                                 NUMBER 13-12-00039-CR

                                 COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

JOSHUA JERELL WILSON
A/K/A JOSHUA JERRELL WILSON,                                                       Appellant,

                                                   v.

THE STATE OF TEXAS,                                                                Appellee.


                     On appeal from the Criminal District Court
                           of Jefferson County, Texas.


                             MEMORANDUM OPINION1
              Before Justices Rodriguez, Benavides, and Perkes
                  Memorandum Opinion by Justice Perkes
        Appellant, Joshua Jerell Wilson A/K/A Joshua Jerrell Wilson, appeals his

conviction for murder, a first-degree felony. See TEX. PENAL CODE ANN. § 19.02(b)(1)

(West 2011). A jury found appellant guilty, and the trial court assessed punishment at


        1
           This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
ninety-nine years of confinement in the Texas Department of Criminal Justice,

Institutional Division.      By four issues, appellant argues that (1) the evidence was

insufficient to support the conviction; (2) the trial court erred in denying his motion to

suppress a photographic lineup that was impermissibly suggestive and that created a

substantial likelihood of misidentification; (3) the trial court abused its discretion by

admitting autopsy photographs over his rule 403 objection; and (4) the trial court erred in

denying his right of confrontation by limiting his cross-examination of one of the State’s

witnesses.2 We affirm.

                                           I. BACKGROUND3

        Appellant was convicted for the murder of Hayward David Monceaux a/k/a

“Howard-T.” Howard-T was shot in the back of the head from about twelve to fifteen

inches away while standing in a well-lit “breezeway” between apartments at the Louis

Manor Apartments in Port Arthur, Texas.

        Two witnesses, Eric Brisco and Irvrie Williams, testified to seeing a person flee

from the scene of the crime. Brisco testified that at the time of the shooting he was taking

some papers to a fellow church member who resided at the Louis Manor Apartments.

Brisco testified that when he was “maybe two steps from [the church member’s] door,” he

heard “like a loud pop.”             He looked to his left and saw Howard-T “fall.”                       A

dark-complected, African-American man with a full beard was about one or two feet away

from the victim.        Brisco was about four or five feet away from the shooting.                      He


        2
            We have reorganized and restated appellant’s issues for the sake of clarity.
        3
           Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
                                                     2
immediately fled, as did the man that he saw. On the day after the shooting, Brisco

identified appellant in a photographic lineup as the man who fled the scene of the crime.

      Irvrie Williams, Howard-T’s cousin, testified that he was in a nearby apartment

when he heard the gunshot. He had opened the apartment’s bathroom window because

he was about to smoke a cigarette, when he heard the gunshot. He looked out the

window and saw Howard-T “fall” to the ground. An African-American person dressed in

black fled from the scene.

      Two other witnesses testified to seeing appellant at or near the apartment complex

before the shooting. Raquel Ladet stated that “a couple days before” the shooting, she

saw Howard-T and appellant exchanging “some words, like, not nice words” in the

parking lot adjacent to her apartment. She noted that both men appeared visibly upset,

but that appellant eventually left.   Howard T’s wife, Ashley Antoine, testified that

appellant approached her earlier on the day of the shooting, asking where he could find

Howard-T. She later identified appellant in a photographic lineup as the person who

approached her.

      Earnest Lamont Nelson testified that about three weeks after the shooting, and

while he and appellant were both in jail, he heard appellant bragging about approaching

Howard-T from behind and shooting him in the head at the Louis Manor Apartments.

According to Nelson, appellant intimated that, during a prior incarceration, he heard “the

name Howard-T and that he had been selling drugs and that he was going to make it his

business or his goal whenever he got out to look for this person to do whatever he had to

do with this person.” Nelson stated further that appellant informed him that his motive


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was to rob Howard-T and that he took some money and crack cocaine from Howard-T on

the night he shot him.

                           II. SUFFICIENCY OF THE EVIDENCE

       By his first issue, appellant contends that the evidence is insufficient to support his

murder conviction. We disagree.

A.     Standard of Review

       “The standard for determining whether the evidence is legally sufficient to support

a conviction is ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original);

see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). The

fact-finder is the exclusive judge of the credibility of witnesses and of the weight to be

given to their testimony. Anderson v. State, 322 S.W.3d 401, 405 (Tex. App.—Houston

[14th Dist.] 2010, pet. ref’d) (citing Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App.

2008)). Reconciliation of conflicts in the evidence is within the fact-finder’s exclusive

province. Id. (citing Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must

resolve any inconsistencies in the testimony in favor of the verdict. Id. (citing Curry v.

State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)).

B.     Discussion

       Appellant argues that the evidence is insufficient because appellant did not

confess and because no eyewitness testified to the murder. He further contends that


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“[a]ll that is known is that the defendant was in the vicinity earlier[,] until the prosecution

call[ed] a witness who testifie[d] that the defendant admitted murdering the victim.”4

            The jury heard testimony that appellant admitted to committing the murder, and it

was free to believe or disbelieve this testimony. In addition, the jury heard Brisco testify

that he was in close proximity to the shooting when it occurred and that he saw appellant

flee the crime scene immediately after the shooting. The jury also heard testimony that

appellant was searching for Howard-T on the day of the shooting and that appellant and

Howard-T were involved in a heated argument a few days before the shooting. We defer

to the factfinder as the exclusive judge on the credibility of the witnesses, and resolve all

inconsistencies in favor of the verdict. See Anderson, 322 S.W.3d at 405. We therefore

conclude that the evidence is sufficient to support the verdict. See Jackson, 443 U.S. at

319. We overrule appellant’s first issue.

                            III.     PRETRIAL PHOTOGRAPHIC LINEUP

        By his second issue, appellant argues that the trial court erred in denying his

motion to suppress the pretrial photographic lineup and in-court identifications.

Specifically, he complains that the pretrial photographic lineup was impermissibly

suggestive and created a substantial likelihood of irreparable misidentification because

he was the only “person with a full, although light beard . . . .”5


        4
          Appellant does not challenge the credibility of Nelson, the State’s witness who testified to
hearing appellant admit to the murder.
        5
           We construe appellant’s issue to include a challenge to the in-court identification based on
appellant’s reference to the “substantial likelihood of irreparable misidentification,” a phrase associated with
the frequent challenge that an in-court identification is tainted by an impermissibly suggestive pretrial
photographic lineup. See, e.g., Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995) (en banc).
Appellant cites Barley, a case addressing a request to suppress in-court identifications, in support of his
argument. This construction of appellant’s argument corresponds to appellant’s pretrial motion to
suppress, which explicitly stated, “There is a substantial likelihood of misidentification of the Defendant at
                                                       5
A.      Standard of Review

        Pretrial photographic lineup issues are reviewed de novo. See Loserth v. State,

963 S.W.2d 770, 772–73 (Tex. Crim. App. 1998); Guzman v. State, 955 S.W.2d 85,

88–89 (Tex. Crim. App. 1997). The issue is a mixed question of law and fact that does

not turn on an evaluation of credibility and demeanor. See Loserth, 963 S.W.2d at 772;

Guzman, 955 S.W.2d at 89.               Determining the admissibility of in-court identification

involves a two-step analysis: (1) whether the out-of-court identification procedure was

impermissibly suggestive; and (2) whether that suggestive procedure gave rise to a very

substantial likelihood of irreparable misidentification. Simmons v. United States, 390

U.S. 377, 384 (1968); Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995) (en

banc). Each case must be considered on its own facts, and the analysis requires an

examination of the totality of circumstances surrounding the identification. Simmons,

390 U.S. at 384–85. Appellant must prove both elements by clear and convincing

evidence. Barley, 906 S.W.2d at 33–34.

B.      Discussion

        Appellant’s challenge is directed solely at the composition of the photographic

lineup. 6   The photographic lineup consisted of six photographs of dark-complected,

African-American men with close-cropped hair and some facial hair. The photographs




trial as a result of the impermissible procedure.” Regardless, our analysis is the same; we must first
consider whether the photographic lineup was impermissibly suggestive. Compare Barley, 906 S.W.2d at
33 (addressing attempted suppression of in-court identification), with Cain v. State, 315 S.W.3d 43, 48 (Tex.
Crim. App. 2010) (requiring de novo review for mixed questions of law and fact that “do not turn on
credibility and demeanor” in reviewing a trial court’s denial of the defendant’s motion to suppress).
        6
            The manner in which the photograph lineup was presented has not been challenged on appeal.
In that regard, witness testimony shows the lineup was not presented in a suggestive manner.
                                                     6
are all black and white, and three of the subjects have a white shirt and three have a black

shirt.

         Detective Herbert Otis of the Port Arthur Police Department was the officer who

prepared and presented the photograph lineup to Brisco and Antoine. He testified that

the photographs and the position of appellant’s photograph in the lineup were generated

by a computer program. He stated that he inserted appellant’s social security number,

and then he asked the computer to “match with similar photos and the computer

automatically” brought up the other photographs. Detective Otis affirmed that, based on

his training and experience, the initial return produced photographs that were the most

similar to appellant’s photograph that could be achieved with the available database in

the computer program.

         Without any hesitation or prompting by Detective Otis, Brisco and Antoine each

identified appellant from the photographic lineup. According to Brisco, “when I seen the

eyes in the photo lineup, I just, you know, immediately identified with it and I got really

uneasy” because “I’ve had, you know, nightmares about these eyes.” It is noteworthy

that Brisco emphasized the eyes as being appellant’s distinguishing characteristic in view

of appellant’s challenge that the photographic lineup was suggestive because of the

alleged uniqueness of his beard.

         In considering the alleged discrepancies between appellant’s and the others’ facial

hair, we hold the alleged difference was not so great as to be impermissibly suggestive.

See Mallard v. State, 661 S.W.2d 268, 277 (Tex. App.—Fort Worth 1983, no pet.)

(holding photo array was not impermissibly suggestive even though defendant was the

only participant who had facial hair); see also Ramirez v. State, No. 11-01-00230-CR,
                                              7
2002 WL 32344501, at *2 (Tex. App.—Eastland July 25, 2002, no pet.) (mem. op., not

designated for publication) (overruling as irrelevant defendant’s contention that the other

men appearing in the photographic lineup “lacked the distinctive facial hair pattern which

he possessed”). All of the subjects had some form of light facial-hair growth. The fact

that the other men did not have identical features to appellant’s appearance does not

invalidate the lineup. See Dickson v. State, 492 S.W.2d 267, 271 (Tex. Crim. App.

1973); see also Chavez v. State, No. 14-07-00244-CR, 2008 WL 516782, at *3 (Tex.

App.—Houston [14th Dist.] Feb. 28, 2008, no pet.) (mem. op., not designated for

publication). Neither due process nor common sense requires that pictures in a lineup

be individuals whose every feature matches.          See Dickson, 492 S.W.2d at 271.

Physical discrepancies between individual photographs in a lineup are not inherently

impermissibly suggestive. See Williams v. State, 675 S.W.2d 754, 757 (Tex. Crim. App.

1984); see also Stevenson v. State, No. 05-01-000974-CR, 2002 WL 826954, at *3 (Tex.

App.—Dallas May 2, 2002, no pet.) (mem. op., not designated for publication).

       Having held that the pretrial photographic lineup is not impermissibly suggestive,

we need not address the second element regarding whether there was a very substantial

likelihood of irreparable misidentification at trial. We overrule appellant’s second issue.

                     IV. ADMISSION OF AUTOPSY PHOTOGRAPHS

       By his third issue, appellant challenges the trial court’s admission of three autopsy

photographs, State’s Exhibits 25, 26, and 30, over his rule 403 objection. See TEX. R.

EVID. 403. Appellant generally cites case authority, without application, regarding the

mutilation/alteration of a victim so as to enhance the photograph’s gruesomeness.


                                             8
       We review a trial court's determination on the admissibility of evidence for an

abuse of discretion and will only reverse if the decision to admit or exclude the evidence

was arbitrary and falls outside the “zone of reasonable disagreement.” Rodriguez v.

State, 203 S.W.3d 837, 843 (Tex. Crim. App. 2006); see Williams v. State, 301 S.W.3d

675, 690 (Tex. Crim. App. 2009). Rule 403 provides that 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.” TEX. R. EVID. 403. When performing a

rule 403 analysis, the trial court must consider “the host of factors affecting probativeness

. . . and balance those factors against the tendency, if any, that the photographs have to

encourage resolution of material issues on an inappropriate emotional basis.” Salazar v.

State, 38 S.W.3d 141, 152 (Tex. Crim. App. 2001) (quoting Ladd v. State, 3S.W.3d 547,

548 (Tex. Crim. App. 1999)).

       In considering the admissibility of photographs, we consider several factors,

including, without limitation, the number and size of the photographs, whether they are

black and white or color, their gruesomeness, the detail shown, the availability of other

means of proof, the unique circumstances to the case, and “whether the body has been

altered since the crime in some way that might enhance the gruesomeness of the

photographs to the appellant’s detriment.” Shuffield v. State, 189 S.W.3d 782, 787 (Tex.

Crim. App. 2006) (citing Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992));

Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997) (en banc). Autopsy

photographs are generally admissible unless they depict mutilation caused by the

autopsy itself. Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002) (en banc);

Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim. App. 1998).
                                             9
       All three of the complained-of photographs are autopsy photos showing the back

of the victim’s head. The first photo shows the bullet’s entry point, but the bullet hole is

difficult to see because the victim’s hair is covering the site of the wound. The second

photo is a similar picture, but a small portion of the victim’s hair has been shaved around

the bullet’s entry point, so as to better expose the bullet hole in the back of the victim’s

head. Both photos focus on the entrance wound and are not particularly gruesome.

       The third picture is a photo of the victim’s interior cranial cavity, which has been

opened to expose bullet’s pathway through the brain. With respect to this photo, the trial

court did inform the State that it was “very concerned about the photograph that is

gruesome,” but the court then allowed the State an opportunity to elaborate on its

relevance before making a ruling. Doctor Tommy Brown, the Jefferson County forensic

pathologist, testified about the entrance wound and the trajectory of the bullet, after which

the trial court determined the probative value of the photograph outweighed its prejudicial

effect and admitted it into evidence. Although this photo showed the victim’s dissected

cranium, it directly corresponded to Dr. Brown’s testimony regarding the bullet’s entrance

and trajectory and the cause of death. See Salazar, 38 S.W.3d at 151–52; see also

Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999) (en banc) (“Visual

evidence accompanying testimony is most persuasive and often gives the factfinder a

point of comparison against which to test the credibility of the witness and the validity of

his conclusions”).

       The photos are highly probative of the manner of the death. The three 8x10

photos were used in progression, so as to explain where and how the bullet entered the

body; the distance traveled, trajectory, and path of the bullet; the location where the bullet
                                             10
fragments came to rest in the victim’s head; and the mechanism of death. The trial

court’s admission of the photograph, after considering Dr. Brown’s correlative testimony,

was not outside the “zone of reasonable disagreement.” See Rodriguez, 203 S.W.3d at

843. Moreover, the manner of presentation left no danger the jury would attribute the

autopsy incision to appellant’s conduct. See Shuffield, 189 S.W.3d at 787.

       We conclude the probative value of the autopsy photos is not substantially

outweighed by the danger of unfair prejudice or the cumulative or misleading nature of the

evidence.   The trial court did not abuse its discretion by refusing to exclude these

photographs. We overrule appellant’s third issue.

                               V. CONFRONTATION RIGHT

       By his fourth issue, appellant argues that the trial court erred by limiting his

cross-examination of Dr. Brown.      Specifically, appellant’s counsel asked Dr. Brown

whether he observed a tattoo on the victim that said, “Louis Manor 14th Street G.” The

trial court sustained the State’s objection to the question, and appellant contends that the

trial court’s ruling violated his confrontation rights under the federal and state

constitutional right to confront witnesses. See U.S. CONST. amends. VI; TEX. CONST. art.

1, § 10.

       During cross-examination, the State objected to the question’s relevancy and

because it “clearly desired [sic] to inflame the jury against the deceased, and it’s

prejudicial.” Appellant responded by informing the trial court, “I’m merely trying to show

how meticulous the doctor was in his external examination . . . .” Later, the trial court

held a hearing on a bill of exception, during which appellant contended that by sustaining

the State’s objection, the trial court improperly limited appellant’s cross-examination.
                                            11
Appellant reiterated that his only intent underlying the questions was to elicit “the

procedures that [Dr. Brown] used to arrive at the conclusion that he made that this was

death due to a gunshot wound of the head . . . .” The trial court responded:

      [I]n addition to the Court’s rulings [sustaining the State’s objection], the
      Court under Rule 403 is going to additionally find that . . . any probative
      value was substantially outweighed by the danger of unfair prejudice and
      needless presentation as well of [sic] cumulative evidence as this Court
      finds that [the State’s] cross-examination had effectively addressed that
      area and you had explored that area thoroughly without needing, this Court
      felt, the presentation of substantially prejudicial information concerning
      tattoos, which included what this Court drew a fair inference relation to [sic]
      a tattoo involving something that purported to reflect the deceased may
      have been affiliated with a gang.

A.    Applicable Law and Standard of Review

      “A primary interest secured by the Confrontation Clause is the right of

cross-examination.” Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000) (citing

Davis v. Alaska, 415 U.S. 308 (1974)). Confrontation Clause issues are weighed on a

case-by-case basis, and a trial court must balance the probative value of proposed

evidence against the risk that admission might entail. See id. (citations omitted). The

trial court enjoys broad discretion in imposing reasonable limits on cross-examination to

avoid harassment, prejudice, confusion of the issues, endangering the witness, and the

injection of cumulative or collateral evidence.    See id.    The trial court exceeds its

discretion “only when it prohibits a defendant from engaging in otherwise appropriate

cross-examination designed to show a prototypical form of bias on the part of the

witness.” Lagrone v. State, 942 S.W.2d 602, 613 (Tex. Crim. App. 1997) (en banc)

(citing Moody v. State, 827 S.W.2d 875, 891 (Tex. Crim. App. 1992)). We review the trial




                                            12
court’s decision to limit cross-examination under an abuse of discretion standard.

Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009).

B.     Discussion

       The trial court did not abuse its discretion. The information sought did not involve

“a prototypical form of bias” by Dr. Brown, but rather potentially prejudicial information

about the murder victim. Limiting prejudicial information during cross-examination is

within the broad discretion of the trial court. See Lopez, 18 S.W.3d at 222. Moreover,

appellant failed “to show the relevancy of the questions,” as required of the proponent of a

vein of cross-examination. See Carpenter v. State, 979 S.W.2d 633, 634–35 (Tex. Crim.

App. 1998) (en banc); see also Arroyo v. State, 259 S.W.3d 831, 835 (Tex. App.—Tyler

2008, no pet.). Appellant provided no “causal connection” between the presence of a

particular tattoo, which coincidentally sounded gang-related, and the credibility of Dr.

Brown or the thoroughness of his examination. The preclusion of cross-examination

regarding a potentially prejudicial tattoo did not preclude appellant’s ability to otherwise

impeach Dr. Brown or challenge the thoroughness of his forensic examination. We

overrule appellant’s fourth issue.

                                      VI. CONCLUSION

       We affirm the trial court’s judgment.

                                                    GREGORY T. PERKES
                                                    Justice

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

Delivered and filed the
18th day of April, 2013.

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