                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                             NOS. 02-10-00163-CR
                                  02-10-00164-CR


ERICA LARAE KOLANOWSKI                                                     APPELLANT

                                         V.

THE STATE OF TEXAS                                                              STATE


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      FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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                          MEMORANDUM OPINION1
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                                  I. INTRODUCTION

      Appellant   Erica   Larae    Kolanowski      pleaded   guilty   to    intoxication

manslaughter and intoxication assault and pleaded not true to the deadly weapon

allegations in both indictments. After a trial on punishment, the jury assessed her

punishment at sixteen years’ confinement and a $6,000 fine in Cause Number


      1
       See Tex. R. App. P. 47.4.
1146625D (the intoxication manslaughter conviction) and at ten years’

confinement and a $6,000 fine in Cause Number 1152610D (the intoxication

assault conviction). In both causes, the jury also found that Kolanowski had used

or exhibited a deadly weapon, to-wit: a motor vehicle, that in the manner of its

use or intended use was capable of causing death or serious bodily injury. The

trial court sentenced Kolanowski accordingly, ordering that the sentences run

concurrently. Kolanowski appeals, arguing in one issue that the trial court abused

its discretion by admitting a slow-motion videotape of the collision and

photographs taken at the scene. We will affirm.

                    II. FACTUAL AND PROCEDURAL BACKGROUND

      After drinking alcoholic beverages for several hours, Kolanowski left a bar

at around 11:00 p.m., and on her way home, she ran a red light at the

intersection of South Cooper and Southwest Green Oaks in Arlington.           Her

Chevrolet Trailblazer ―plowed‖ into a Dodge Avenger driven by Matthew Lundy.

Lundy was driving his friend Joshua Carter home from his job at a Chili’s

restaurant. Kolanowski’s SUV was traveling more than seventy-two miles per

hour in a forty-five-miles-per-hour zone when she ran the red light, and Lundy’s

car was traveling approximately eighteen miles per hour as he accelerated into

the intersection.

      Carter, who was in the front passenger seat, suffered a fracture at the

base of his skull that tore the major blood vessels in that area. As a result, he

suffered hemo-aspiration, which means that blood accumulated in his lungs and


                                        2
was ―blown out‖ through his nose and mouth.        He was dead on the scene.

Arlington firefighter David Jasper had to remove Carter’s body from the

passenger side of the car in order to reach Lundy in the driver’s seat. Lundy,

who was alive but in critical condition, was transported to John Peter Smith

Hospital. Lundy was twenty-one years old at the time, and Carter was twenty

years old.

      At the scene, Kolanowski told Arlington firefighter Xavier Flores that she

was in a hurry to get home to her dogs and asked Flores where her dogs were.

Flores noticed an odor of alcoholic beverage on her breath. She was taken to

the hospital, where she talked to Officer Chad Hickey. Kolanowski told Officer

Hickey that she had consumed a couple of beers earlier in the afternoon; then

had gone to G Willikers bar and consumed three or four rum and Diet Coke

drinks there; had gone to another bar, where she had consumed more drinks;

and had been dropped off at her car at G Willikers before leaving to go home.

Officer Hickey arrested Kolanowski, and she consented to a blood draw. The

results of the blood test showed that her blood alcohol concentration was 0.177,

more than twice the legal limit in Texas.2

      Lundy remained in the hospital for eighty-five days, two months of which

he was in a coma. As a result of the collision, he suffered a broken collarbone,

shoulder blade, elbow, and ribs; a skull fracture; a facial fracture of his right

      2
        See Tex. Penal Code Ann. § 49.01(2)(B) (Vernon 2003) (defining
intoxication as having an alcohol concentration of 0.08 or more).


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sinus; a broken tooth; cervical fractures; a crushed pelvis; a lacerated liver;

damage to his kidney and spleen; bruises on his heart and lungs; and two brain

injuries. He was quadriplegic after the wreck, but after extensive therapy, he was

considered paraplegic at the time of trial because he had regained full use of his

right arm and hand and limited use of his legs and his left arm and hand. His

brain injury will likely prevent him from walking again and affected his cognitive

functioning and speech. At the time of trial, Lundy lived with his mother and

stepfather and received outpatient therapy.

      During the punishment phase of trial, the State offered into evidence as

State’s Exhibit 19A a videotape created with footage taken from the red light

camera maintained at the intersection of South Cooper and Southwest Green

Oaks. The videotape shows, in real-time speed and in varying degrees of slow

motion, Kolanowski’s SUV enter the intersection and hit Lundy’s car. The State

also offered into evidence approximately twenty photographs depicting the scene

of the accident and the vehicles after the crash. Kolanowski asserted rule 403

objections to the videotape and two of the photographs from the scene, which the

trial court overruled.

        III. LAW ON ADMISSIBILITY OF EVIDENCE AND STANDARD OF REVIEW

      Article 37.07, section 3(a)(1) of the Texas Code of Criminal Procedure

governs the admissibility of evidence during the punishment phase. See Tex.

Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2010). It provides that

―[r]egardless of the plea and whether the punishment be assessed by the judge


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or the jury, evidence may be offered by the state and the defendant as to any

matter the court deems relevant to sentencing . . . .‖ Id. As the Texas Court of

Criminal Appeals has explained,

      [B]ecause the jury’s decision in a non-capital case does not involve
      a discrete finding, the relevance of evidence cannot be determined
      by a deductive process but rather is a function of policy. The
      policies that operate during the punishment phase of a non-capital
      trial include (1) giving complete information to the jury to allow it to
      tailor an appropriate sentence for the defendant; (2) the rule of
      optional completeness; and (3) whether the appellant admits the
      truth during the sentencing phase. As a result, we have explained
      that relevance 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) (footnotes omitted).

      A trial court must decide whether the probative value of the evidence is

substantial or slight, and in the latter case, whether the proffer is made solely to

unfairly prejudice or mislead the jury or confuse the issues in the case. See Tex.

R. Evid. 403; Gordon v. State, 784 S.W.2d 410, 412 (Tex. Crim. App. 1990).

Texas Rule of Evidence 403 allows for the exclusion of otherwise relevant

evidence when 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.     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, 549 U.S. 1056 (2006). A rule 403 analysis should include, but is not



                                         5
limited to, the following factors:   (1) how probative the evidence is; (2) the

potential of the evidence to impress the jury in some irrational, but nevertheless

indelible way; (3) the time the proponent needs to develop the evidence; and (4)

the proponent’s need for the evidence. Id.

      We review a trial court’s rulings on the admission of evidence, including

the admission of photographs, under an abuse of discretion standard and will not

reverse absent a clear abuse of discretion. Id. at 786; Apolinar v. State, 155

S.W.3d 184, 186 (Tex. Crim. App. 2005). If the trial court’s decision to admit the

evidence lies within the zone of reasonable disagreement, then the decision must

be upheld. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1998) (op. on

reh’g); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op.

on reh’g).

                    IV. ADMISSIBILITY OF EVIDENCE AT PUNISHMENT

      In a single issue, Kolanowski argues that State’s Exhibits 9, 14, and 19A

were inadmissible under rule 403 because she had already pleaded guilty and

the State did not need the evidence. State’s Exhibit 9 is a photograph of the

scene that shows Carter’s body lying on the ground beside Lundy’s car after

being removed from the car; a blanket covers his face and torso. State’s Exhibit

14 is a close-up photograph of the interior of the passenger side door of Lundy’s

vehicle, showing blood splattered on the window and door. State’s Exhibit 19A,

the videotape, shows Kolanowski’s SUV enter the intersection and hit Lundy’s

vehicle on the driver’s side at real time speed of 30 frames per second, at half


                                        6
speed of 15 frames per second, at quarter speed of 7.5 frames per second, and

at 1.5 frames per second.

                    A. State’s Exhibit 19A—The Videotape

      Kolanowski pleaded ―not true‖ to the deadly weapon allegations in both

indictments, and consequently, the State was required to prove that she had

used or exhibited her SUV as a deadly weapon during the commission of the

offenses. The videotape was highly probative of her use of the SUV as a deadly

weapon. In fact, Kolanowski points out on appeal that ―the very point of the video

was to show the jurors the actual impact between the vehicles that could not be

seen in the real time version due to the speed of the accident[.]‖ Moreover, the

videotape was not gruesome or grotesque; it was not likely to impress the jury in

some irrational, but nevertheless indelible way; and it was very short in length.

See Shuffield, 189 S.W.3d at 787. We hold that the trial court did not abuse its

discretion by admitting the videotape over Kolanoski’s rule 403 objection. See id.

at 786; Apolinar, 155 S.W.3d at 186.

               B. State’s Exhibits 9 and 14—The Photographs

      Like other demonstrative evidence, photographs should assist the

factfinder with its decision whether that is deciding guilt or punishment; a

photograph should add something that is ―relevant, legitimate, and logical to the

testimony that accompanies it‖ and that assists the factfinder in its decision-

making duties. Erazo, 144 S.W.3d at 491.           In general, photographs are

admissible if verbal testimony about the matter shown in the photographs would


                                        7
be admissible and the probative value is not outweighed by rule 403 counter-

factors. Threadgill v. State, 146 S.W.3d 654, 670–71 (Tex. Crim. App. 2004);

Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997); see Tex. R. Evid.

403.

       In a rule 403 analysis of the trial court’s admission of photographs, we

should consider the number of photographs, the size of the photographs,

whether they are in color or black and white, the detail shown in the photographs,

whether the photographs are gruesome, whether the body is naked or clothed,

and whether the body has been altered since the crime in some way that might

enhance the gruesomeness of the photograph to the appellant’s detriment.

Williams, 958 S.W.2d at 196. Courts consistently recognize that the degree of

gruesomeness of a photograph is determined, to an extent, by the gruesome

nature of the facts of the offense itself. See id.; Sonnier v. State, 913 S.W.2d

511, 519 (Tex. Crim. App. 1995).

       In this case, the two photographs at issue are both 11x14 color

photographs. They are only two of twenty-three photographs introduced at trial.

They are disturbing but depict nothing more than the reality of the crime

committed. See Williams, 958 S.W.2d at 196; see also Ripkowski v. State, 61

S.W.3d 378, 392 (Tex. Crim. App. 2001) (―Although appellant also claims unfair

prejudice, we find that the videotape simply reflects the gruesomeness of the

crime—and that is not a sufficient reason for excluding the evidence.‖), cert.

denied, 539 U.S. 916 (2003); Sonnier, 913 S.W.2d at 519 (―But when the power


                                        8
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.‖).      The jury heard unobjected-to testimony

about the matters shown in the photographs, including how Carter’s lungs filled

with blood, which was blown from his mouth and nose in his last breaths, and

how his body had to be removed so that firefighters could reach Lundy. See

Threadgill, 146 S.W.3d at 670–71; Williams, 958 S.W.2d at 195. We hold that

the trial court did not abuse its discretion by admitting State’s Exhibits 9 and 14

over Kolanoski’s rule 403 objection. See Shuffield, 189 S.W.3d at 786; Apolinar,

155 S.W.3d at 186.

      Even if the trial court had abused its discretion by admitting State’s

Exhibits 9 and 14, Kolanowski was not harmed as a result. Because any error in

the admission of the photographs is not constitutional, rule 44.2(b) is applicable.

Tex. R. App. P. 44.2(b). 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. U.S.,

328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not

affect a substantial right if we have Afair 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). When conducting a rule 44.2(b) harm analysis, we review the record as a

whole, including any testimony or physical evidence admitted for the jury=s

                                          9
consideration, the nature of the evidence supporting the verdict, 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).

      During the punishment phase of Kolanowski’s trial, the State presented

evidence that Kolanowski’s blood alcohol concentration was more than twice the

legal limit, that she was traveling almost thirty miles per hour over the posted

forty-five-miles-per-hour speed limit when she ran the red light, and that she kept

asking about her dogs after the accident.

      Lundy’s mother testified extensively about her son’s injuries and his slow

recovery process.    According to his mother, Lundy has relearned speaking,

swallowing, brushing his teeth, and feeding himself, but he probably will not walk

again. At the time of trial, he could take some steps with the help of a walker and

someone holding his belt. He could also move from his wheelchair to a mat or

bed by himself. Lundy did not have insurance at the time of the collision, and he

was not able to stay in long-term acute care. Before the collision, Lundy was

6’5’’, tan, physically active, and outgoing. Lundy also testified that he liked to

play disk golf, basketball, and sand volleyball, as well as ―just swim and do stuff

outside.‖ His goals are to play disk golf again, talk and walk normally, jump and

run, and go to college.

      As we explained above, the jury heard about how blood was blown out of

Carter’s mouth and nose in his last breaths and about the removal of Carter’s


                                        10
body. The State did not ask any witness questions about State’s Exhibit 14.

Moreover, defense counsel did not object to State’s Exhibit 13, which also shows

blood spatter in Lundy’s vehicle. That photograph was not taken as close-up as

State’s Exhibit 14; instead, it shows the entire car from the passenger side, with

both the front and back passenger doors open. In addition to the blood on the

front passenger door, the photograph shows blood splattered on the back

passenger window and smeared along the bottom of the back passenger door

frame. Thus, even if the admission of the close-up photograph of blood splatter

on the passenger side window was error, it could not have inflamed the minds of

the jurors given the other similar photograph admitted without objection. See

Purtell v. State, 761 S.W.2d 360, 371 (Tex. Crim. App. 1988), cert. denied, 490

U.S. 1059 (1989).

      As Kolanowski points out, she received the maximum confinement term for

the intoxication assault conviction and eighty percent of the maximum

confinement term for the intoxication manslaughter conviction.3 Nevertheless,

after carefully reviewing the record as a whole, including the extensive testimony

regarding the events surrounding the collision and the nature of the injuries to

Carter and Lundy and including the other photographs admitted into evidence,

      3
       The applicable range of punishment for intoxication manslaughter is
confinement of not more than twenty years or less than two years and a fine not
to exceed $10,000. See Tex. Penal Code Ann. §§ 12.33, 49.08(b) (Vernon
Supp. 2010). The applicable range of punishment for intoxication assault is
confinement of not more than ten years or less than two years and a fine not to
exceed $10,000. See id. §§ 12.34, 49.07(c) (Vernon Supp. 2010).


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we conclude that the challenged photographs, even if improperly admitted, had

no influence, or at most a very slight influence, on the jury. See Motilla, 78

S.W.3d at 355; Solomon, 49 S.W.3d at 365; Johnson, 967 S.W.2d at 417.

Consequently, we hold that any error in the admission of the two photographs

taken at the scene was not harmful. See Tex. R. App. P. 44.2(b); King, 953

S.W.2d at 271.

         Having addressed all of Kolanowski’s complaints, we overrule her sole

issue.

                                 V. CONCLUSION

         Having overruled Kolanowski’s sole issue, we affirm the trial court’s

judgments.




                                                 SUE WALKER
                                                 JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

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

DELIVERED: April 21, 2011




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