background

       Around 11:45 p.m. on December 10, 2010, at Club Blur, a nightclub located

in the Montrose area of Houston, four bouncers, two patrons of the club, and a

bystander observed the complainant, Aaron Scheerhorn, run up to the door of the

club in a panic. Scheerhorn was followed by a larger man who chased him up to

the club. Scheerhorn screamed for help and opened up his shirt to show that he

had been stabbed. As he tried to get inside the club, the assailant stabbed him

again, chased him into an adjacent parking lot, and stabbed him several more

times. After Scheerhorn collapsed, the assailant made eye contact with one of the

witnesses and calmly left the scene. Scheerhorn later died from his injuries. Six

out of the seven eyewitnesses identified appellant, both in a photo-array and in

court, as the assailant.

       Five days after Scheerhorn’s murder, Houston Police Department (“HPD”)

Officer K. Allen stopped appellant for a traffic violation. After Officer Allen

arrested appellant for driving with a suspended license, he discovered that


1
       See TEX. PENAL CODE ANN. § 19.02(b)(1)–(2) (Vernon 2011).

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appellant was wanted for questioning in connection with Scheerhorn’s murder, so

he transported appellant to the homicide division.           Homicide investigators

subsequently obtained a warrant to search appellant’s car. During the ensuing

search, Officer A. Palatino discovered and photographed a wig, a ski mask, and a

Halloween mask located in a bag contained in the trunk.

      During a break in the guilt-innocence phase of appellant’s trial, and outside

the presence of the jury, the State informed the trial court that it intended to offer

the photographs taken during the search. The trial court stated, “I don’t see any

reason the mask comes in. It doesn’t have anything to do with this case. Right?”

The prosecutor replied that the court’s understanding was correct. Defense counsel

stated that when the State offered the items and photographs into evidence, he

would object on Rule 402 and Rule 403 grounds. The trial court ordered the State

to redact a report that mentioned these items.        The State did not offer the

photographs of the wig and masks for admission during the guilt-innocence phase.

      The jury subsequently found appellant guilty of the offense of murder.

During the punishment phase, the State called Officer Palatino and asked her if she

took the pictures of the wig and two masks. After she responded that she did, the

State offered these three photographs for admission. Defense counsel objected

“under Rules 402 and 403, Texas Rules of Evidence.” The trial court overruled the

objection and admitted the photographs.         Officer Palatino testified that she



                                          3
discovered the items—a wig, a ski mask, and a “skull mask similar to that movie

Scream”—in a bag located in the trunk of appellant’s car.           The State later

questioned HPD Detective E. Cisneros, one of the investigators assigned to the

case, about whether the ski mask and the Halloween mask could be used so “that

someone might conceal their identity from someone being able to see their face

and who they are[.]” Detective Cisneros responded, “Yes.” Defense counsel did

not object to this question.

      During the punishment-phase charge conference, defense counsel requested

that the charge include an instruction informing the jury that the State must prove

extraneous offenses beyond a reasonable doubt. Counsel further clarified, “The

concern is the implications of aggravated robbery would be all those materials in

the trunk, Your Honor.” The trial court included the requested instruction in the

written charge.

      Appellant pleaded true to the allegations in an enhancement paragraph,

which concerned a 1994 conviction for aggravated robbery, and stipulated that he

had five other prior convictions: a 2004 conviction for possession of marijuana, a

2006 conviction for theft, and three 2009 convictions for credit or debit card abuse.

In addition, the State presented evidence that appellant was a member of the 52

Hoover Crips, which was identified as a violent Houston-area gang. Ultimately,




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the jury assessed appellant’s punishment at confinement for life and imposed an

$8,000 fine. This appeal followed.

                              Admission of Evidence

      In his sole issue on appeal, appellant contends that the trial court erroneously

admitted three photographs 2 depicting a wig, a ski mask, and a Halloween mask

discovered during a search of the trunk of his car.

      A.     Standard of Review

      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)). We will not reverse

the trial court’s ruling unless it falls outside the zone of reasonable disagreement.

Id. In applying the abuse of discretion standard, we may not reverse a trial court’s

admissibility decision solely because we disagree with it. Powell v. State, 63


2
      The State raises the question of whether appellant preserved error concerning the
      admission of these photographs. When the State offered these exhibits during the
      punishment phase, defense counsel clearly objected based on Rules 402 and 403.
      The trial court overruled these objections and admitted the photographs. On
      appeal, appellant argues that “[t]he evidence should not have been admitted
      because its probative value was substantially outweighed by the danger of unfair
      prejudice.” We hold that appellant preserved this Rule 403 complaint for
      appellate review. To the extent that appellant argues that the photographs
      improperly depicted an extraneous offense in violation of Rule of Evidence
      404(b), we agree with the State that appellant’s trial objection based on Rules 402
      and 403 did not preserve error with regard to this complaint. See Batiste v. State,
      217 S.W.3d 74, 82 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding that
      trial objection on relevancy grounds did not preserve Rule 404(b) extraneous
      offense complaint for appellate review).

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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).

      B.     Law Governing Admissibility of Photographs

      Code of Criminal Procedure article 37.07 governs the admissibility of

evidence at the punishment phase of a trial. Henderson v. State, 29 S.W.3d 616,

626 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). Specifically, article 37.07,

section 3(a)(1) provides:

      [E]vidence may be offered by the state and the defendant as to any
      matter the court deems relevant to sentencing, including but not
      limited to the prior criminal record of the defendant, his general
      reputation, his character, an opinion regarding his character, the
      circumstances of the offense for which he is being tried, and,
      notwithstanding Rules 404 and 405, Texas Rules of Evidence, any
      other evidence of an extraneous crime or bad act that is shown beyond
      a reasonable doubt by evidence to have been committed by the
      defendant or for which he could be held criminally responsible,
      regardless of whether he has previously been charged with or finally
      convicted of the crime or act.

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (Vernon Supp. 2013). The trial

court has wide discretion in determining the admissibility of evidence presented at

the punishment phase. Lamb v. State, 186 S.W.3d 136, 141 (Tex. App.—Houston

[1st Dist.] 2005, no pet.). “[R]elevance during the punishment phase of a non-

capital trial is determined by what is helpful to the jury.” Erazo v. State, 144

S.W.3d 487, 491 (Tex. Crim. App. 2004) (emphasis in original) (citing Rogers v.



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State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999)); Garcia v. State, 239 S.W.3d

862, 865 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (“Relevance in [the

punishment] context is more a matter of policy than an application of Rule of

Evidence 401; it fundamentally consists of what would be helpful to the jury in

determining the appropriate punishment.”).

      Although the trial court possesses wide latitude in determining the

admissibility of punishment-phase evidence, the evidence must still satisfy Texas

Rule of Evidence 403. Lamb, 186 S.W.3d at 143. Evidence may be excluded

pursuant to Rule 403 if “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.”

TEX. R. EVID. 403; Lamb, 186 S.W.3d at 143; Johnson v. State, 988 S.W.2d 958,

960 (Tex. App.—Beaumont 1999, no pet.) (“The rule requires exclusion of

evidence only when there exists a clear disparity between the degree of prejudice

of the offered evidence and its probative value.”). Thus, relevant evidence that is

otherwise admissible under article 37.07 is inadmissible if it does not satisfy Rule

403. Lamb, 186 S.W.3d at 144. When a party objects under Rule 403, the trial

court must balance the probative value of the evidence against its potentially

prejudicial effect, and the trial court considers, among other factors: (1) the

probative value of the evidence; (2) the potential to impress the jury in some



                                         7
irrational yet indelible way; (3) the time needed to develop the evidence; and

(4) the proponent’s need for the evidence. Id. (citing Montgomery v. State, 810

S.W.2d 372, 389–90 (Tex. Crim. App. 1990)); see also Erazo, 144 S.W.3d at 491–

92 (“If there are elements of a photograph that are genuinely helpful to the jury in

making its decision, the photograph is inadmissible only if the emotional and

prejudicial aspects substantially outweigh the helpful aspects.”).

      Generally, the erroneous admission of evidence is non-constitutional error

subject to a harm analysis under Texas Rule of Appellate Procedure 44.2(b). See

Russell v. State, 155 S.W.3d 176, 181 (Tex. Crim. App. 2005) (holding that

violation of evidentiary rule is non-constitutional error).      We disregard non-

constitutional errors that do not affect the appellant’s substantial rights. TEX. R.

APP. P. 44.2(b); Robinson v. State, 236 S.W.3d 260, 269 (Tex. App.—Houston [1st

Dist.] 2007, pet. ref’d). An error affects a substantial right only when the error had

a substantial and injurious effect or influence on the jury’s verdict. Robinson, 236

S.W.3d at 269 (citing King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)).

The error is harmless if it had only a slight influence on the verdict. Id. In

determining whether the error was harmless, we consider the nature of the

evidence supporting the verdict, the character of the alleged error, and how the

error might be considered in connection with other evidence in the case. Id. (citing

Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003)). We also consider



                                          8
other factors, including whether the State emphasized the error and whether the

erroneously admitted evidence was cumulative. Id. (quoting Motilla v. State, 78

S.W.3d 352, 357 (Tex. Crim. App. 2002)). When conducting a harm analysis, we

consider the entirety of the record, including evidence of the defendant’s guilt, as

well as the jury instructions and closing arguments. Motilla, 78 S.W.3d at 355–56,

358, 360.

      C.     Harm Analysis

      Here, even if the trial court improperly admitted the three photographs

depicting a wig, a ski mask, and a Halloween mask found during the search of the

trunk of appellant’s car, we conclude that such error was harmless. The evidence

of appellant’s guilt was substantial. Six eyewitnesses unequivocally identified

appellant both in a photo-array and in court as the assailant who stabbed

Scheerhorn. The witnesses testified that appellant had already stabbed Scheerhorn

at least once before he ran up to the club seeking help, that appellant chased him to

the entrance of the club, that appellant was physically larger than Scheerhorn, and

that appellant continued stabbing Scheerhorn several more times after Scheerhorn

informed the witnesses that he was injured. One of the eyewitnesses testified that,

after Scheerhorn collapsed to the ground and appellant ceased stabbing him,

appellant made eye contact with the witness and calmly left the scene. This

witness characterized appellant’s demeanor as “emotionless.” Thus, the evidence



                                         9
reflects that appellant inflicted numerous severe injuries on Scheerhorn and

displayed no emotion or remorse as Scheerhorn died in the parking lot.

      Appellant pleaded true to the allegations in the enhancement paragraph that

he had a prior conviction for aggravated robbery, and he stipulated that he had had

five other convictions since 2004. The State also presented evidence that appellant

was a member of the 52 Hoover Crips, “a violent gang here in the Houston area.”

See Garcia, 239 S.W.3d at 866–67 (“As a general matter, testimony regarding a

defendant’s affiliation with a gang may be relevant and admissible at the

punishment phase to show the defendant’s character.”).

      Although the three challenged photographs were not cumulative of any other

evidence, little time was needed to develop this evidence, and the State did not

emphasize this evidence during its closing argument.           This evidence was

mentioned three times during the punishment phase: Officer Palatino briefly

described the contents of the photographs after the trial court admitted them into

evidence; Detective Cisneros testified that the ski mask and the Halloween mask

could be used as a means of concealing appellant’s identity; and defense counsel

mentioned these photographs during his closing argument. Specifically, defense

counsel argued that “none of those items are linked to criminal activity” because if

there was any indication that they had actually been used in an extraneous offense

by appellant, the State certainly would have informed the jury of that fact. He



                                        10
urged the jury to put those items aside “because any kind of bad behavior has not

been proven to be associated with those items.” Furthermore, the written charge

included an instruction informing the jury that it was to consider extraneous

offenses and bad acts only if it determined that the State had proven beyond a

reasonable doubt that appellant committed such extraneous offenses and bad acts.

      The jury assessed appellant’s punishment at the statutory maximum—

confinement for life—but the evidence reflects that appellant stabbed Scheerhorn

multiple times, ignoring his cries for help, and displayed no emotion during or after

commission of the offense. Appellant also had multiple past convictions and was a

member of a violent street gang.         We therefore conclude that if the three

photographs depicting the wig and two masks found in appellant’s trunk had any

effect on the jury’s punishment decision, it was only a slight influence. See

Robinson, 236 S.W.3d at 269.         We hold that any error in admitting these

photographs did not affect appellant’s substantial rights and, therefore, the error is

harmless.

      We overrule appellant’s sole issue. 3



3
      Appellant filed a pro se supplemental brief raising one additional issue.
      “Appellants are not allowed to have ‘hybrid representation’ on appeal, in which an
      appellant and an attorney can present independent points to an appellate court.”
      Ex parte Taylor, 36 S.W.3d 883, 887 (Tex. Crim. App. 2001); Patrick v. State,
      906 S.W.2d 481, 498 (Tex. Crim. App. 1995) (“[A]ppellant is not entitled to
      hybrid representation. Hence, nothing is presented for review.”).

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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Bland, and Brown.

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




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