                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                       No. 07-13-00299-CR


                        SAMUEL ANTHONY CISNEROS, APPELLANT

                                               V.

                             THE STATE OF TEXAS, APPELLEE

                              On Appeal from the 64th District Court
                                       Hale County, Texas
             Trial Court No. A19256-1209, Honorable Robert W. Kinkaid, Jr., Presiding

                                         June 18, 2015

                               MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


         Presenting two issues, appellant Samuel Anthony Cisneros appeals his sentence

of sixty years’ confinement in prison for murder.1 We will affirm the judgment of the trial

court.


         1
          See TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). With an exception not
applicable to this case, the offense of murder is a first degree felony. TEX. PENAL CODE
ANN. § 19.02(c) (West 2011). A first degree felony is punishable by imprisonment for
life or for any term of not more than 99 years or less than 5 years and by a fine not to
exceed $ 10,000. TEX. PENAL CODE ANN. § 12.32(a),(b) (West 2011).
                                       Background


       Because appellant does not challenge the sufficiency of the evidence, we will

state only those facts necessary for the disposition of the appeal. Around midnight on

April 27, 2012, Jose Perez’s pickup truck was parked in the driveway of his home. He

and Asuncion Loredo sat on the tailgate drinking beer. Apparently a long-standing

dissension existed between the families of Perez and appellant. As appellant walked

past, he and Perez exchanged words. Appellant retrieved a 12-guage shotgun from his

home and returned to the driveway of the Perez residence. There he shot Perez and

Loredo. Loredo’s injuries were fatal while Perez recovered. Appellant was indicted for

Loredo’s murder and the aggravated assault with a deadly weapon of Perez. 2


       Appellant plead guilty to both charges and punishment was tried by jury. During

trial, the State offered crime scene and autopsy photographs of Loredo’s body. Over

appellant’s objections, some of the pictures were admitted into evidence. Following the

conclusion of evidence, the jury assessed punishment as noted. The judgment includes

a deadly weapon finding.


       Appellant filed a motion for new trial asserting the jury improperly considered

parole in its deliberation. Supporting the motion was the affidavit of appellant’s attorney

which, in relevant part, provides:

       Defendant suggests that the Jury considered when Parole was going to be
       afforded to the Defendant as a rational (sic) for compromising on the
       sentenced (sic) reached. Counsel for Defendant spoke to a Juror who
       indicated that he was stuck on a certain amount of years, but after

       2
       The jury assessed punishment for the aggravated assault with a deadly weapon
of Perez at two years’ confinement in prison. Appellant does not challenge this
sentence on appeal.

                                            2
       considering that the Defendant would be eligible for parole after 10 years,
       by adding another 20, he was persuaded to agree to the additional 20
       years.
       The motion was overruled by operation of law.


                                      Analysis


       By his first issue appellant argues the trial court abused its discretion by failing to

conduct a hearing on his motion for new trial.


       We review a trial court’s decision not to conduct a hearing on a motion for new

trial for an abuse of discretion. Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App.

2009). “Our review, however, is limited to the trial judge’s determination of whether the

defendant has raised grounds that are both undeterminable from the record and

reasonable, meaning they could entitle the defendant to relief.” Id.


       Discussion of parole by the jury during its deliberation is not proper. Colburn v.

State, 966 S.W.2d 511, 519 (Tex. Crim. App. 1998).               However, this impropriety

constitutes reversible error only on a showing by the defendant of: (1) a misstatement of

the law; (2) asserted as a fact; (3) by one professing knowledge of the law; (4) on which

other jurors rely; and (5) who for that reason changed their vote to a harsher

punishment. Sneed v. State, 670 S.W.2d 262, 266 (Tex. Crim. App. 1984). Satisfying

this standard also establishes harm because the fifth prong requires proof that a juror

changed his vote to a harsher punishment. Salazar v. State, 38 S.W.3d 141, 147 (Tex.

Crim. App. 2001); TEX. R. APP. P. 44.2.


       In 1998, rule of evidence 606(b) was amended to limit the testimony of a juror, in

an inquiry into the validity of a verdict, to two topics: outside influences that affected the

                                              3
juror’s decision or rebutting a claim that the juror was not qualified. 3 Hines v. State, 3

S.W.3d 618, 621 (Tex. App.—Texarkana 1999, pet. refused). Both the Supreme Court

of Texas and the Court of Criminal Appeals approved the amendment.               Id.   “The

limitation on juror testimony in post-trial proceedings is intended to encourage open

discussion among jurors during deliberations, to promote the finality of judgments, and

to protect jurors from harassment by unhappy litigants seeking grounds for a new trial.”

Hicks v. State, 15 S.W.3d 626, 630 (Tex. App.—Houston [14th Dist.] 2000, pet.

refused). As applied by rule 606(b) an “outside influence” is “something originating from

a source outside of the jury room and other than from the jurors themselves.”

McQuarrie v. State, 380 S.W.3d 145, 154 (Tex. Crim. App. 2012).


      Appellant’s motion for new trial reported only that counsel had information from a

juror concerning events during deliberation. Relying on Salazar, 38 S.W.3d at 147, and

Buentello v. State, 826 S.W.2d 610 (Tex. Crim. App. 1992), appellant argues his motion

should be considered without the limitation on juror testimony imposed by rule 606(b).

We disagree.     Buentello dealt with former rule of criminal evidence 606(b), which



      3
          Rule of Evidence 606(b) provides:

      Upon an inquiry into the validity of a verdict or indictment, a juror may not
      testify as to any matter or statement occurring during the jury’s
      deliberations, or to the effect of anything on any juror’s mind or emotions
      or mental processes, as influencing any juror’s assent to or dissent from
      the verdict or indictment. Nor may a juror’s affidavit or any statement by a
      juror concerning any matter about which the juror would be precluded from
      testifying be admitted in evidence for any of these purposes. However, a
      juror may testify: (1) whether any outside influence was improperly
      brought to bear upon any juror; or (2) to rebut a claim that the juror was
      not qualified to serve.

TEX. R. EVID. 606(b).

                                              4
contained a broad exception to the limitation on juror testimony. 4 The exception was

deleted, however, with the 1998 merger of the civil and criminal rules of evidence. Id.


       The 1998 amendment to rule 606(b) has caused some courts of appeals to

question the continued viability of the five-element Sneed analysis, at least in a case

lacking evidence that an outside influence improperly came to bear on a juror. See

Melvin v. State, 2010 Tex. App. LEXIS 2973, at *4 (Tex. App.—Waco Apr. 21, 2010,

pet. refused) (noting “Sneed is no longer viable in light of Rule 606(b)”); Hicks, 15

S.W.3d at 630 (“The 1998 version of Rule 606(b) apparently wipes out Buentello, and

all of its progeny”); Hart v. State, 15 S.W.3d 117, 123 (Tex. App.—Texarkana 2000, pet.

refused) (stating that because of the 1998 amendment to rule 606(b), Buentello and

Sneed are abrogated”). But the matter has not yet been addressed expressly by the

Court of Criminal Appeals.5 Melvin, 2010 Tex. App. LEXIS 2973, at *4.


       The analysis set out in Sneed may still have application under proper proof. See

Salazar, 38 S.W.3d at 147 (“Sneed is still good law . . . .”). In any event, however, proof

coming through testimony of a juror must be admissible under rule 606(b). Hicks, 15

S.W.3d at 630 (explaining that while amended rule 606(b) makes proving jury

misconduct more difficult it does not preclude proof of jury misconduct by other means

       4
         The exception allowed a juror to testify “as to any matter relevant to the validity
of the verdict or indictment.” McQuarrie, 380 S.W.3d at 158 (Keller, P.J., dissenting)
(noting the exception “swallowed the rule” limiting juror testimony).
       5
         In Salazar, decided after rule 606(b) was amended, the court relied on
appellate rule 21.3(f) and (g) to apply the Sneed factors. But appellate rule 21.3(f) and
(g) do not define the scope of juror testimony at a motion for new trial hearing. The
court in Salazar did not discuss the effect of amended rule 606(b) because the State
and the defendant withdrew their objections to juror testimony about discussion of
parole laws during deliberation. 38 S.W.3d at 147. Thus the Court of Criminal Appeals
considered this evidence in determining whether reversible error occurred. Id.

                                             5
such as by the testimony of a nonjuror having personal knowledge); cf. White v. State,

225 S.W.3d 571, 574-575 (Tex. Crim. App. 2007) (citing Tanner v. United States, 483

U.S. 107, 127, 107 S. Ct. 2739, 97 L. Ed. 2d 90 (1987)) (“The United States Supreme

Court has held that, while juror testimony is barred under Rule 606(b), ‘a party may

seek to impeach the verdict by non-juror evidence of misconduct’”).


       Appellant’s motion for new trial and affidavit raised a matter not determinable

from the record. But the trial court would have been within its discretion to find that the

motion did not establish grounds showing appellant could be entitled to relief. Smith,

286 S.W.3d at 345. As noted, the substance of counsel’s affidavit refers only to proof

that would be provided by the testimony of the juror referred to. The affidavit does not

mention or even intimate that some outside influence came to bear on a juror, or that

proof of any jury misconduct might be possible despite the limitation of rule 606(b).

Accordingly, the trial court did not abuse its discretion by not conducting a hearing on

appellant’s motion for new trial. See Smith, 286 S.W.3d at 340 n.23 (stating, “in cases

in which one requirement is lacking, the trial judge may still, in his discretion, conduct a

hearing before granting or denying the motion. It would never, however, amount to an

abuse of discretion not to” (emphasis in original)).


       We overrule appellant’s first issue.


       By his second issue appellant argues the trial court abused its discretion by

admitting “prejudicial and gruesome” crime scene and autopsy photographs.              The

photographs are in color, and are 8 1/2 by 11 inches in size.




                                              6
      Appellant objected on grounds of relevance and rule of evidence 403 to

photographs from the crime scene marked as State’s Exhibits 9, 11, 12, and 13. These

photographs, with accompanying explanatory testimony, were introduced through the

crime scene investigator. Exhibit nine depicts the area at the rear of Perez’s pickup and

shows Loredo’s legs and lower body resting on the pickup tailgate with four spent

shotgun shells scattered on the driveway in the foreground. Testimony indicated Exhibit

12 is a close-up of Exhibit 11, which depicts the Perez house, the pickup in the driveway

with Loredo’s body lying on the tailgate, and a large container of beer on the driveway.

Exhibit 13 depicts the upper part of Loredo’s body resting partially on the tailgate and

partially in the bed of the pickup. To a degree, each of Loredo’s three wounds is visible.

Near the body in the pickup bed are a straw hat and several beer cans. The court

sustained appellant’s objection to exhibit 12 and admitted exhibits 9, 11, and 13.


      Appellant objected to the autopsy photographs, marked as State’s Exhibits 14

through 17, on the grounds that they were cumulative of the pathologist’s testimony,

they lacked probative value because appellant plead guilty, and their prejudicial effect

“far outweighs” any probative value. Exhibits 14 and 15 show wounds to Loredo’s eye

and chest respectively. The photograph of Loredo’s eye wound is a close-up and his

chest is bare in the photograph depicting his chest wound. Exhibit 16, depicts the back

of Loredo’s head, showing no exit wound. Exhibit 17 is a close-up photograph of a

gunshot wound to Loredo’s lower left abdomen. A pellet is visible on the “superficial

skin.” The court overruled appellant’s objections and admitted all four photographs.

The pathologist testified in some detail regarding each of the autopsy photographs.




                                            7
       The decision to admit a photograph is within the discretion of the trial court.

Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997). If the trial court’s ruling

is within the zone of reasonable disagreement, there is no abuse of discretion. Prible v.

State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005).


       Admission of punishment phase evidence is addressed by section 3 of article

37.07 of the Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3

(West Supp. 2014).     “Rule 401 is helpful for determining what evidence should be

admitted under Article 37.07, § 3(a), but it is not a perfect fit in the punishment

context. . . . Determining what is relevant at the punishment stage is a question of what

is helpful to the jury in determining the appropriate sentence for a particular defendant in

a particular case.” Ex parte Lane, 303 S.W.3d 702, 713 (Tex. Crim. App. 2009) (citation

and internal quotation marks omitted). Whether punishment is assessed by the trial

judge or the jury, the circumstances of the offense for which the defendant is tried may

be considered. Ewings v. State, No. 07-08-00132-CR, 2009 Tex. App. LEXIS 1228, at

*7 (Tex. App.—Amarillo Feb. 23, 2009, no pet) (mem. op., not designated for

publication); TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West 2014).             The

introduction of evidence by the State during the punishment phase of trial is not

restricted by the entry of a guilty plea by the defendant or an admission of facts sought

to be proved by the State. Ewings, 2009 Tex. App. LEXIS 1228, at *7 (citing York v.

State, 566 S.W.2d 936, 938 (Tex. Crim. App. 1978)).


       Rule of Evidence 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

                                             8
needless presentation of cumulative evidence.” TEX. R. EVID. 403. Following a rule 403

objection, the trial court “must weigh the probativeness of the evidence to see if it is

substantially outweighed by its potential for unfair prejudice, confusion of the issues,

misleading the jury, undue delay, or needless presentation of cumulative evidence.”

Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). Rule 403 favors the

admission of relevant evidence and carries a presumption that relevant evidence will be

more probative than prejudicial. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App.

1996).


         A photograph is generally admissible if verbal testimony concerning the matter

depicted is admissible. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007).

“When there are two or more pictures that depict the same thing but from different

perspectives, the jury can gain information it might not otherwise have when viewing

other pictures from other perspectives.” Bacey v. State, 990 S.W.2d 319, 326 (Tex.

App.—Texarkana 1999, pet. refused).


         Photographs of the crime scene and autopsy are relevant to show the manner

and means of death thus aiding the trier of fact’s understanding of the circumstances of

death. See Moreno v. State, 1 S.W.3d 846, 857 (Tex. App.—Corpus Christi 1999, pet.

refused) (autopsy); Williams, 958 S.W.2d at 195 (crime scene). Autopsy photographs

are generally admissible unless they depict mutilation of the victim caused by the

autopsy itself. Williams v. State, 301 S.W.3d 675, 690 (Tex. Crim. App. 2009). “A trial

court does not err merely because it admits into evidence photographs which are

gruesome.” Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995); see Gallo v.

State, 239 S.W.3d 757, 763 (Tex. Crim. App. 2007).

                                            9
       Here, the crime scene and autopsy photographs are probative of the

circumstances of Loredo’s death. They depict the position of his body at the crime

scene and the location and angle of wounds the pathologist observed at the autopsy.

Each photograph was discussed in the testimony of the sponsoring witness, but the

presentation did not consume a disproportionate amount of trial time. Nothing indicates

the crime scene photographs were staged and the autopsy photographs were made

before alteration of the body by the procedure.        We fail to see how the jury by

considering the photographs with the explanatory testimony of their sponsoring

witnesses could have been impressed in some irrational, yet indelible way.         While

unpleasant to view, the photographs are not overly gruesome or gory. Any disturbing

attribute of these photographs, moreover, results directly from the injuries caused by

appellant. See Sonnier, 913 S.W.2d at 519 (“[W]hen the power 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”);

Harris v. State, No. AP-76,810, 2014 Tex. Crim. App. Unpub. LEXIS 517 (Tex. Crim.

App. May 21, 2014) (citing Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App.

1997)) (“If the autopsy photographs simply depict the injuries caused by the defendant’s

conduct, any gruesomeness cannot be called ‘unfairly’ prejudicial to the defendant”).


       We find the trial court acted within its discretion to admit the crime scene and

autopsy photographs challenged by appellant. We overrule appellant’s second issue

and, having overruled both issues, affirm the judgment of the trial court.


                                                 James T. Campbell
                                                     Justice
Do not publish.

                                            10
