                                   NO. 07-01-0408-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                   JULY 26, 2002
                          ______________________________

                                ANTHONY RAY GREEN,

                                                        Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                Appellee
                        _________________________________

             FROM THE 351ST DISTRICT COURT OF HARRIS COUNTY;

                 NO. 874,096; HON. MARK KENT ELLIS, PRESIDING
                       _______________________________

Before BOYD, C.J., QUINN and REAVIS, J.J.

       Anthony Ray Green (appellant) appeals his conviction for burglary of a habitation

with intent to commit aggravated assault. His sole point of error involves the trial court’s

refusal to exclude a photograph of Raymond Green, appellant’s uncle and one of the

victims of the assault. The photograph depicts Raymond’s nude upper torso, i.e. stomach,

chest, arms and head, as it appeared after he died of complications from the assault. Also

depicted are a sutured embalmer’s incision measuring approximately four inches on the

neck of the decedent and a hole in his abdomen (measuring one-half inch) through which

the decedent was fed before dying. According to appellant, the picture was inadmissible
because its prejudicial effect substantially outweighed its probative value. We overrule the

point and affirm.

                                        Background

        According to evidence of record, appellant discovered his wife, Judy Green (Judy),

at Raymond’s house late one night. Appellant was armed with a metal object akin to a tire

iron at the time and gained entry into the abode. He then proceeded to a bedroom, found

Raymond asleep, awakened him, and then proceeded to beat his uncle for several minutes

with the object. Judy attempted to intervene. When she did, Raymond attacked her as

well.

        Various blows struck Raymond in the head, resulting in his suffering from

hemorrhage and stroke. Raymond ultimately regressed into a vegetative state and died

after the passage of approximately five months.

        The State subsequently indicted appellant for burglary of a habitation with the intent

to commit aggravated assault. At trial, the picture of Raymond described in the opening

paragraph of this opinion was offered and received into evidence, over appellant’s

objection.

                                         Sole Issue

        Appellant contends the court reversibly erred in overruling his objection that the

picture was inadmissible since its prejudicial effect substantially outweighed its probative

value. We disagree.




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       Standard of Review

       Whether the trial court erred in admitting evidence depends upon whether it abused

its discretion. Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim. App. 1998). The latter is

abused when the trial court’s decision falls outside the zone of reasonable disagreement.

Contreras v. State, 73 S.W.3d 314, 321 (Tex. App.–-Amarillo 2001, pet. ref’d).

       Next, Texas Rule of Evidence 403 states that “[a]lthough 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

needless presentation of cumulative evidence.” This rule encompasses all categories of

evidence, including photographs. And, when a photo is involved, the Court of Criminal

Appeals has conditioned its admissibility upon determination that it has some probative

value which is not substantially outweighed by its inflammatory nature. Rojas v. State, 986

S.W.2d at 249. Simply put, it cannot be so horrific or appalling that it would likely cause

a juror of normal sensitivity to have difficulty rationally deciding the critical issues of the

case after viewing it. Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992);

Woods v. State, 14 S.W.3d 445, 452 (Tex. App.--Fort Worth 2000, no pet.). Furthermore,

various indicia are helpful in making this determination. They include such things as the

number of pictures being offered, their gruesomeness, their detail, their size, whether they

are black and white or in color, whether they are close-up shots, whether the body is naked

or clothed, the availability of other means of proof, and other circumstances unique to the

individual case. Rojas v. State, 986 S.W.2d at 249; Long v. State, 823 S.W.2d 259, 272




                                              3
(Tex. Crim. App. 1991). We now consider these indicia in determining whether the trial

court erred at bar.

       Application of Standard

       As previously mentioned, the one photo involved depicts Raymond’s nude upper

torso, i.e. stomach, chest, arms and head, as it appeared after partial embalmment but

before autopsy. It is rather small (no bigger than three by five inches) and appears in the

record to be black and white; as such one could reasonable say that it does not present

the object captured in great detail. Indeed, aside from the appearance of the sutured

incision on the neck and the half inch hole in the abdomen, the visage is otherwise an

unremarkable picture of the upper torso of an elderly dead man. There is no blood,

dismemberment, disfigurement, mutilation, bruising, scars or like physical characteristic

apparent other than the incision and hole. Nor is the photo a closeup of the body or any

wound or physical characteristic appearing on same. And, as for the hole and incision,

care was taken to explain to the jury that neither were created at the hands of the appellant

but resulted from the embalming process and attempts to feed the decedent while alive.

       Yet, that Raymond had to be fed through a tube inserted in his abdominal cavity

after the beating highlights the aggravated nature of appellant’s entry into the home and

attack upon the decedent. See Fletcher v. State, 960 S.W.2d 694, 700-01 (Tex. App.--

Tyler 1997, no pet.) (noting that the photo of the deceased was relevant because it

“illustrated, though graphically, one of the elements of the offense — that the robbery was

‘aggravated’”). Again, appellant was charged with burglary of a habitation with intent to

commit aggravated assault. To the extent that “aggravated assault” consists of an assault



                                             4
causing “serious bodily injury to another,” TEX . PENAL CODE ANN . §22.02(a)(1) (Vernon

1994), one cannot reasonably deny that suffering injury that requires one to eat through

a abdominal tube evinces serious bodily injury. Nor can one reasonably deny that a

beating which ultimately ends in the death of the recipient falls within that category as well;

indeed, appellant admits as much in his brief when conceding that the picture had

relevance or probative value.

       In sum, no one disputes that the sole picture before us had probative value.

Furthermore, the image captured therein is no more (but far less) graphic than the

thoracostomy incision involved in Contreras v. State, supra, or the visage of an elderly man

lying dead in a street with a gun shot wound to the face in Fletcher v. State, supra. And,

in each of those cases, the reviewing court found no error in the admission of the picture.

See Dams v. State, 872 S.W.2d 325, 327 (Tex. App.–Beaumont 1994, no pet.) (holding

that it was not error to admit an autopsy photo depicting an incision). Thus, upon applying

the facts of this case to the indicia itemized in Rojas, we do not find that the photo at bar

was “so horrifying or appalling that a juror of normal sensitivity would necessarily encounter

difficulty rationally deciding the critical issues of the case after viewing it.” Woods v. State,

14 S.W.3d at 452. Nor did the trial court’s decision to overrule appellant’s Rule 403

objection fall outside the zone of reasonable disagreement or constitute abused discretion.

       Accordingly, the judgment affirmed.


                                                                   Brian Quinn
                                                                     Justice


Do not publish.


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