                          NUMBER 13-17-00214-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


RODOLFO MARTINEZ ALVAREZ,                                                Appellant,

                                             v.

THE STATE OF TEXAS,                                                      Appellee.


                  On appeal from the 377th District Court
                        of Victoria County, Texas.


                          MEMORANDUM OPINION

           Before Justices Contreras, Longoria, and Hinojosa
               Memorandum Opinion by Justice Hinojosa

      Appellant Rodolfo Martinez Alvarez appeals his conviction for aggravated assault,

a second-degree felony.    See TEX. PENAL CODE ANN. § 22.02(a)(2) (West, Westlaw

through 2017 1st C.S.). A jury returned a guilty verdict and assessed punishment of

fifteen years’ imprisonment in the Texas Department of Criminal Justice-Institutional

Division and a $7,500 fine. The trial court sentenced appellant accordingly. By one
issue, appellant argues that the trial court abused its discretion when it overruled

appellant’s Rule 403 objection to photographic evidence. We affirm.

                                           I.      BACKGROUND

       Appellant was involved in a high-speed vehicle collision, injuring Y.C. and killing

Y.C.’s nine-year-old daughter P.C. 1             A grand jury returned a three-count indictment

charging appellant with (1) the murder of P.C., (2) aggravated assault by causing serious

bodily injury to Y.C., and (3) intoxication assault of Y.C. The State proceeded to trial on

count 2 only.

       Y.C. testified that she was driving to Wal-Mart in Victoria, Texas late at night.

P.C., who was wearing a seat belt, was asleep in the backseat of her vehicle, a 2001 Ford

Expedition. As Y.C. neared Wal-Mart, she told P.C. it was time to wake up. Y.C. then

noticed a vehicle turning on the road behind her, exiting the Two Step Bar. She observed

a vehicle’s headlights approaching at a high rate of speed in her driver’s side mirror. The

next thing Y.C. remembered was waking up in the emergency room. Y.C. suffered a

broken arm, broken ribs, lacerations to her head, and a collapsed lung.                              Y.C. was

informed by her husband and hospital staff that P.C. was in a coma and would likely never

regain consciousness. She decided with her husband to take P.C. off of life support.

The State introduced as State’s exhibit 1 a photograph of P.C. taken prior to the accident

and approximately six months before her death. The trial court admitted the exhibit over

appellant’s Rule 403 and relevancy objections. See TEX. R. EVID. 402, 403. The trial

court also admitted State’s exhibit 10, two photographs of P.C. lying on an examination



       1   We use initials to refer to the minor decedent and her family to protect their privacy.
                                                       2
table following her death, over appellant’s same objections.

       Brandon Allen, an officer with the Victoria Police Department, testified concerning

his investigation of the accident, which included an accident reconstruction. Officer Allen

testified that the speed limit at the site of the collision was fifty miles per hour. Officer

Allen determined through his investigation, which included reviewing data from the “black

box” of appellant’s vehicle, that appellant was travelling approximately eighty-nine miles

per hour when his vehicle rear-ended Y.C.’s vehicle. As a result of the impact, Y.C.’s

vehicle left the roadway, became airborne while spinning and rolling, before coming to

rest in a ditch 441 feet away. Officer Allen stated that even at such a high rate of speed,

appellant should have been able to avoid colliding with Y.C.’s vehicle.

       Caesar Villarreal, a corporal with the Texas Department of Public Safety, testified

that he reviewed data downloaded from the airbag control module of appellant’s vehicle.

Corporal Villarreal stated that appellant’s vehicle was travelling at a speed of ninety-four

miles per hour just prior to impact and eighty-nine miles per hour at the point of impact,

which caused appellant’s vehicle to slow by 21.97 miles per hour. According to Corporal

Villarreal, the data showed that appellant did not brake or take evasive action prior to the

collision.

       Blair Cerny, an officer with the Victoria Police Department, testified that he

responded to the scene of the accident. Officer Cerny observed that Y.C. was conscious

and that she was bleeding profusely from her face and head. He also observed P.C.

slumped over in the backseat. The doors to the vehicle would not open, so Officer Cerny

leaned through a shattered window to make contact with P.C. He noticed that P.C. was


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unconscious and her breathing irregular, but he detected a pulse. Officer Cerny stayed

with P.C. to monitor her condition. When P.C.’s pulse stopped, he then decided to

remove P.C. from the vehicle. With the aid of another officer, they removed P.C. by

pulling her through the window.     At that point, P.C. was attended to by emergency

medical responders.

      Austin Carter, an emergency medical technician for the Victoria Fire Department,

responded to the scene of the accident. Carter testified that he spoke to appellant to

determine if he required medical attention, which appellant refused. According to Carter,

appellant stated that he recently consumed “three to four beers.” Carter stated that

appellant’s breath smelled of alcohol.

      John Maresh, a Victoria Police Department officer, made contact with appellant at

the accident scene. Officer Maresh observed appellant behind the wheel of a Ford F-

350 truck with heavy front-end damage. Appellant was unable to recall any details

concerning the accident.     Officer Maresh detected a strong odor of alcohol once

appellant exited the vehicle.     He also observed that appellant’s eyes appeared

bloodshot, glassy, and watery.

      After appellant was assessed by an emergency medical technician, Officer Maresh

administered field sobriety tests. The trial court admitted a dash-cam video recording

showing the administration of the tests.        Officer Maresh observed all six clues of

intoxication when administering the horizontal gaze nystagmus test. During the walk and

turn test, Officer Maresh observed appellant fail to maintain balance, walk heel to toe,

maintain a straight line, turn properly, and take the correct number of steps—all clues of


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intoxication. When asked to balance on one leg, appellant used his arms for balance,

swayed, and put his foot down several times. Officer Maresh concluded that appellant

was intoxicated and placed him under arrest.

        Officer Maresh requested that appellant provide a voluntary blood specimen.

Appellant declined to do so, but he said that “he probably had too many or it was over the

limit.” Officer Maresh obtained a search warrant to secure a sample of appellant’s blood.

He then transported appellant to the hospital and observed the drawing of appellant’s

blood. The trial court admitted a laboratory report prepared by the Texas Department of

Public Safety Crime Laboratory which showed that appellant’s blood alcohol

concentration was 0.101 grams of alcohol per 100 milliliters. 2

        Cynthia Savage, M.D., a physician at Citizens Medical Center, testified that

appellant was brought to the emergency room following the accident where she examined

him. The trial court admitted appellant’s medical records which indicated that appellant

appeared to be intoxicated and smelled of alcohol.

        Matthew Janzow, M.D., treated Y.C. for her injuries. Janzow testified that Y.C.

suffered scalp and back lacerations, a broken arm, eight broken ribs, and a bruised and

collapsed lung.       Janzow stated that Y.C. was at risk of death and permanent

disfigurement had her injuries not been treated.

        Jeorg-Ann Nevins, a friend of Y.C., testified that on the night of the accident she

carried a sleeping P.C. to Y.C.’s vehicle. Nevins placed P.C. in the driver’s side back



        2 A person is intoxicated under the Texas Penal Code if the person’s alcohol concentration is .08

grams of alcohol or more per 100 milliliters of blood. TEX. PENAL CODE ANN. § 49.01(2)(B) (West, Westlaw
through 2017 1st C.S.).
                                                   5
seat and secured her seat belt with the shoulder strap in front of P.C. Nevins later saw

P.C. at the hospital and noticed a bruise on her face and neck. Nevins stated that the

bruising was located in the area where the seat belt would have contacted P.C.’s body.

Nevins also testified that signs of bruising could be seen on P.C.’s face in State’s exhibit

10.

       The State also asked Nevins to identify State’s exhibit 2, which she described as

a photograph of P.C. taken just prior to the accident. Appellant objected to the admission

of the photograph under Texas Rules of Evidence 403 and 404. See id. R. 403, 404.

The State responded that the photograph was admissible to demonstrate that P.C.’s face

was not bruised prior to the accident and that the bruising following the accident

demonstrated that P.C. was wearing a seatbelt. The trial court overruled appellant’s

objections and admitted the exhibit.

       The jury found appellant guilty of aggravated assault. The jury also made an

affirmative finding that appellant used or exhibited a deadly weapon during the

commission of the offense. This appeal followed.

                                    II.    DISCUSSION

       In his sole issue, appellant argues that “[t]he trial court erred by admitting, over

defense objections under Texas Rule of Evidence 403,” State’s exhibits 1, 2, and 10.

A.     Standard of Review and Applicable Law

       We review a trial court’s decision to admit or exclude evidence under an abuse-of-

discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).

A trial court abuses its discretion when its decision lies outside the zone of reasonable


                                             6
disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). A

trial court’s ruling will be upheld if it is reasonably supported by the record and is correct

under any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845

(Tex. Crim. App. 2002).

       Rule 403 provides that, “[t]he court may exclude relevant evidence if its probative

value is substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, or needlessly

presenting 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.   Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010).             A

photograph is generally admissible if verbal testimony about the matters depicted in the

photograph is also admissible. See Young v. State, 283 S.W.3d 854, 875 (Tex. Crim.

App. 2009). Rule 403 requires that a photograph possess some probative value and that

its inflammatory nature not substantially outweigh that value. Williams v. State, 301

S.W.3d 675, 690 (Tex. Crim. App. 2009).

       A court may consider several factors in determining whether the danger of unfair

prejudice substantially outweighs the probative value of photographs, including 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, and whether the body depicted is

clothed or naked. See Young, 283 S.W.3d at 875. But a court should not be limited by

this list. Id. It should also consider the availability of other means of proof and the

circumstances unique to each individual case. Id.


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B.     Analysis

       Appellant argues that “[w]hile the three photos of [P.C.] would likely be admissible

at the trial of an indictment alleging that [P.C.] was the victim of a murder or other

homicide, it should not be so at the trial of an indictment for aggravated assault on her

adult mother.” (Emphasis in appellant’s brief). Appellant posits that the probative value

of the photos was “to show that a vehicle can indeed serve as a deadly weapon.”

However, appellant argues that this purpose “was thoroughly satisfied when the State

produced evidence of [Y.C.’s] serious bodily injuries from the crash.”           The State

responds that evidence of P.C.’s death was indeed relevant to establish appellant was

using his vehicle as a deadly weapon during the commission of the aggravated assault.

The State also maintains that pictures of P.C. in life gave the jury a point of reference to

compare to P.C.’s facial injuries depicted in State’s exhibit 10. The State further notes

that the exhibits are not unnecessarily cumulative or particularly gruesome.

       We find the court of criminal appeals’ decision in Prible v. State instructive. 175

S.W.3d 724 (Tex. Crim. App. 2005). In that case, the defendant was convicted of capital

murder for shooting and killing two people during the same criminal offense. Id. at 726.

The State’s evidence established that the defendant also murdered the complainants’

three children in setting a fire to cover up the murders of the parents. Id. at 727. The

court held that evidence of the children’s death was admissible under Texas Rule of

Evidence 404 as same-transaction contextual evidence. Id. at 732. “[I]t was not an

abuse of discretion in this case for the trial court to conclude that the murders of [the

parents] and deaths, by smoke inhalation, of their three children were so connected that


                                             8
they formed an indivisible criminal transaction.” Id. The court explained that “testimony

about the children’s deaths fills in gaps of the interwoven events and consequences of a

defendant’s criminal conduct and thus helps the jury to understand the case in context.”

Id.

       Next, the court concluded that the admission of evidence concerning the children’s

death did not violate Rule 403. Id. at 733. Such evidence was probative in that it

corroborated witness testimony that the defendant knew the children were in bed when

he set the fire. Id. Therefore, the court concluded that the evidence tended to show

that it was the defendant who committed the crime. Id. Regarding the prejudicial effect

of the evidence, the court explained, “No matter how angry the jury might have been about

the children’s deaths, that emotional response could be connected to appellant only if the

jury first found that he caused their parents’ death.” Id.

       The court then concluded that the admission of crime scene photographs depicting

the children’s bodies did not violate Rule 403. Id. at 734. In each of the photographs,

the children were clothed and their bodies were covered in soot.        Id. at 735.   The

children were not mutilated or charred. Id. The court determined that the danger of

unfair prejudice from the admission of the photos was small. Id. The court continued:

“The crime scene photographs depicting the location and condition of the children’s

bodies were limited in number, and the State focused on them only to the extent

necessary to explain the neighbor’s and firefighters’ attempts to account for all the

inhabitants of the house and to corroborate [a witness’s] testimony.” Id.

       Finally, the court concluded that the admission of autopsy photographs of the


                                             9
children depicting dissected body parts violated Rule 403 but that such error was

harmless. Id. at 737–38. The court reasoned in part that “at the time of their admission,

the jury had already seen and heard about the disturbing circumstances of the children’s

deaths through properly admitted photographs and testimony.” Id. at 738.

       Like Prible, this case involves the admission of evidence pertaining to the death of

a child, which resulted from the same criminal transaction for which appellant was being

tried. Accordingly, evidence that P.C. died in the collision was relevant and admissible

as same-transaction contextual evidence. See id. at 732; see also Wyatt v. State, 23

S.W.3d 18, 25 (Tex. Crim. App. 2000) (explaining that evidence of another crime, wrong,

or act may be admissible as same-transaction contextual evidence where several crimes

are intermixed, or blended with one another, or connected so that they form an indivisible

criminal transaction, and full proof by testimony of any one of them cannot be given

without showing the others). Furthermore, such evidence was probative of whether or

not appellant used his vehicle as a deadly weapon during the commission of the offense

of aggravated assault, a question which the jury answered in the affirmative. See TEX.

PENAL CODE ANN. § 1.07(17)(B) (West, Westlaw through 2017 1st C.S.) (defining deadly

weapon as “anything that in the manner of its use or intended use is capable of causing

death or serious bodily injury”); Duran v. State, 492 S.W.3d 741, 745 (Tex. Crim. App.

2016) (explaining that the entry of a deadly weapon finding affects a defendant’s eligibility

for parole).

       With respect to the complained of photographs, we conclude that they are no more

prejudicial than the crime scene photographs in Prible. State’s exhibits 1 and 2 depict


                                             10
P.C. prior to her death—exhibit 1 shows P.C. months earlier, exhibit 2 shows P.C. hours

before the accident. State’s exhibit 10 contains two photographs of P.C. lying on an

examination table following her death. One of the photographs shows a close-up of

P.C.’s face and neck. No injuries are apparent in the photograph aside from a faint

bruise on P.C.’s face. The second photograph depicts P.C.’s full body from the side.

While P.C. is not clothed, a cast covering her left leg obscures her lower half. Other than

the cast, there are no injuries indicated in the photograph.

       The State’s focus on these photographs was primarily limited to corroborating

testimony that P.C. was properly secured with a seatbelt. This was done by highlighting

bruising where the shoulder strap would have contacted P.C. The four photographs

contain no gruesome depictions. While they are in color, they do not show in great detail

the injuries sustained and do not appear to be atypical in size.          The number of

photographs was not voluminous, and the State’s introduction of the evidence did not

consume an inordinate amount of time. We also note, as did the court in Prible, that any

emotional response by the jury to the photographs would not be connected to appellant

unless the jury first found that appellant was responsible for the accident. See Prible,

175 S.W.3d at 733.

       Where elements of a photograph are genuinely helpful to the jury in making its

decision, and the photograph’s power “emanates from nothing more than what the

defendant himself has done[,] we cannot hold that the trial court has abused its discretion

merely because it admitted the evidence.” Sonnier v. State, 913 S.W.2d 511, 519 (Tex.

Crim. App. 1995). The trial court’s determination that the photographs’ probative value


                                            11
was not substantially outweighed by a danger of unfair prejudice was not outside the zone

of reasonable disagreement. See Montgomery, 810 S.W.2d at 391. Therefore, we

conclude that the trial court did not abuse its discretion in overruling appellant’s Rule 403

objection. See Weatherred, 15 S.W.3d at 542.

       Even if we were to find error in the admission of the photographs, we would not

conclude that appellant was harmed by the error. Error in the admission of evidence is

non-constitutional error. See TEX. R. APP. P. 44.2(b); Barshaw v. State, 342 S.W.3d 91,

93 (Tex. Crim. App. 2011); Jabari v. State, 273 S.W.3d 745, 754 (Tex. App.—Houston

[1st Dist.] 2008, no pet.). We disregard any non-constitutional error that does not affect

a defendant’s substantial rights. Barshaw, 342 S.W.3d at 93. “A substantial right is

affected when the error had a substantial and injurious effect or influence in determining

the jury’s verdict.” Jabari, 273 S.W.3d at 754 (citing Morales v. State, 32 S.W.3d 862,

867 (Tex. Crim. App. 2000)). We should not reverse a conviction for non-constitutional

error if, after examining the record as whole, we have “fair assurance that the error did

not influence the jury, or had but a slight effect.” See id. (citing Johnson v. State, 967

S.W.2d 410, 417 (Tex. Crim. App. 1998)).

       In making this determination, we consider the entire record, including any

testimony and physical evidence admitted for the jury’s consideration, the nature of the

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

considered in connection with other evidence in the case. Haley v. State, 173 S.W.3d

510, 518 (Tex. Crim. App. 2005); Motilla v. State, 78 S.W.3d 352, 355–56 (Tex. Crim.

App. 2002). The weight of evidence of the defendant’s guilt is relevant in conducting the


                                             12
harm analysis under rule 44.2(b). Neal v. State, 256 S.W.3d 264, 285 (Tex. Crim. App.

2008); Motilla, 78 S.W.3d at 356–57. We may also consider the closing statements and

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

State emphasized the alleged error. Motilla, 78 S.W.3d at 355–56.

       Similar to Prible, the jury had already heard evidence about the circumstances of

P.C.’s death. Appellant identifies no characteristic of the photographs that would tend to

be more harmful than other properly admitted evidence.          The State did not overly

emphasize the photographs. Rather, as noted above, the State’s discussion consumed

very little of the trial. Moreover, evidence of appellant’s guilt was strong. Appellant, who

recently left a bar, was operating his vehicle while legally intoxicated. He collided with

Y.C.’s vehicle from behind at a velocity which exceeded the speed limit by forty miles per

hour. Furthermore, appellant did not brake and took no evasive action to avoid the

collision. Finally, there was ample evidence that Y.C. suffered serious bodily injury as a

result of the collision. The admission of photographs of P.C., even if erroneous, did not

violate appellant’s substantial rights.

       We overrule appellant’s sole issue.

                                      III. CONCLUSION

       We affirm the trial court’s judgment.

                                                               LETICIA HINOJOSA
                                                               Justice

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

Delivered and filed the
29th day of August, 2018.

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