                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00436-CR


DAVID LEE MALONE                                                   APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


                                    ----------

          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                                    ----------

                        MEMORANDUM OPINION1
                                    ----------

                                  Introduction

      Appellant David Lee Malone appeals his conviction for murder. We affirm.

      The record shows that Appellant intervened in a fight between his sister

and his father, George Malone, and that he repeatedly kicked and punched his

father in the head, causing brain injury to which the eighty-two-year-old man

succumbed after a week and a half in the hospital. A jury found Appellant guilty

      1
      See Tex. R. App. P. 47.4.
of murder and assessed his punishment at ninety-nine years’ confinement; the

trial court sentenced him accordingly. Appellant brings six issues on appeal.

                          Protective Order Evidence

      In his first issue, Appellant contends that the trial court abused its

discretion by admitting evidence that George had sought a protective order

against him because the evidence was ―tantamount‖ to extraneous offenses.

      Appellant’s objections in the trial court, however, raised only hearsay and

relevancy grounds. An objection preserves only the specific ground cited. Tex.

R. App. P. 33.1(a)(1)(A); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App.

1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999); Bell v. State, 938

S.W.2d 35, 54 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 827 (1997).

Appellant’s hearsay objection obviously does not comport with his claim that the

trial court erred by admitting evidence of extraneous offenses.        See, e.g.,

Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App. 1993), cert. denied,

510 U.S. 1215 (1994) (holding that hearsay and relevancy trial objections did not

preserve a rule 404(b) extraneous offense claim on appeal).

      Further, the court of criminal appeals has made it clear that relevancy

objections do not preserve extraneous offense claims for review.       Medina v.

State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1102

(2000); see Starn v. State, No. 02-07-0039-CR, 2008 WL 902792, at *2 n.13

(Tex. App.—Fort Worth Apr. 3, 2008, no pet.) (mem. op., not designated for

publication); Bradshaw v. State, No. 02-06-00194-CR, 2006 WL 3334326, at *1


                                        2
(Tex. App.—Fort Worth Nov. 16, 2006, no pet.) (mem. op., not designated for

publication); Ashford v. State, No. 02-04-00594-CR, 2006 WL 908754, at *6 (Tex.

App.—Fort Worth Apr. 6, 2006, pet. ref’d) (mem. op., not designated for

publication).

      Article 38.36(a) of the code of criminal procedure provides that

      [i]n all prosecutions for murder, the state or the defendant shall be
      permitted to offer testimony as to all relevant facts and
      circumstances surrounding the killing and the previous relationship
      existing between the accused and the deceased, together with all
      relevant facts and circumstances going to show the condition of the
      mind of the accused at the time of the offense.

Tex. Code Crim. Proc. Ann. art. 38.36(a) (West 2005).2 As the court of criminal

appeals acknowledged in Garcia v. State, ―The nature of the relationship—such

as whether the victim and the accused were friends, were co-workers, were

married, estranged, separated, or divorcing—is clearly admissible under this

Article.‖ 201 S.W.3d 695, 702 (Tex. Crim. App. 2006), cert. denied, 549 U.S.

1224 (2007).

      To the extent that Appellant argues the evidence should have been

excluded on relevancy grounds, we hold that it was within the trial court’s

discretion to conclude that evidence that George had sought a protective order

against the defendant on trial for George’s murder was relevant to a number of


      2
        Evidence that is otherwise admissible under this article is still subject to
the limitations provided by rule of evidence 404(b). We do not address whether
there was a rule 404(b) violation in this case because, as indicated above,
Appellant did not preserve that issue for review.


                                         3
material issues in the case—including the facts and circumstances surrounding

the killing, the prior relationship between George and the defendant, the latter’s

state of mind, and the identity of the killer.3 Accordingly, we overrule Appellant’s

first issue.

                              Confrontation Clause

       In his second issue, Appellant claims that the trial court erroneously

admitted testimonial hearsay in violation of the Confrontation Clause when it

allowed an emergency medical technician (EMT) who treated George at the

scene to testify that when she asked George about one of his injuries, he replied,

―He kicked me.‖ Alternatively, Appellant argues that if this testimony did not

violate his rights under the Confrontation Clause, the trial court abused its

discretion by admitting it because it was inadmissible hearsay.

       Although the State addressed Appellant’s Sixth Amendment claim at trial,

in its brief it addresses only the hearsay argument, countering it by citing the

medical diagnosis exception to the hearsay rule found in rule 804(4).4 We agree

with the State that this exception applies to George’s response to the EMT’s

question about how he became injured. See Bautista v. State, 189 S.W.3d 365,

       3
      Appellant took the stand in his own defense and testified that his sister
caused his father’s fatal injuries, not he.
       4
        The rule provides an exception from the hearsay rule for ―[s]tatements
made for purposes of medical diagnosis or treatment and describing medical
history, or past or present symptoms, pain, or sensations, or the inception or
general character of the cause or external source thereof insofar as reasonably
pertinent to diagnosis or treatment.‖ Tex. R. Evid. 803(4).


                                         4
368 (Tex. App.—Fort Worth 2006, pet. ref’d); Beheler v. State, 3 S.W.3d 182,

188 (Tex. App.—Fort Worth 1999, pet. ref’d). But this exception to the hearsay

rule does not resolve the constitutional issue. See De La Paz v. State, 273

S.W.3d 671, 676, 680 (Tex. Crim. App. 2008).

      The Confrontation Clause of the Sixth Amendment to the United States

Constitution, applicable to the states through the Fourteenth Amendment,

provides that ―[i]n all criminal prosecutions, the accused shall enjoy the right . . .

to be confronted with the witnesses against him[.]‖        U.S. Const. amend. VI;

Pointer v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 1069 (1965). In accordance

with this constitutional right, out-of-court statements offered against the accused

that are ―testimonial‖ in nature are objectionable unless the prosecution can show

that the out-of-court declarant is presently unavailable to testify in court and the

accused had a prior opportunity to cross-examine him. Crawford v. Washington,

541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004); Langham v. State, 305 S.W.3d

568, 575–76 (Tex. Crim. App. 2010); Wall v. State, 184 S.W.3d 730, 734–35

(Tex. Crim. App. 2006). The United States Supreme Court has yet to define the

outer boundaries of a ―testimonial‖ out-of-court statement, but it has identified

three kinds of statements that could be regarded as ―testimonial.‖ Langham, 305

S.W.3d at 576; Wall, 184 S.W.3d at 735. They are ex parte in-court testimony or

its functional equivalent—that is, materials such as affidavits, custodial

examinations, prior testimony that the accused was unable to cross-examine, or

similar pretrial statements that declarants would reasonably expect to be used


                                          5
prosecutorially; extrajudicial statements contained in formalized testimonial

materials, such as affidavits, depositions, prior testimony, or confessions; and

statements that were made under circumstances which would lead an objective

witness reasonably to believe that the statement would be available for use at a

later trial. Melendez-Diaz v. Massachusetts, ___ U.S.___, 129 S. Ct. 2527, 2531

(2009) (quoting Crawford, 541 U.S. at 51–52, 124 S. Ct. at 1364); Langham, 305

S.W.3d at 576; Wall, 184 S.W.3d at 735–36.

      With respect to this last category of out-of-court statements, and in the

particular context of statements made in response to police inquiries, in Davis v.

Washington the Supreme Court elaborated that such a statement is ―testimonial‖

if the circumstances, viewed objectively, show that it was not made ―to enable

police assistance to meet an ongoing emergency‖ and ―the primary purpose of

the interrogation is to establish or prove past events potentially relevant to later

criminal prosecution.‖ 547 U.S. 813, 822, 126 S. Ct. 2266, 2273–74 (2006).

      The court of criminal appeals has said that whether a particular out-of-

court statement is testimonial is ―a question of law.‖ Langham, 305 S.W.3d at

576; De La Paz, 273 S.W.3d at 680.           Although we defer to the trial court’s

resolution of credibility issues and historical fact, we review de novo the ultimate

constitutional question of whether the facts as determined by the trial court

establish that an out-of-court statement is testimonial. Langham, 305 S.W.3d at

576; Wall, 184 S.W.3d at 742. In making that judgment, we look to determine

whether ―the surrounding circumstances objectively indicate that the primary


                                         6
purpose of the interview or interrogation is to establish or prove past events

potentially relevant to later criminal prosecution.‖ Langham, 305 S.W.3d at 576;

De La Paz, 273 S.W.3d at 680.

      Applying these principles to George’s response to the EMT’s on-the-scene

question about the origin of his injuries, we conclude that the statement, ―He

kicked me‖ was not testimonial for Confrontation Clause purposes. The primary

purpose behind this statement was not to provide testimony or develop facts for

later litigation, but to provide information to medical personnel who were treating

George’s emergent medical needs on the scene5. Viewed objectively, George’s

statement to the EMT was made to enable assistance to meet an ongoing

emergency and not to establish or to prove past events potentially relevant to

later criminal prosecution. See Davis, 547 U.S. 813 at 822, 126 S. Ct. at 2273–

74; see also Vinson v. State, 252 S.W.3d 336, 339–41 (Tex. Crim. App. 2008)

(recognizing that statements made during an emergency are nontestimonial

because they are not made primarily to develop facts for later litigation but to

decide how to appropriately respond to the emergency). Therefore, because the

statement was nontestimonial in nature and did not affect Appellant’s rights

under the Confrontation Clause, the trial court did not err by admitting it in

evidence. Accordingly, we overrule Appellant’s second issue.

      5
       The court of criminal appeals has held that in this context, ―primary‖
means ―the purpose that is first among all competing purposes in rank or
importance.‖ See Langham, 305 S.W.3d at 579 (internal quotation marks
omitted).


                                        7
                              Autopsy Photograph

      In his third issue, Appellant contends that the trial court abused its

discretion by admitting an autopsy photograph.       Specifically, he claims that

State’s Exhibit 57, a photograph depicting George’s brain after it was removed

from his body, was unfairly prejudicial and therefore should have been excluded

under rule of evidence 403.

      Rule 403 provides: ―Although relevant, evidence may be excluded 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; see

Gigliobianco v. State, 210 S.W.3d 637, 640 (Tex. Crim. App. 2006). Rule 403

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, 127 S. Ct. 664 (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 the body depicted is clothed or naked, the availability of other means

of proof, 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).          The


                                        8
admissibility of photographs over an objection is within the sound discretion of

the trial court. Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995).

Autopsy photographs are generally admissible, unless they depict mutilation of

the victim caused by the autopsy itself. Salazar v. State, 38 S.W.3d 141, 151

(Tex. Crim. App.), cert. denied, 534 U.S. 855 (2001); Santellan, 939 S.W.2d at

172. The removal of internal body parts to portray the extent of injury to the body

part itself is not considered mutilation caused by the autopsy because there is no

danger that the jury would mistakenly attribute the removal of body parts to the

defendant. Salazar, 38 S.W.3d at 151–52.

      Dr. Shiping Bao, the medical examiner who performed the autopsy,

testified that the photograph of George’s brain would help him explain the injury

that caused George’s death.      He testified that the photograph showed fatal

hemorrhaging on the left occipital or rear lobe of the brain where blunt force

trauma had caused it to strike the inside of the skull and that the resulting

swelling had shifted the brain off its midline position. Thus, the photograph had

probative value because it showed the extent of George’s injury. Further, it was

probative because it helped the jury understand how blunt force trauma—which

other evidence showed came in the form of Appellant’s having kicked George in

the head—caused George’s death.

      Appellant discounts the probative value of the photograph by arguing that

Dr. Bao merely used it to pinpoint the location of the injury, to which he and

another witness, Dr. William Witham, had already testified.      But the court of


                                        9
criminal appeals has rejected the premise that visual evidence accompanying

oral testimony is either cumulative of oral testimony or of insignificant probative

value. 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

fact finder a point of comparison against which to test the credibility of a witness

and the validity of his conclusions. Id.

      Still, Appellant argues that whatever probative value the photograph has is

minimal, at best, and that in any event, its probative value is substantially

outweighed by the danger of unfair prejudice. We disagree.

      Although the photo is graphic—it shows George’s brain separated from the

rest of his body—this factor alone does not require exclusion. See Salazar, 38

S.W.3d at 151, 153 (affirming admission of color slides showing brain removed

from cranial cavity, victim’s lung removed from body, and victim’s open and

dissected heart removed from body); Legate v. State, 52 S.W.3d 797, 806, 807

(Tex. App.—San Antonio 2001, pet. ref’d) (affirming admission of color photos

depicting victim’s heart removed from body).

      Moreover, the medical examiner used the photograph to explain to the jury

the fatal injury George sustained. Even photographs depicting ―mutilation‖ by the

medical examiner may still be admissible, and therefore excepted from the

general prohibition, when the resulting picture (such as a photo of an organ that

has been removed from the body) shows bruising or other damage that is


                                           10
attributable to the defendant’s actions, but was not visible externally, thereby

making the photograph highly relevant to the manner of death. Ripkowski v.

State, 61 S.W.3d 378, 392–93 (Tex. Crim. App. 2001), cert. denied, 539 U.S. 916

(2003); see also Salazar, 38 S.W.3d at 150–53.

      Because the photograph at issue has probative value and is not

unnecessarily gruesome, we hold that the danger of unfair prejudice does not

outweigh its probative value. Thus, the trial court did not abuse its discretion in

admitting it in evidence. Accordingly, we overrule Appellant’s third issue.

                           Lesser-Included Offenses

      In his fourth issue, Appellant contends that the trial court erred by failing to

include lesser-included-offense instructions on criminally negligent homicide and

aggravated assault in the charge. At the charge conference, however, neither

side proposed any special instructions or requested lesser-included-offense

instructions, and the only objection Appellant raised was that the charge allowed

for the jury to separate their votes on three paragraphs and therefore created the

risk of a nonunanimous verdict.

      The trial court need not submit a lesser-included instruction sua sponte if

neither side requests one. Delgado v. State, 235 S.W.3d 244, 249–50 (Tex.

Crim. App. 2007); Mashburn v. State, 272 S.W.3d 1, 15 (Tex. App.—Fort Worth

2008, pet. ref’d). Moreover, the defense may not claim error successfully on

appeal due to the omission of a lesser-included-offense instruction if the defense

did not request one. Delgado, 235 S.W.3d at 250; Mashburn, 272 S.W.3d at 15.


                                         11
      Appellant acknowledges that he did not object to the charge or request an

instruction but argues that we should nonetheless apply the egregious harm

standard of Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). This

argument, however, suffers the same flaw in reasoning as that relied upon by the

court of appeals in Tolbert v. State, 306 S.W.3d 776, 777 (Tex. Crim. App. 2010).

In that case, the court of criminal appeals corrected the court of appeals for

assuming error in a charge that did not contain a lesser-included-offense

instruction that the appellant never requested.

      The court of appeals’ opinion appears to assume that the trial court
      erred in not sua sponte instructing the jury on the lesser-included
      offense of murder and then addressed whether this jury-charge
      ―error‖ egregiously harmed appellant under Almanza after rejecting
      the State’s estoppel argument based on appellant’s statement that
      she had ―no objection‖ to the jury charge. This was error. Before
      applying Almanza’s egregious-harm standard for unobjected-to jury
      charge error, the court of appeals should have first decided whether
      it was ―error‖ for the trial court not to sua sponte instruct the jury on
      the lesser-included offense of murder.

Id. at 779 (citations omitted).

      The court went on to hold that the trial court had no duty to sua sponte

instruct the jury on a lesser-included offense, that such an instruction was not law

applicable to the case absent a request by the defense, and that, consequently,

there was no jury-charge ―error‖ to which Almanza would apply. Id. at 781–82.

The same is true here.

      Because the trial court had no duty to sua sponte instruct the jury on the

lesser-included offenses when Appellant only now, for the first time, claims he



                                         12
was entitled to such instructions, the trial court did not err by not including them

in the charge. Accordingly, we overrule Appellant’s fourth issue.

                         Prior Unadjudicated Bad Acts

      In his fifth issue, Appellant complains of the State’s cross-examining him

about prior unadjudicated acts of family violence as set out below:

      Q. [by the district attorney] Well, Mr. Malone, you said you’ve been
      in jail for DWI, correct?

      A. Yes, sir.

      Q. And your lawyer asked you several different times in several
      different ways what you’ve been arrested for and what you’ve been
      in jail for. Do you remember that?

      A. Sir?

      Q. Remember, she asked you several times what you’d been in jail
      for?

      A. Right.

      Q. And you said DWIs, a couple of them.

      A. Yes, sir.

      MS. WALKER: Your Honor, I would object on that. What I asked
      him for was what he had been convicted of, and I specifically was
      real clear about that, what he had been convicted of.

      Actually, although counsel did ask her client about convictions, she also

specifically asked, ―were you ever in jail?‖ and ―what have you been in jail for?‖6


      6
       Appellant testified on direct as follows:

            MS. WALKER [for the defense]: Sir, were you ever in jail?


                                         13
A. [Appellant]: Whoo—

MR. CHRISTIAN [the district attorney]: Objection, relevance,
Your Honor.

MS. WALKER: Your Honor, it’s a question about his history.
It’s going to come out on cross.

THE COURT: Overruled.

A. Yes, ma’am.

Q. (BY MS. WALKER) And what have you been in jail for?

A. I had a – – couple of DWIs, misdemeanors.

Q. Okay. Sir, dating back to 1983, does that sound familiar?

A. Exactly, yes, ma’am.

Q. 1984?

A. Yes, ma’am.

Q. Now, what else, sir, do you remember?

A. I’ve been to jail for?

Q. Well, I’m asking you any other convictions that you recall.

A. Two – – the DWIs, misdemeanors, – –

Q. Correct.

A. – – and I – – I’m wanting to say the last time I was in jail
was probably – – whoo – – I’m wanting to say nine, ten years
ago, I think I’m – –

Q. Okay.

A. I’m not exactly sure.

Q. All right. And so – –


                            14
And when the prosecutor objected to this inquiry, Appellant’s counsel responded

that the information was admissible and would ―come out on cross.‖

      After the trial court overruled Appellant’s objection, the State’s cross

examination continued as follows:

      Q. (BY MR. CHRISTIAN) Remember being arrested in Arlington
      for aggravated assault?

      A.   No, sir.

      Q.   That didn’t happen?

      A.   Not that I recall, no.

      Q. How about in Hood County for family violence assault, you get
      arrested for that?

      A.   I don’t think so, not – – not to my knowledge.

      Q. Well, don’t you think that being arrested and put in jail for family
      violence assault is something that a person would remember?




            A. But it was for a – – a – – a – –

            Q. Sir, what I’m asking you about, though, are convictions. All
            right? And so you know you’ve got these DWI convictions,
            and that’s all you’ve got?

            A. Yes, ma’am.

            Q. All right. And, of course, you’ve got this arrest.

            A. Yes, ma’am. And I’ve had a PI, too, though.

            Q. Public intox?

            A. Yes, ma’am.


                                        15
A. That’s what I’m saying. I – – I can’t remember. That’s you
know, that’s why I don’t say that I – –

Q. Who’s – – who’s Linda Gail Malone?

A.   Who?

Q.   Linda Gail Malone?

A.   Linda Gail Malone? That was my first wife.

Q. Right. She wasn’t the victim in one of these family violence
assaults?

A. Not that I recall, no.

Q.   Just forgot about it, if it happened?

A.   If it happened, I don’t remember it, no, sir.

Q. You would agree with me that – – nobody would be that better
position[ed] to know if you’ve been arrested two times for assault,
once a felony, other than you, you would know better than anybody.

MS. WALKER: Your Honor, objection. He’s asked and answered
twice now.

THE COURT: Overruled.

A. Well, I – – I – – I don’t recall. I – – I’m – – I’m telling the truth
here. I do not recall.

Q. (BY MR. CHRISTIAN) And you think it’s – – is it possible that
you could have been in jail for these assaults and you just don’t
remember? Is that what you’re telling us?

A. I don’t recall. Yes, sir. It – – I don’t know. I really – – really
don’t know.

Q.   All right. But do you recall the DWIs?

A.   Yes, sir.



                                   16
      A complaint made on appeal must comport with the complaint made in the

trial court or the error is forfeited. Pena v. State, 285 S.W.3d 459, 464 (Tex.

Crim. App. 2009). An objection preserves only the specific ground cited. Tex. R.

App. P. 33.1(a)(1)(A); Mosley, 983 S.W.2d at 265; Bell, 938 S.W.2d at 54; see

also Fierro v. State, 706 S.W.2d 310, 317–18 (Tex. Crim. App. 1986) (holding

that general objection is insufficient to apprise trial court of complaint urged and

thus preserves nothing for review).     Further, with a couple of exceptions for

circumstances that are absent in this case, to preserve error, a party must

continue to object each time the objectionable evidence is offered. Martinez v.

State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (citing Ethington v. State, 819

S.W.2d 854, 858 (Tex. Crim. App. 1991)); Fuentes v. State, 991 S.W.2d 267, 273

(Tex. Crim. App.), cert. denied, 528 U.S. 1026 (1999). A trial court’s erroneous

admission of evidence will not require reversal when other such evidence was

received without objection, either before or after the complained-of ruling. Leday

v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).

      The record before us shows that Appellant objected to the State’s cross

examination on two grounds: (1) that the prosecutor was mischaracterizing a

question asked on direct and (2) that a question had been asked and answered.

Appellant’s claims on appeal assert that the trial court violated rules of evidence

403, 404(b), 608(b), and 609(a).        These claims do not comport with the

objections Appellant raised at trial.   Accordingly, we overrule Appellant’s fifth

issue. See Pena, 285 S.W.3d at 464.


                                        17
                                    Local Rules

      In his sixth issue, Appellant asserts that his conviction should be reversed

because the trial court violated one of its own local rules by admitting an aerial

photograph that Appellant allegedly had not received before trial and that showed

the same area as other aerial photographs admitted during trial without objection.

      Appellant contends that the trial court violated Local Rule 7.3, which

provides:

             At the time the parties report for trial they will deliver to the
      Court, the Court Reporter and the other parties a witness list and
      exhibit list and any motion in limine. Any witnesses or exhibits not
      shown on such list can be used at the trial only upon leave of the
      Court. Prior to commencement of trial all exhibits will be marked,
      exchanged and examined by counsel so that the trial will not be
      delayed by such examination.

355th (Tex.) Dist. Ct. Loc. R. 7.3 (Hood County).

      Appellant claims he ―never received‖ Exhibit 42, which we take to be a

complaint that the provision in Local Rule 7.3 that ―all exhibits will be marked,

exchanged and examined by counsel‖ was not complied with. As pointed out by

the State, the only evidence in the record that Exhibit 42 was not exchanged with

counsel is Appellant’s trial counsel’s telling the trial court, ―Your Honor, we object

on the grounds we never received this document.‖             But assuming without

deciding that this is sufficient to show a violation of Local Rule 7.3, and putting

aside for the moment the issue of harm, we are not sure we agree with

Appellant’s proposed remedy, which is a reversal of his conviction for murder.




                                         18
      Appellant has provided us no cases overturning criminal convictions on the

basis of a local rule requiring similar ―exchange and examination‖ of exhibits

before trial. The two cases cited in Appellant’s brief are original proceedings in

which the appellants sought and were granted mandamus relief in civil cases.

See Dancy v. Daggett, 815 S.W.2d 548 (Tex. 1991) (orig. proceeding); Crane v.

Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959) (orig. proceeding).7

      We think mandamus is a radically different remedy than reversal of a

criminal conviction.   We need not decide that particular issue in this case,

however, because no criminal conviction may be reversed for nonconstitutional

error absent violation of a substantial right of the defendant. Tex. R. App. P.

44.2(b). Appellant does not allege that the trial court violated any provision of the

federal or state constitution; only a local rule. Therefore the applicable harm

analysis would be that for nonconstitutional error set out in rule 44.2(b), and, if

there was error, it should be disregarded absent effect to Appellant’s substantial

rights. Tex. R. App. P. 44.2(b).



      7
        In Dancy, the trial court conducted a hearing in a divorce action, knowing
that the attorney representing the husband had to appear in another court. See
Dancy, 815 S.W.2d at 549. The Texas Supreme Court found that the trial court
had violated a local rule regarding conflicts in docket settings, which effectively
denied the husband representation during the divorce hearing. The remedy
sought and provided was mandamus relief, not reversal. In Crane, the Texas
Supreme Court conditionally granted mandamus to require the trial court to
examine the defendant’s income tax return and determine which parts were
relevant and material before requiring the defendant to produce the return for
examination and copying by plaintiff. 328 S.W.2d at 440–41.


                                         19
      We have examined the complained-of photograph.              It is a satellite

photograph that is practically identical to other satellite photographs admitted at

trial without objection.   The only difference is that this particular satellite

photograph has scaling and a compass to indicate directions. Appellant has not

made any argument that admission of this photograph with these two additions

has caused him harm while admission of other similar photographs without the

additions have not. Having examined the complained-of exhibit and compared it

with other similar exhibits and having examined the record as a whole, we hold

that admission of the exhibit, even if it were error, had no effect on any of

Appellant’s substantial rights. Accordingly, we overrule Appellant’s sixth issue.

                                   Conclusion

      Having overruled all of Appellant’s issues, we affirm the trial court’s

judgment.


                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

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

DELIVERED: October 27, 2011




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