                IN THE COURT OF CRIMINAL APPEALS
                            OF TEXAS

                                                   No. AP-75,539


                                       STEVEN LYNN LONG, Appellant

                                                        v.

                                                THE STATE OF TEXAS


                              Direct Appeal from Case No. F05-52918-R of the
                                        265th Judicial District Court,
                                               Dallas County


                   WOMACK , J., delivered the opinion for a unanimous Court.


       Steven Lynn Long appeals from his conviction for the May 21, 2005, capital murder of

Kaitlyn Smith.1 A jury found the appellant guilty, and its answers to the special issues in Code of

Criminal Procedure Article 37.071, sections 2(b) and 2(e), required the trial court to sentence the




       1
           See P EN AL C O D E § 19.03(a)(2).
                                                                                                                   Long - 2

appellant to death.2 Appeal to this court is mandatory.3 After reviewing the appellant’s six points

of error, we find them to be without merit. Consequently, we affirm the trial court’s judgment

and sentence of death.

                                                                 Facts

         Kaitlyn Smith and her mother and stepfather lived in a trailer park in Dallas County.

Kenneth Edwards, Deborah Dawn Porter, and her eight-year-old daughter Savanah lived in a

trailer across the street, and the appellant had recently moved in with them.

         On May 20, 2005, Kaitlyn’s parents hosted a party. The guests included the appellant,

Edwards, Porter, and several others. During the party, Kaitlyn’s mother agreed that Kaitlyn could

spend the night with Savanah at her trailer across the street. Savanah’s mother and the appellant

were the last guests to leave the party. When they got back to the trailer, Savanah’s mother asked

the appellant to check on the girls. He reported that they were asleep. Savanah’s mother went to

bed.

         In the morning, Savanah’s mother checked on the girls and discovered that Kaitlyn was

missing. Once it became apparent that Kaitlyn had not returned to her own trailer, a full-blown

search of the trailer park ensued. Kaitlyn’s grandfather soon found her body, wrapped partially in

trash bags, underneath a vacant trailer. The appellant became a suspect, and later that evening,

homicide detectives secured his confession to the rape and murder of Kaitlyn Smith.




         2
          See C O D E C RIM . P RO C . art. 37.071, § 2(g). Unless otherwise indicated, all references to Articles refer to
the Code of Criminal Procedure.

         3
             See C O D E C RIM . P RO C . art. 37.071, § 2(h).
                                                                                                             Long - 3

     I. Did the trial court’s jury instructions violate the appellant’s constitutional rights?

         In his first point of error, the appellant contends that the trial court’s instructions on the

second special issue4 at the punishment phase of his trial violated the Fifth, Eighth, and

Fourteenth Amendments of the United States Constitution.5 The jury instructions regarding the

second special issue, in pertinent part, were as follows:

                In deliberating on your answer to Special Issue No. 2, you are instructed that
         you may not answer Special Issue No. 2 “No” unless the jury agrees unanimously,
         and you may not answer Special Issue No. 2 “Yes” unless 10 or more members of the
         jury agree. The members of the jury need not agree on what particular evidence
         supports an affirmative answer to Special Issue No. 2. In arriving at your answer, you
         shall consider mitigating evidence to be evidence that a juror might regard as
         reducing the defendant’s moral blameworthiness.
                You are further instructed that if the jury returns an affirmative finding on
         Special Issue No. 1 and a negative finding on Special Issue No. 2, the Court shall
         sentence the defendant to death. If the jury returns a negative finding on Special Issue
         No. 1 or an affirmative finding on Special Issue No. 2, the Court shall sentence the
         defendant to confinement for life in the Institutional Division of the Texas
         Department of Criminal Justice.

The appellant argues specifically that these instructions (1) prevented the jury from giving due

consideration to mitigating evidence in violation of Mills v. Maryland;6 (2) undermined the jury’s

sense of responsibility for imposing a death sentence, in violation of the Eighth Amendment, and

rendered the sentencing proceeding so unfair as to deny the appellant due process; (3) failed to

assign to the State the burden to prove beyond a reasonable doubt that a death sentence was

         4
            The trial court submitted Special Issue Two to the jury as follows: “Do you find, taking into consideration
all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the
personal moral culpability of the defendant, that there is a sufficient mitigating circumstance or circumstances to
warrant that a sentence of life imprisonment rather than a death sentence be imposed?”

         5
           The appellant’s point of error also claimed that the indictment contained the same constitutional violations
as the jury instructions. However, his brief addresses only the jury charge, and he provides no separate argument or
authority to support the allegation regarding the indictment. Therefore, we consider only the jury instructions here.
See Salazar v. State, 38 S.W . 3d 141, 147 (Tex. Cr. App. 2001); R. A PP . P. 38.1(h).

         6
             Mills v. Maryland, 486 U.S. 367 (1988).
                                                                                                       Long - 4

merited, thereby denying the appellant due process; and (4) as regards the mitigation issue, were

excessively vague, resulting in arbitrary and capricious sentencing patterns, in violation of the

Eighth Amendment and the Due Process Clause of the Fourteenth Amendment.

        In his first and second subissues, the appellant urges that the jury instructions violated the

tenets of Mills. He argues that the jury instructions inaccurately stated the law by giving the

impression that, in order to impose a life sentence instead of death, ten jurors needed to answer

the second special issue affirmatively. The appellant reasons that the instructions thus misled the

jury, such that a juror would have believed that she could not give effect to mitigating evidence

without nine other jurors joining her. The instructions therefore unconstitutionally minimized

each juror’s responsibility for imposing a death sentence, especially given that jurors were

repeatedly told of the gravity of their decision. The inaccuracy, he maintains, rendered the

sentencing proceeding so unfair that the imposition of the death penalty amounted to a denial of

due process, in violation of the Eighth and Fourteenth Amendments to the Constitution.

        This court has consistently rejected similar challenges and upheld the constitutionality of

the instructions at issue, known as the “10-12 rule.”7 We find nothing in the appellant’s

arguments to alter our decision here. We therefore reject the appellant’s contention.

        In his third subissue, the appellant argues that the jury instructions violated his due-

process rights by failing to place on the State the burden of proving the mitigation issue beyond a

reasonable doubt. He argues that the due-process requirement that every fact necessary to

constitute a crime be proved beyond a reasonable doubt extends to “all elements that result in


        7
          See, e.g., Prystash v. State, 3 S.W .3d 522, 536 (Tex. Cr. App. 1999); McFarland v. State, 928 S.W .2d
482, 519-20 (Tex. Cr. App. 1996), overruled on other grounds; Lawton v. State, 913 S.W .2d 542, 558-59 (Tex. Cr.
App. 1995).
                                                                                                         Long - 5

imposition of a penalty of death.” He relies for support on Apprendi v. New Jersey8 and Ring v.

Arizona.9 In Apprendi, the Supreme Court held, “Other than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.”10 The appellant contends that the

mitigation issue falls within this mandate and therefore warrants a jury instruction that the State

bears the burden to prove it beyond a reasonable doubt.

        This court has previously rejected such a claim.11 Apprendi and Ring apply only to facts

that increase the penalty beyond the maximum penalty authorized by statute.12 Because the

maximum statutory penalty under Article 37.071 is death, and the jury’s answer to the mitigation

issue therefore cannot increase the penalty beyond the maximum the statute allows, Apprendi is

inapplicable to the mitigation special issue.13 Furthermore, we have held that neither party bears

the burden of proof as to the mitigation issue, and the holding in Apprendi does not affect that

decision.14 We reject the appellant’s argument.




        8
            530 U.S. 466 (2000).

        9
            536 U.S. 584 (2002).

        10
             Apprendi, 530 U.S., at 490.

        11
           See Blue v. State, 125 S.W .3d 491, 501 (Tex. Cr. App. 2003); Resendiz v. State, 112 S.W .3d 541, 550
(Tex. Cr. App. 2003).

        12
             Ibid.

        13
             Ibid.

        14
             Ibid.
                                                                                                                 Long - 6

         In his final subissue, the appellant contends that the jury instructions run afoul of the

Supreme Court’s requirement, as expressed in Furman v. Georgia,15 that the death penalty be

imposed in a manner that is not arbitrary and capricious. He argues that the definition of

“mitigating evidence” in Article 37.07116 limits a jury to considering evidence only of a capital

defendant’s moral culpability or blameworthiness and prevents its consideration of positive

character traits. Cumulatively, he claims, the jury instructions’ inaccurate statement of law with

regard to the “10-12 rule,” their failure to assign a burden of proof or state the standard for that

burden, and a limited statutory definition of “mitigating evidence” cumulatively rendered the

instructions arbitrary and capricious, resulting in the appellant’s death sentence being “wantonly

and freakishly” applied, in violation of the Eighth Amendment and Due Process Clause.

         We have previously decided the issue regarding the definition of “mitigating evidence”

adversely to the appellant,17 and we reject it here as well. We also have previously overruled a

point of error, similar to the appellant’s, regarding the cumulative effect of jury charge errors.18

         Because we reject each of the appellant’s arguments regarding the constitutionality of the

jury instructions on the mitigation issue, we overrule his first point of error.


         15
              408 U.S. 238 (1972).

         16
           Article 37.071, § 2(f)(4) defines “mitigating evidence” as “evidence that a juror might regard as reducing
the defendant’s moral blameworthiness.”

         17
             See Cantu v. State, 939 S.W .2d 627, 648-49 (Tex. Cr. App. 1997). (“There is no evidence that must be
viewed by a juror as being per se mitigating. Instead, jurors must individually determine what evidence, if any,
mitigates against the imposition of the death penalty and what weight, if any, to give that evidence in its
consideration. Article 37.071 § 2(e) yields further support to this interpretation in that it requires the court to instruct
the jury to take into consideration ‘all of the evidence, including the circumstances of the offense, the defendant's
character and background, and the personal moral culpability of the defendant’ in determining whether sufficient
mitigating circumstances exist to warrant a life sentence.” (Emphasis added in Cantu.))

         18
           See Chamberlain v. State, 998 S.W .2d 230, 238 (Tex. Cr. App. 1999). (“[W ]e are aware of no authority
holding that non-errors may in their cumulative effect cause error.”)
                                                                                                                  Long - 7

      II. Did the trial court err in instructing the jury on the definition of “probability”?

         In his second point of error, the appellant claims that the trial court violated his due-

process rights and his Eighth Amendment right to freedom from cruel and unusual punishment

by failing to instruct the jury on the definition of the word “probability” as it was used in Special

Issue One.19 He argues that the lack of a definition rendered the term unconstitutionally vague

and “violated the constitutional requirement that each statutory aggravating circumstance

genuinely narrow the class of persons eligible for the death penalty.” This court has previously

rejected this identical claim and said that well-settled law requires no such definition in the jury

charge.20 We overrule the appellant’s second point of error.

              III. Was the evidence legally sufficient to support future dangerousness?

         In his third point of error, the appellant challenges the legal sufficiency of the evidence

supporting the jury’s affirmative answer to the first special issue concerning the appellant’s

future dangerousness.21

         When determining whether a defendant will pose a continuing threat to society, a jury

may consider many factors.22 Of these factors, the circumstances of the capital offense itself “can


         19
            The trial court submitted Special Issue One to the jury as follows: “Do you find from the evidence
beyond a reasonable doubt that there is a probability that the defendant, Steven Lynn Long, would commit criminal
acts of violence that would constitute a continuing threat to society?” See C O DE C RIM . P RO C . art. 37.071, § 2(b)(1).

         20
              See Chamberlain, 998 S.W .2d, at 237-38; King v. State, 553 S.W .2d 105, 107 (Tex. Cr. App. 1977).

         21
              See supra note 19.

         22
            The factors a jury may consider include, but are not limited to: (1) the circumstances of the capital
offense, including the defendant’s state of mind and whether he was working alone or with other parties; (2) the
calculated nature of the defendant’s acts; (3) the forethought and deliberateness exhibited by the crime’s execution;
(4) the existence of a prior criminal record, and the severity of the prior crimes; (5) the defendant's age and personal
circumstances at the time of the offense; (6) whether the defendant was acting under duress or the domination of
another at the time of the offense; (7) psychiatric evidence; and (8) character evidence. Wardrip v. State, 56 S.W .3d
588, 594 n.7 (Tex. Cr. App. 2001); Keeton v. State, 724 S.W .2d 58, 61 (Tex. Cr. App. 1987).
                                                                                                                   Long - 8

be among the most revealing evidence of future dangerousness and alone may be sufficient to

support an affirmative answer to that special issue.”23 The jury may also consider all evidence

presented at both the guilt and the punishment stages of the trial.24 In reviewing a jury’s decision

on the special issue, “we must view all of the evidence before the jury in the light most favorable

to its finding, and then determine whether, based on that evidence and reasonable inferences

therefrom, a rational jury could have found beyond a reasonable doubt that the answer to the first

punishment issue was ‘yes.’”25

         Here, the appellant argues that, in all likelihood, he will spend the rest of his life in

prison, and thus, the only relevant “society” for the jury’s consideration on future dangerousness

is prison society. He looks to his prison record as a predictor of future conduct there, and

concludes that it does not support an affirmative finding on the future-dangerousness issue.26

However, this court has repeatedly held that, in determining whether a defendant poses a

continuing threat to society, the jury considers both free society and prison society.27 That the

appellant, had he been sentenced to life imprisonment, would not have been eligible for parole

until after serving forty years28 was not relevant to the jury’s decision.29


         23
              Druery v. State, 225 S.W .3d 491, 507 (Tex. Cr. App. 2007); Wardrip, 56 S.W .3d, at 594.

         24
           Ladd v. State, 3 S.W .3d 547, 557-58 (Tex. Cr. App. 1999); Valdez v. State, 776 S.W .2d 162, 166-67
(Tex. Cr. App. 1989).

         25
              Ladd, 3 S.W .3d, at 558.

         26
           In his brief, the appellant goes so far as to admit that if he were released back into society in the
foreseeable future, he might pose a risk.

         27
              See, e.g., Morris v. State, 940 S.W .2d 610, 613 (Tex. Cr. App. 1996).

         28
            The law applicable to the appellant allowed parole for a defendant sentenced to life imprisonment for a
capital offense. Article 37.071 was amended in 2005, to eliminate parole as an option for defendants so sentenced.
See Act of June 17, 2005, 79th Leg., R.S., ch. 787, §§ 6-9, 2005 Tex. Gen. Laws 2705, 2706-07 (current version at
                                                                                                           Long - 9

          We find that a rational jury could have found beyond a reasonable doubt that there is a

probability that the appellant would commit criminal acts of violence that would constitute a

continuing threat to society. The record, including the appellant’s own confession, establishes

that the appellant raped and murdered an eleven-year-old girl. The forensic evidence showed that

the appellant had inflicted extensive blunt-force injuries throughout Kaitlyn’s body, including her

head, neck, mouth, chest, back, legs, and hands. He had also caused massive internal trauma to

both Kaitlyn’s neck and her pelvic region. The tissue separating Kaitlyn’s vagina and anus had

been severely damaged, and Dr. McClain testified that, in her nineteen years as a medical

examiner, she had never before seen sexual-assault injuries of such magnitude. While there was

evidence that the appellant had been drinking, there was also evidence that suggested that he may

not have been impaired by any intoxication.

          The evidence during punishment showed that the appellant had an extensive history of

violence and brutality. The appellant’s medical records document a psychological evaluation

when he was fifteen years old which revealed several problem areas, including homicidal and

suicidal tendencies. He had been in a common-law marriage, during which, according to the

testimony of his ex-wife, he repeatedly raped her and beat her, even when she was pregnant,

causing her to miscarry once. Shortly before the birth of his second child, the appellant tried to

attack his wife with a butcher knife. Testimony also showed that the appellant raped a thirteen-




C O D E C RIM . P RO C . art. 37.071, §§ 1, 2(a)(1), 2(e), 2(g)).

          29
            See Morris, 940 S.W .2d, at 613 (“Because the length of appellant’s incarceration does not reduce or
increase his future dangerousness, it is not relevant to that issue.”).
                                                                                                       Long - 10

year-old girl and had relationships with two other women who described the appellant’s angry,

violent, and sexually abusive behavior.

        The appellant previously had been convicted and sentenced for attempted murder for his

participation in a drive-by shooting in 1991. While in prison, the appellant committed about

twenty disciplinary violations, including participating in a prison riot and freeing himself from

restraints.

        Based on the totality of the evidence, we find that a rational jury could have answered the

future-dangerousness issue in the affirmative. Point of error number three is overruled.

    IV. Is the Texas capital sentencing scheme unconstitutional for failing to provide for
                                meaningful appellate review?

        In his fourth point of error, the appellant contends that Texas’ capital sentencing scheme

is unconstitutional because it does not permit meaningful appellate review. The appellant argues

that, because the second special issue does not specify mitigating and aggravating factors, nor

does it require jurors to make specific findings, an appellate court has no way of knowing what

factors the jury considered in making its decision. Meaningful appellate review is therefore

impossible, he claims.

        This court has repeatedly rejected this argument,30 and we have said, “So long as the jury

is not precluded from hearing and effectuating mitigating evidence, we have never regarded

appellate review of mitigating evidence to be an essential component of a constitutionally

acceptable capital punishment scheme.”31 Point of error four is overruled.


        30
         See, e.g., Russeau v. State, 171 S.W .3d 871, 886 (Tex. Cr. App. 2005); Prystash, 3 S.W .3d, at 536;
McFarland, 928 S.W .2d, at 498-99.

        31
             McFarland, 928 S.W .2d, at 499.
                                                                                           Long - 11

              V. Is the death penalty as administered in Texas unconstitutional?

       In his fifth point of error, the appellant contends that Texas’s lethal-injection protocol

violates his right to be free from cruel and unusual punishment under the Eighth and Fourteenth

Amendments. The appellant concedes that the procedure has not been found to be

unconstitutional by any court. But he argues that Texas has yet to allow a hearing on this issue,

and asks that we remand the case to the trial court for a hearing on the merits of his claim, or

alternatively, that we take judicial notice of certain testimony and other published studies which

support his position. The State counters that the appellant failed to preserve the issue for appeal

by failing to make the claim with adequate specificity.

       We agree with the State that the appellant has failed to preserve error. The appellant

raised the issue only as a one-sentence paragraph in a pre-trial Motion to Set Aside the

Indictment, which challenged the constitutionality of the statute. The paragraph reads: “Death by

lethal injection is cruel and unusual punishment in violation of the Eight[h] and Fourteenth

Amendments of the United States Constitution and Article I §~10, 13 and 19 of the Texas

Constitution.” Before voir dire, the appellant also made an oral motion to set aside the

indictment, referring to the written motion generally. But he failed to explain the basis for his

claim with any further specificity.

       Texas Rule of Appellate Procedure 33.1(a) requires that, in order to preserve a complaint

for appellate review:

       [T]he record must show that the complaint was made to the trial court by a timely
       request, objection, or motion that stated the grounds for the ruling that the
       complaining party sought from the trial court with sufficient specificity to make the
       trial court aware of the complaint, unless the specific grounds were apparent from the
       context.
                                                                                                               Long - 12

         The appellant’s claim in his pre-trial motion, that death by lethal injection is cruel and

unusual punishment, is not equivalent to his complaint on appeal that the present lethal injection

protocol used in Texas violates the Eighth Amendment. His complaint failed to meet the

requirements of Rule 33.1(a). Because the appellant has not preserved the issue for appeal, point

of error five is overruled.

          VI. Did the trial court err by admitting autopsy photographs into evidence?

         The appellant’s sixth and final point of error alleges that the trial court erred in allowing

“highly prejudicial” autopsy photographs into evidence over his timely objection. He alleges that

the photographs were inadmissible as unfairly prejudicial under Texas Rule of Evidence 403.

The appellant argues that, because his guilt was “virtually conceded” during the trial, the autopsy

photographs, specifically State’s Exhibits 75 through 110,32 were not relevant to his guilt or

innocence and, therefore, had little probative value. He also contends that many of the

photographs were not referenced at all in the testimony. And he claims that, particularly with

regard to State’s Exhibits 94 through 102, which were images of internal organs, this lack of

explanation prejudiced jurors by giving them no frame of reference from which to determine the

normality of the images.

         Rule 403 allows for the exclusion of otherwise relevant evidence when its probative value

“is substantially outweighed by the danger of unfair prejudice.”33 “Rule 403 favors the admission


         32
             The appellant mistakenly identifies State’s Exhibit 111 as an autopsy photograph in one portion of his
brief, but elsewhere he correctly refers to the photographs at issue as State’s Exhibits 75-110. State’s Exhibit 111 is
actually a “Consent to Search” form signed by the appellant, rather than an autopsy photograph.

         33
            T EX . R. E VID . 403. Rule 403 also allows for the exclusion of relevant evidence if the probative value is
substantially outweighed by the danger of confusion of the issues or misleading the jury, or by considerations of
undue delay, or needless presentation of cumulative evidence. These specific objections, however, were not raised
here.
                                                                                                         Long - 13

of relevant evidence and carries a presumption that relevant evidence will be more probative than

prejudicial.”34 The admissibility of a photograph under Rule 403 is within the sound discretion of

the trial judge.35 We will reverse the trial judge’s decision only for an abuse of discretion, that is,

only if the decision falls outside the zone of reasonable disagreement.36

         A trial court may consider several factors in determining whether photographs are

unfairly prejudicial. These factors include: the number of exhibits offered, their gruesomeness,

their detail, their size, whether they are 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.37

         We note at the outset that, contrary to the appellant’s arguments, each autopsy photograph

was specifically referenced by number or description in the medical examiner’s testimony.

Furthermore, because the appellant did not plead guilty, the State was required to prove each

element of the charged offense regardless of the appellant’s strategy at trial regarding the issue of

his guilt or innocence.

         All of the photographs in question were taken during the medical examiner’s

investigation. State’s Exhibits 75 through 110 were introduced during the testimony of Deputy

Chief Medical Examiner Joni McClain. According to Dr. McClain’s testimony, which we



         34
              Gallo, 239 S.W .3d, at 762; Hayes v. State, 85 S.W .3d 809, 815 (Tex. Cr. App. 2002).

         35
           Prible v. State, 175 S.W .3d 724, 734 (Tex. Cr. App. 2005); Sonnier v. State, 913 S.W .2d 511, 518 (Tex.
Cr. App. 1995).

         36
              Salazar v. State, 38 S.W.3d 141, 151 (Tex. Cr. App. 2001).

         37
           Prible, 175 S.W .3d, at 734; Santellan v. State, 939 S.W .2d 155, 172 (Tex. Cr. App. 1997); Long v. State,
823 S.W .2d 259, 272 (Tex. Cr. App. 1991).
                                                                                                           Long - 14

summarize here, State’s Exhibits 76 through 80 show hemorrhaging and contusions which are

indicative of strangulation.38 State’s Exhibits 81 through 93 show various contusions throughout

the body, which are evidence of blunt-force trauma.39 Additionally, State’s Exhibits 88 and 89

are consistent with Kaitlyn’s having held her hand up to fend off an attack. State’s Exhibits 94

and 95 show traumatic injury to the vagina and anal region,40 and State’s Exhibits 96 through 103

show various internal injuries Kaitlyn sustained during the assault.41 State’s Exhibits 104 through

110 show injuries to Kaitlyn’s body consistent with bite marks.42




         38
            State’s Exhibit 75 is a frontal image of the unclothed body from head to mid-thigh showing an overall
view of the body’s condition. State’s Exhibits 76-77 show hemorrhaging around the whites of the right and left eyes,
respectively; State’s Exhibit 78 shows abrasions and contusions around the right side of the neck; State’s Exhibit 79
shows similar bruising to the neck and also the chin; State’s Exhibit 80 shows similar bruising along the left side of
the neck.

         39
           State’s Exhibit 81 shows areas of contusion on the chest; State’s Exhibit 82 shows a small abrasion on the
back, while the other purple areas are postmortem blood settling rather than injury; State’s Exhibit 83 shows bruising
on the upper left shoulder; State’s Exhibit 84 shows the same thing as State’s Exhibit 83, except on the right side;
State’s Exhibit 85 shows a bruise on the arm; State’s Exhibit 86 shows an abrasion on the back; State’s Exhibit 87
shows bruises on the leg; State’s Exhibit 88 shows bruises on the palm of the right hand; State’s Exhibit 89 shows
more bruising on the right hand; State’s Exhibit 90 shows an area of contusion on the left forearm; State’s Exhibits
91-93 show contusions on the upper and lower lips.

         40
            State’s Exhibit 94 shows lacerations and contusions on the vaginal tissue along the vaginal canal to the
cervix; State’s Exhibit 95 shows the area of tissue between the anal region and the vagina, measuring an abnormally-
thin one-eighth inch.

         41
             State’s Exhibit 96 shows bruising and hemorrhage under the reflected scalp, indicating blunt trauma on
the right side of the head; State’s Exhibit 97 shows the neck organs, with hemorrhaging throughout the thyroid
region; State’s Exhibit 98 shows the front portion of the neck organs and hemorrhage of the thyroid cartilage; State’s
Exhibit 99 shows hemorrhage of the thyroid gland, after having been removed from the body; State’s Exhibit 100
shows the other side of the thyroid gland; State’s Exhibit 101 shows hemorrhage around the hyoid bone; State’s
Exhibit 102 shows hemorrhage around the cervix, the bottom portion of the uterus, and the ovaries; State’s Exhibit
103 shows hemorrhage around the rectum and anal region that indicates “significant external penetration.”

         42
           State’s Exhibits 104-106 show various views of a bite mark on the left buttock; State’s Exhibits 107 and
108 shows different views of a bite mark on the right buttock; State’s Exhibits 109 and 110 show different views of a
bite mark on the right cheek.
                                                                                                          Long - 15

         The detailed, graphic, and gruesome photographs are undoubtedly prejudicial. But we

find that they are not unfairly so, that is, we find that the prejudicial effect of these photographs

does not substantially outweigh their probative value.

         In her testimony, Dr. McClain explained that Kaitlyn’s death was caused by strangulation,

but that had Kaitlyn somehow survived the strangulation, the extensive blunt-force trauma

injuries to her pelvic region could also have caused her death by blood loss or infection. Dr.

McClain used each one of the photographs to support and elucidate her findings. The

photographs are highly probative, therefore, because they demonstrate the nature and extent of

the injuries Kaitlyn sustained, provide evidence of the cause and manner of her death, and were

necessary to the State in developing its case. Furthermore, the injuries depicted were all sustained

as part of the same continuous transaction, show the mental state of the appellant during the

assault and murder, and show the specific circumstances of the crime.43

         The thirty-six photographs at issue were presented to the jury as “letter-sized,” color

images. None of these images is unnecessarily duplicative. In the majority of the photographs,

the body has been unaltered by the autopsy. Although these photographs are gruesome, they are

no more gruesome than the injuries caused by the appellant himself.44

         In the remaining photographs, the body has been altered by the autopsy. Although

“autopsy photographs are generally admissible unless they depict mutilation of the victim caused




         43
            See Rojas v. State, 986 S.W.2d 241, 249-50 (Tex. Cr. App. 1998) (upholding the admission of autopsy
photographs of injuries to the groin where the evidence suggested that the appellant inflicted them during the same
continuous transaction, even though the injuries were not the direct cause of the victim's death; photographs were
also probative of the appellant’s mental state and the specific circumstances of the murder).

         44
              See Gallo, 239 S.W .3d, at 763; Narvaiz v. State, 840 S.W .2d 415, 429-30 (Tex. Cr. App. 1992).
                                                                                                        Long - 16

by the autopsy itself,”45 the “mutilation” is not fatal to the photographs’ admissibility.46 The

autopsy’s internal examination was critical to Dr. McClain’s findings and conclusions. It was

thus also critical that jurors be able to see the photographic evidence of the full extent of the

injuries and the cause and manner of Kaitlyn’s death.47

       As to the appellant’s argument regarding State’s Exhibits 94 through 102, we find it has

no merit. Contrary to the appellant’s claim, Dr. McClain gave the jury a “frame of reference” for

each of the images at issue. She used the photographs to supplement her testimony by clearly

pointing out the contents of each one of the photographs and explaining what they contributed to

the evidence.

       Because the probative value of the autopsy photographs was not substantially outweighed

by the danger of unfair prejudice, we find that the trial judge did not abuse his discretion in

admitting the challenged exhibits.

                                                   Conclusion

       We affirm the trial court’s judgment and sentence of death.


Delivered April 8, 2009.
Do not publish.




       45
            Hayes, 85 S.W .3d, at 816; accord Santellan, 939 S.W .2d, at 172.

       46
            See Ripkowski v. State, 61 S.W .3d 378, 392-93 (Tex. Cr. App. 2001); Salazar, 38 S.W .3d, at 150-53.

       47
            See Gallo, 239 S.W .3d, at 763; Harris v. State, 661 S.W .2d 106, 108 (1983).
