                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-13-00219-CR


EUGENE D. ESTERS                                              APPELLANT

                                        V.

THE STATE OF TEXAS                                                  STATE


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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
                   TRIAL COURT NO. 1263515D

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                       MEMORANDUM OPINION1

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                                  I. Introduction

     In three issues, Appellant Eugene D. Esters appeals his conviction for

murder. We affirm.




     1
      See Tex. R. App. P. 47.4.
                    II. Factual and Procedural Background

      Esters lived with his girlfriend, Jennifer, for about four or five years. He

moved out of their apartment about a month before her murder. Even after his

move, he was allowed to stay there when Jennifer and her two children were

gone and allowed to come by and see their two-year-old daughter, Sara,2 in the

morning before Jennifer’s mother, Della, took the children to school.

      On December 5, 2011, Della arrived back at the apartment after taking the

children to school to discover that Jennifer and Esters had been involved in an

argument about the ownership of a set of jumper cables. Shortly thereafter,

Della, who was a secretary at Jennifer’s business, drove Jennifer to work and

later dropped her off at her apartment, noticing on the way to her own home that

Esters’s truck was heading toward the apartment.        Puzzled over why Esters

would be returning to Jennifer’s apartment, Della called Jennifer, told her what

she had seen, and stayed on the line with her. Jennifer told Della that she saw

Esters enter the apartment garage, then get in his truck, park it, and wait there,

but she asked Della not to call the police.      Della decided to return to the

apartment and stopped at a police substation on the way there but did not find

any officers present. After Della arrived back at the apartment, Jennifer and a

neighbor, Carrieta Cook, met Della at her car where Della could see Esters


      2
       We use a pseudonym for the child’s name. See Tex. R. App. P. 9.8.




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sitting in his truck across the parking lot from Jennifer’s apartment. Esters next

pulled his truck up behind the three women and said “Della, I wanted to know

when I’ll be able to see Sara.” Della relayed the message to Jennifer, who was

close by and who responded, “Gene, we will work out something.”                    Without

saying anything else, Esters exited his truck, drew a gun from his pocket, and

shot Jennifer from several feet away; after she collapsed, Ester’s approached

Jennifer and shot her again. He then confronted Della and said, “[N]ow go put

that on Facebook,” and he shot her in the chest. Esters apparently then tried to

shoot himself under his chin, but when the gun did not fire, he said, “[D]amn, I

had a bullet for myself . . . . I killed the bitch, I told her I’d kill her.” He then yelled

for someone to call 911. Esters next told Della, “[S]it [your] stupid ass down

before [you] bleed to death,” and looking at Cook, he said “[B]itch, I ran out of

bullets.”    Esters then put the gun in his truck, shouted “religious slurs,” and

stated, “I don’t have anything else to live for.” When the police arrived, he was

compliant, offered no resistance, and told the officer, “I’m not going to do

anything.”

       A jury convicted Esters of murder and assessed his punishment at life in

prison. This appeal followed.

                                 III. Sudden Passion

       In his first issue, Esters asserts that the trial court committed fundamental

punishment charge error by denying his request for a sudden passion special

issue. The defendant requested that the jury be instructed that if “the Defendant


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has raised by a preponderance of the evidence the issue of sudden passion and

you so find then the punishment range for this offense is that of a second

degree,” which was 2 to 20 years plus a fine. He further requested that “sudden

passion” be defined as “passion directly caused by and arising out of provocation

by the individual killed or another acting with the person killed which passion

arises at the time of the offense and is not solely the result of former

provocation.” Esters argues that Jennifer’s response—“[W]e will work something

out”—to his inquiry about seeing Sara “could have amounted to sudden passion

which would require that the issue be submitted to the jury.” The State responds

that there is no evidence that the murder occurred under the immediate influence

of sudden passion arising from an adequate cause.

      A. Standard of Review

      “[A]ll alleged jury-charge error must be considered on appellate review

regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645,

649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine

whether error occurred; if error did not occur, our analysis ends. Id.

      B. Requirements for Submission

      An accused who successfully argues that murder was committed under the

immediate influence of sudden passion arising from an adequate cause reduces

the level of the offense from the first to the second degree, thereby reducing the

possible punishment range. Wooten v. State, 400 S.W.3d 601, 605 (Tex. Crim.

App. 2013), Trevino v. State, 100 S.W.3d 232, 237 (Tex. Crim. App. 2003). The


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instruction given to the jury in this regard is required if some evidence raises the

issue, regardless of whether that evidence is contradicted, weak or impeached,

but is not required to be given if the evidence is so contested, weak, or incredible

such that it could not support a finding by a rational jury. Davis v. State, 268

S.W.3d 683, 693 (Tex. App.—Fort Worth 2008, pet. ref’d).            Further, if the

evidence, viewed in the light most favorable to the defendant, fails to raise the

issue of sudden passion from adequate cause, the defendant is not entitled to an

instruction. See id. at 698.

      Certain evidentiary requirements are necessary for sudden passion to be

submitted to the jury. Those are: (1) that the defendant in fact acted under the

immediate influence of a passion such as terror, anger, rage, or resentment;

(2) that his sudden passion was in fact induced by some provocation by the

deceased or another acting with him, which provocation would commonly

produce such a passion in a person of ordinary temper; (3) that he committed the

murder before regaining his capacity for cool reflection; and (4) that a causal

connection existed between the provocation, passion, and homicide.             See

Wooten, 400 S.W.3d at 605. Sudden passion is more than ordinary anger and

does not include a cause of the defendant’s own making. Hernandez v. State,

127 S.W.3d 206, 211 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d); Nance v.

State, 807 S.W.2d 855, 861 (Tex. App.—Corpus Christi 1991, pet. ref’d).

Further, the sudden passion must have arisen from adequate cause, which

requires some evidence of the condition of the accused’s mind at the time of the


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offense. Mitchell v. State, 191 S.W.3d 219, 224 (Tex. App.—San Antonio 2005,

pet. ref’d); Naasz v. State, 974 S.W.2d 418, 423 (Tex. App.—Dallas 1998, pet.

ref’d).

          C. Analysis

          With this legal backdrop, we will examine the evidence and determine if

the submission of a sudden passion instruction was required. The only evidence

proffered by Esters was the previously recounted exchange:

          [Esters to Della]–“Della, I wanted to know when I’ll be able to see
          [Sara].”

          [Della to Jennifer]–“Jennifer, Gene wants to know when he’ll be able
          to see [Sara].”

          [Jennifer to Esters]–“Gene, we will work out something.”

          The second element under Wooten requires that the provocation “would

commonly produce such a passion in a person of ordinary temper.” See Wooten,

400 S.W.3d at 605. Jennifer’s response about working something out is not an

unreasonable response such as “you’ll never see your child again.” It cannot be

said that a person of ordinary temper would produce such sudden passion under

these circumstances, and Esters cannot meet his burden under this element.

Further, the fourth Wooten element requires that a causal connection exist

between the provocation, the passion, and the homicide. Id. Here, following the

murder, Esters attempted to shoot himself, and when this failed, he said “[D]amn,

I had a bullet for myself.” This clearly indicates that this act was planned and that

he set out to kill himself after killing Jennifer, thus negating his attempt to


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establish this fourth element of proof.     Therefore, no error occurred in the

omission of a sudden passion special instruction, and Esters’s first issue is

overruled.

                               IV. A Prior Felony

      In his second issue, Esters asserts that the trial court committed

fundamental charge error by submitting a special issue inquiring of a prior felony,

thereby enhancing punishment. Esters argues that a California conviction for

grand theft was not the equivalent of the type of felony required for punishment

enhancement in Texas. The State responds that the Texas Penal Code only

requires the State to prove that an out-of-state conviction was punishable in the

penitentiary of that State in order to meet the definition of “felony” for

enhancement purposes.

      A. Analysis

      Esters had been convicted of the offense of grand theft in California, which

he argued was similar to a Texas state jail felony of theft between $1500 and

$20,000, Tex. Penal Code Ann. § 31.03(a)(4)(A), and that such state jail felonies

cannot be used for repeat offender enhancement purposes. See Ex Parte White,

211 S.W.3d 316 (Tex. Crim. App. 2007).

      Punishment for a first degree felony offense can be enhanced to life

imprisonment if it is shown that “the defendant has previously been finally

convicted of a felony other than a state jail felony . . . .” Tex. Penal Code Ann.

§ 12.42(c) (West 2011 & Supp. 2014). The code further articulates that


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      any conviction not obtained from a prosecution under this [Penal]
      [C]ode shall be classified as follows: (1) ‘felony of the third degree’ if
      imprisonment in the Texas Department of Criminal Justice or
      another penitentiary is affixed to the offense as a possible
      punishment; (2) ‘Class B misdemeanor’ if the offense is not a felony
      and confinement in a jail is affixed to the offense as a possible
      punishment.

Id. § 12.41(1)–(2) (West 2011) (emphasis added). Referring to this section, our

Court of Criminal Appeals has told us that

      [T]he Legislature enacted a statute to deal specifically with the
      classification for enhancement purposes of convictions obtained
      outside the Penal Code . . . . [T]here can be no doubt that the
      Legislature intended to make convictions for felonies in federal
      courts as well as courts of other states available for enhancement
      purposes.

Ex Parte Blume, 618 S.W.2d 373, 376 (Tex. Crim. App. 1981).                    These

convictions are contrasted with convictions whose punishment is confinement in

a jail. Specifically, “penitentiary” refers to facilities run by the Texas Department

of Corrections, that is, a facility run by the State of Texas, as opposed to a

“county jail run by the local sheriff.” Smith v. State, 789 S.W.2d 590, 592 (Tex.

Crim. App. 1990) (Clinton, J. concurring). The same state prison–versus–county

jail distinction is made in California. See People v. Lopez, 218 Cal. App. 4th

Supp. 6, 160 Cal. Rptr. 3d 678, 681 (2013).         Therefore, we must determine

whether Esters’s out-of-state conviction resulted in confinement in a California

penitentiary, which would be classified then as a felony for enhancement

purposes.    An examination of Esters’s pen packet, contained in an exhibit

introduced by the State, indicates in the “Abstract Of Judgment” that he was the



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subject of a “commitment to state prison.” Therefore, this constitutes a “felony of

the third degree” for purposes of the penal code section 12.41(1), and no charge

error occurred. Esters’s second issue is overruled.

                              V. Autopsy Photos

      Esters argues in his third issue that the trial court erred by admitting

autopsy photos that were gruesome and unduly prejudicial.

      A. Standard of Review and Rule 403

      The standard of review for a trial court’s admission of evidence is abuse of

discretion, and wide discretion is afforded to the trial judge. Green v. State, 934

S.W.2d 92, 101–03 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997);

Miller v. State, 196 S.W.3d 256, 267 (Tex. App.—Fort Worth 2006, pet. ref’d);

Hale v. State, 140 S.W.3d 381, 395 (Tex. App.—Fort Worth 2004, pet. ref’d).

The trial court’s decision should be reversed on appeal only if there is a showing

of abuse of discretion. Green, 934 S.W.2d at 101–02; Miller, 196 S.W.3d at 267.

Only if the court’s decision falls outside the “zone of reasonable disagreement”

has it abused its discretion. 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).     This standard applies to the admission of

photographs. See Davis, 268 S.W.3d at 683.

      Evidence may be excluded under Texas Rule of Evidence 403 if its

probative value is substantially outweighed by the danger of unfair prejudice. But

this rule also favors the admission of relevant evidence, and such evidence is


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presumed to be more probative than prejudicial. See Shuffield v. State, 189

S.W.3d 782, 787 (Tex. Crim. App. 2006), cert. denied, 549 U.S. 1056 (2006).

      B. Analysis

      We begin our review with an examination of the autopsy photos in

question. Those photos include: two close-ups of head wounds, a close-up of

bullet fragments and two of unfragmented bullets, four close-ups of arm wounds,

a side wound, what appears to be a leg wound, and the front view of the head

and shoulders of the victim. All of the wound photos are “clean” in that no blood

is depicted and no internal tissue is shown. Dr. Lloyd White, a pathologist and

deputy medical examiner for Tarrant County, took the photographs.                He

examined and photographed six wounds in connection with the formation of his

opinion that death resulted from “penetrating handgun wounds of the chest” and

that the manner of death was a homicide. He testified that he typically takes

photographs during autopsies to help him explain the results of the autopsy if he

is called to trial, such as occurred in this case. A review of his testimony reveals

that he explained to the jury the six wounds in question including their location,

entry and exit, and possible internal damage caused thereby.

      An examination of the case law in this area shows that much more graphic

autopsy results have been deemed admissible than the bullet wounds shown in

the subject photographs. We note that there is no depiction of dissection of the

body, removed organs, or exposed body cavities. For example, in Davis v. State,

313 S.W.3d 317 (Tex. Crim. App. 2010), a cross section of the victims tongue


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was properly admitted when necessary to show an injury not otherwise visible.

In Rayford v. State, 125 S.W.3d 521 (Tex. Crim. App. 2003), depictions of

autopsy procedures, including removed organs, were properly admitted. Nothing

of this nature is contained in the autopsy photos in this case. Additionally,

      [a] court may consider many factors in determining whether the
      probative value of photographs is substantially outweighed by the
      danger of unfair prejudice, including: the number of exhibits offered,
      their gruesomeness,[3] 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.

See Davis, 313 S.W.3d at 331.

      Turning to the above listed factors, only eleven autopsy photographs out of

over 140 State’s exhibits were introduced.             Under the commonsense

understanding of the word they cannot be said to be “gruesome”; they are

detailed only to the extent that they are well-photographed pictures of clean

wounds that depict nothing under the surface of the skin and are blown-up

pictures on boards for purposes of explanation by the assistant medical

examiner. The record does not indicate whether the photos were color or black-

and-white.   All but one are close ups depicting no more of the body than

necessary; the photographs of the arm and leg suggest that the body is

uncovered but this is not shown in the photographs. Lastly, it would theoretically



      3
       Merriam Webster’s Collegiate Dictionary defines “gruesome” as “inspiring
horror or repulsion.”


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be possible, but more difficult, for the assistant medical examiner to testify about

the location and description of the wounds without the photographs.

         Considering the foregoing factors, the previously discussed case law

concerning the admission of autopsy photographs, and the importance of the fact

that these autopsy photos are simply not “gruesome,” we hold that the trial court

did not abuse its discretion in admitting these photographs in connection with the

testimony of the assistant medical examiner in explaining the wounds and their

connection to the cause of death. Esters’s third issue is overruled.

                                   VI. Conclusion

         Having overruled Esters’s three issues, we affirm the judgment of the trial

court.

                                                    PER CURIAM

PANEL: MCCOY, J.; LIVINGSTON, C.J.; and MEIER, J.

LIVINGSTON, C.J., concurs without opinion.

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

DELIVERED: October 30, 2014




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