Opinion issued October 1, 2013.




                                     In The

                            Court of Appeals
                                    For The

                        First District of Texas
                          ———————————
                            NO. 01-12-00338-CR
                          ———————————
                 LESLIE KENNETH HOLTE, II, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 263rd District Court
                          Harris County, Texas
                      Trial Court Case No. 1318785


                        MEMORANDUM OPINION

     A jury found Leslie Kenneth Holte, II, guilty of recklessly causing serious

bodily injury to a child and assessed his punishment at confinement for twenty

years and a fine of $10,000.      Holte contends that the trial court abused its
discretion by admitting into evidence a video recording of the infant complainant,

D.G., made while D.G. was in the hospital. Finding no reversible error, we affirm.

                                   Background

      On the evening of December 17, 2010, D.G.’s mother, Amanda Blanton,

went to work the night shift at the 59 Diner where she was a waitress. Blanton left

D.G. at her apartment, under Holte’s care. At 2:30 a.m., Blanton, who was still at

work, saw that she had received a text message from Holte explaining that D.G.

was hurt. Holte informed Blanton that D.G. had a bruise and a bump on the back

of his head. When Blanton arrived at her apartment, Holte was playing video

games in the living room and D.G. was in his crib. When Blanton lifted D.G., his

body went limp. D.G. had bruises around his eyes, rug burns on his chin and nose,

a red spot in the middle of his forehead, and a large bump on the back of his head.

Holte said that he had dropped D.G. on the carpet.

      After Blanton took D.G. to the nearest hospital, D.G. was taken by life-flight

to Children’s Memorial Hermann Hospital where he underwent emergency

surgery. Holte then told Blanton that he had dropped D.G. twice, rather than once.

D.G. was in a coma for one month after surgery and in the hospital for six months.

He required a second surgery to install a permanent shunt as his spinal fluid would

not drain.




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      Dr. Stephen Fletcher, the Chairman of Pediatric Neurosurgery at Children’s

Memorial Hermann Hospital, performed D.G.’s surgery and testified that D.G. had

suffered an “eggshell fracture” and that more force was required to cause this type

of fracture than would result from an accidental fall, even if D.G. had struck a

linear edge.   Dr. Rebecca Giradet, a pediatrician at The University of Texas

Medical School and the Medical Director for the child abuse team, examined D.G.

and testified that, based on the severity of DG’s brain injury, D.G.’s injuries were

not consistent with two accidental household falls.

      The trial court admitted, without objection, State’s exhibits 6 through 13,

which were photographs showing D.G. in the hospital with several devices and

tubes running to and from his body. State’s exhibit 14, a 17-second video showing

D.G. still in the hospital after he had emerged from his coma, was admitted over

Holte’s objection. Blanton later testified that D.G. could no longer see, swallow,

or say the words he had learned before his injury. Dr. Fletcher testified that D.G.

was permanently injured and will have lifelong learning disabilities.

      On appeal, Holte contends that the trial court abused its discretion by

admitting the video of D.G. because the video’s probative value is substantially

outweighed by the danger of unfair prejudice.




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                                 Rule 403 Challenge

   A. Standard of Review

      We review a trial court’s decision to admit evidence for an abuse of

discretion. See Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006);

Wolfberg v. State, 73 S.W.3d 441, 443 (Tex. App.—Houston [1st Dist.] 2002, pet.

ref’d). A trial court abuses its discretion only if its decision is “so clearly wrong as

to lie outside the zone within which reasonable people might disagree.” Taylor v.

State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008). If the trial court’s decision is

correct on any theory of law applicable to the case, we will uphold the decision.

De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). “When a trial

court further decides not to exclude the evidence, finding that the probative value

of the evidence is not outweighed by the danger of unfair prejudice, this decision

too shall be given deference.” Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim.

App. 2003).

   B. Admissibility of Video

      In his sole point of error, Holte contends that the trial court abused its

discretion by admitting State’s exhibit 14, a video and audio recording of D.G. in

the hospital. Holte maintains that even if the recording is relevant, its probative

value is substantially outweighed by the danger of unfair prejudice because the

video showed D.G. “moaning in pain and discomfort” and the emotional impact of


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the recording threatened the jury’s ability to decide the case on a rational basis.

Holte further maintains that the recording, particularly the audio of D.G.

“moaning,” was unnecessary because the State had an abundance of evidence to

prove serious bodily injury. Holte contends that the fact that he received the

maximum sentence as a probation-eligible defendant, even though the State failed

to show intent, demonstrates that the error in admitting the video was not harmless.

The State responds that the probative value of the video is not substantially

outweighed by the danger of unfair prejudice because the video shows the serious

nature of D.G.’s injuries—an element of the charged offense—and corroborates

Blanton’s testimony. Furthermore, the State argues even if the trial court erred in

admitting the video, the error was harmless.

      Under Rule 403, 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 . . . .” TEX. R. EVID. 403. In conducting a Rule 403

balancing test, courts should consider: (1) the inherent probative force of the

proffered evidence along with (2) the proponent’s need for that evidence against

(3) any tendency of the evidence to suggest decision on an improper basis, (4) any

tendency of the evidence to confuse or distract the jury from the main issues,

(5) any tendency of the evidence to be given undue weight by a jury that has not

been equipped to evaluate its probative force, and (6) the likelihood that


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presentation of the evidence will consume an inordinate amount of time or merely

repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42

(Tex. Crim. App. 2006).

      Under the first factor, we examine the probative value of the evidence.

Gigliobianco, 210 S.W.3d at 641.       The video had probative value because it

demonstrated the seriousness of D.G.’s brain injury insofar as it depicts D.G.’s

inability to focus and loss of vision and motor skills. Videotapes are considered in

the same manner as photographs. See TEX. R. EVID. 1001(a). “Generally, a

photograph is admissible if verbal testimony as to matters depicted in the

photographs is also admissible.” Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim.

App. 2007). After the video was admitted, Blanton testified, without objection,

that once D.G. emerged from his coma, he was no longer able to see, swallow, or

speak words he had previously learned. Because this is what is depicted in the

video, we conclude this factor weighs in favor of admissibility. Gigliobianco, 210

S.W.3d at 641.

      For the second factor, we examine the State’s need for the evidence.

Gigliobianco, 210 S.W.3d at 641. Holte argues that the “State had an abundance

of other evidence to prove serious bodily injury,” making the audio recording of

D.G. moaning unnecessary.         There was other evidence—testimonial and

documentary—regarding D.G.’s serious bodily injury, but the video was the only


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exhibit that visually demonstrated the long-term effects of D.G.’s brain injuries.

See generally Peterson v. State, 137 S.W.3d 739, 746 (Tex. App.—Houston [1st

Dist.] 2004, pet ref’d) (finding contested exhibit probative as it was the only

exhibit that showed victim’s injuries, not covered by bandages, while she was still

alive). The trial court could have reasonably concluded that the video aided the

jury’s understanding of Blanton’s testimony regarding the long-term effects of

D.G.’s injury as it showed D.G.’s diminished ability to see or speak. This factor

weighs in favor of admissibility. Gigliobianco, 210 S.W.3d at 641.

      Under the third factor, we examine the “tendency of the evidence to suggest

decision on an improper basis.” Id. Evidence might have this tendency if “it

arouses the jury’s hostility or sympathy for one side without regard to the logical

probative force of the evidence.” Id. Holte argues that the emotional nature of the

evidence is undeniable and the danger of unfair prejudice is inherent in seeing and

hearing an infant moaning. The State responds that the video is far less graphic

than previously admitted still images of D.G., still bandaged, requiring ventilator

assistance. See Peterson, 137 S.W.3d at 747 (holding evidence admissible and

noting that appellant does not challenge the trial court’s admission into evidence of

several other, more graphic, photographs that depicted the nature and extent of the

child’s burn injuries). When the video was recorded, D.G. was no longer in a

coma, his facial injuries had healed, and his surgical scar was not visible. The


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video has no narration, and the audio recording does not suggest D.G. is crying or

in pain. In short, the recording depicts nothing more emotional or graphic than the

photographs. See Gallo, 239 S.W.3d at 762–63. This factor weighs in favor of

admissibility. Gigliobianco, 210 S.W.3d at 641.

      For the fourth factor, we examine the tendency of the evidence to confuse or

distract the jury from the main issue. Id. “Evidence that consumes an inordinate

amount of time to present or answer, for example, might tend to confuse or distract

the jury from the main issues.” Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim.

App. 2007). Here, the video of D.G. was 17 seconds long, showed the child in the

healing stages of his recovery, and related directly to an element of the charged

offense. See Gigliobianco, 210 S.W.3d at 642 (holding that breath test results

related directly to the charged offense, so the jury could not possibly have been

distracted, regardless of the time required to present the results). This factor

weighs in favor of admissibility. Id. at 641.

      Under the fifth factor, we weigh “any tendency of the evidence to be given

undue weight by a jury that has not been equipped to evaluate the probative force

of the evidence.” Id. Here, the video was presented to depict D.G.’s long-term

injuries that could not be adequately conveyed in a photograph—specifically his

inability to focus or control eye movement. The evidence was not of a technical or

scientific nature; rather, it concerned a matter “comprehensible by laypeople.”


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Gaytan v. State, 331 S.W.3d 218, 228 (Tex. App.—Austin 2011, pet. ref’d). The

trial court could have reasonably concluded that the video did not have any

tendency to be given undue weight by the jury. This factor weighs in favor of

admissibility. Gigliobianco, 210 S.W.3d at 641.

      Finally, under the sixth factor we consider the time required to develop the

evidence and whether the video merely repeated evidence already admitted. Id. at

641–42. The video lasted 17 seconds and was not repetitive as it was the only

exhibit that was able to show D.G’s loss of eye control. See generally Peterson,

137 S.W.3d at 746 (finding contested exhibit probative as it was the only exhibit

that showed victim’s injuries, not covered by bandages, while she was still alive).

Thus, its presentation did not “consume an inordinate amount of time or merely

repeat evidence already admitted.” Gigliobianco, 210 S.W.3d at 641–42. This

factor weighs in favor of admissibility. Id. at 642.

      Balancing all of the factors, we conclude that the trial court did not abuse its

discretion in admitting State’s exhibit 14.

      We overrule Holte’s sole point of error.




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                                   Conclusion

      We affirm the trial court’s judgment.



                                              Rebeca Huddle
                                              Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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




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