                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-12-00211-CR

DEBRA RUTH HENDERSON,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee


                          From the 40th District Court
                              Ellis County, Texas
                           Trial Court No. 36,090CR


                         MEMORANDUM OPINION


      Debra Ruth Henderson appeals from her conviction for murder for which she

was sentenced to life in prison. TEX. PEN. CODE ANN. § 19.02 (West 2005). Henderson

complains that the evidence was insufficient for the jury to have determined beyond a

reasonable doubt that she intentionally or knowingly caused the death of Marian

Parsons, that the trial court abused its discretion in the admission of fourteen

photographs of Parsons' remains, and that the cumulative error of the admission of the
photographs constituted reversible error. Because we find no error, we affirm the

judgment of the trial court.

Sufficiency of the Evidence

       In her first issue, Henderson complains that the evidence was insufficient for the

jury to have found beyond a reasonable doubt that she intentionally or knowingly

caused the death of Parsons.        The Court of Criminal Appeals has expressed our

standard of review of a sufficiency issue as follows:

       In determining whether the evidence is legally sufficient to support a
       conviction, a reviewing court must consider all of the evidence in the light
       most favorable to the verdict and determine whether, based on that
       evidence and reasonable inferences therefrom, a rational fact finder could
       have found the essential elements of the crime beyond a reasonable doubt.
       Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
       13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the
       responsibility of the trier of fact fairly to resolve conflicts in the testimony,
       to weigh the evidence, and to draw reasonable inferences from basic facts
       to ultimate facts.” Jackson, 443 U.S. at 319. “Each fact need not point
       directly and independently to the guilt of the appellant, as long as the
       cumulative force of all the incriminating circumstances is sufficient to
       support the conviction.” Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

       The Court of Criminal Appeals has also explained that our review of “all of the

evidence” includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. at


Henderson v. State                                                                         Page 2
326. Further, direct and circumstantial evidence are treated equally: “Circumstantial

evidence is as probative as direct evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish guilt.” Hooper v. State, 214

S.W.3d at 13. Finally, it is well established that the factfinder is entitled to judge the

credibility of witnesses and can choose to believe all, some, or none of the testimony

presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

       A person commits the offense of murder if the person intentionally or knowingly

causes the death of an individual. TEX. PEN. CODE ANN. § 19.02(b)(1) (West 2011).

Henderson does not argue that she did not cause the death of Parsons but that the

evidence was insufficient to establish that Parsons' death was caused intentionally or

knowingly.

       Intent, being a question of fact, is in the sole purview of the jury. Brown v. State,

122 S.W.3d 794, 800 (Tex. Crim. App. 2003). A jury may rely on collective common

sense and common knowledge when determining intent. Ramirez v. State, 229 S.W.3d

725, 729 (Tex. App.—San Antonio 2007, no pet.). Intent may be inferred from the

circumstantial evidence surrounding the incident, which includes acts, words, and

conduct of the accused. See TEX. CODE CRIM. PROC. ANN. art. 38.36(a) (West 2005);

Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). Each fact need not point

directly or independently to Henderson's guilt; the verdict will be upheld as long as the

cumulative effect of all the incriminating facts are sufficient to support the verdict. See


Henderson v. State                                                                    Page 3
Guevara v. State, 152 S.W.3d 45, 52 (Tex. Crim. App. 2004) (stating that although each

piece of evidence lacked sufficiency in isolation, the consistency of the evidence and the

rational inferences drawn were sufficient to support the State's theory that the accused

was a participant in the murder of his wife).           Further, "[a]ttempts to conceal

incriminating evidence, inconsistent statements, and implausible explanations to the

police are probative of wrongful conduct and are also circumstances of guilt." Guevara,

152 S.W.3d at 50 (involving evidence that appellant made several false statements to

authorities, which suggested appellant's complicity in the crime).

Factual Background

       Marian Parsons was reported missing by Robert Sterling, the man with whom

she was living on December 3, 2010. Parsons had not been seen since December 1, 2010,

but Sterling thought she had gone to stay with friends because they were having

problems. Parsons' ex-husband had spoken with Parsons on the afternoon of December

1, and Parsons told him she had to go help Henderson retrieve an ATV that was stuck

in a pasture.

       Debra and Bobby Henderson were neighbors of Sterling and Parsons and were

leasing Sterling's land to run cattle.   Debra Henderson and Parsons were friends.

Parsons had loaned Henderson $2,700 in October of 2010. Henderson came over to

Sterling's house when the investigation started surrounding Parsons' disappearance

and Henderson denied having any knowledge of Parsons' whereabouts.


Henderson v. State                                                                  Page 4
       Within two days of Parsons' disappearance, Henderson was seen on video

unsuccessfully attempting to use Parsons' ATM card and successfully using Parsons'

credit card to make purchases and get cash withdrawals at Wal-Mart. Henderson

admitted stealing the cards but claimed that she did it while they were at breakfast on

the morning of December 1.         Henderson had been desperate for money and in

November and December of 2010, she unsuccessfully attempted to borrow $5,000 from

two acquaintances of the Hendersons without Bobby's knowledge. Unbeknownst to

Bobby, in December of 2010 the Hendersons were three months behind on their

mortgage.

       On March 19, 2011, Bobby Henderson found a human skull near a fence on his

property. After a search of the surrounding areas, Parsons' remains were located in a

ravine nearby.       The remains were buried under a large piece of sheet metal that

weighed approximately 68 pounds, cement blocks, trash, and old tires.            Parts of

Parsons' body were missing and the remains had been heavily scavenged by animals.

       A dive team discovered a Hi-Point nine millimeter handgun in a private pond

approximately seventy feet from where Parsons' remains were discovered. The gun

was purchased by Bobby Henderson and was reported stolen in April of 2010. The gun

was jammed by a bullet and had six other bullets in it when it was discovered.

       The medical examiner testified that the remains had been highly scavenged by

animals and Parsons' organs, one of her entire arms, and her other hand were


Henderson v. State                                                                 Page 5
completely missing.     The head was detached and the skull found by Bobby was

identified as that of Parsons from dental records. Other bones were found in the nearby

fields. Parsons had multiple broken ribs but the examiner could not determine when

they were broken.      However, the bones did not show signs of healing and were

therefore likely fractured at the time of death or thereafter. There were two round

abdominal defects which could have been caused by stabbing or gunshot wounds.

Toxicology testing conducted on muscle tissue found ketamine, a drug commonly used

to quickly anesthetize animals, in her system, which was highly suspicious to the

examiner. Ketamine is rarely used on or by humans because it causes unpleasant

hallucinations and side effects, but could be lethal if given in a large dose.     The

examiner determined the cause of death to be homicide but the means of death was

unknown due to the decomposition.

       A forensic anthropologist who then examined the remains testified that he

believed the abdominal defects, which consisted of one 11-millimeter round wound and

one oblong wound measuring 11 millimeters by 17 millimeters, were an entry and exit

gunshot wound.       The anthropologist's examination showed smooth edges to those

wounds and no signs of scavenging by animals or insects, which would be evidenced

by tooth marks and rough edges. The anthropologist also opined that the broken ribs

could not have been caused by a wheel running over the body because of the pattern of

the breaks and the total lack of damage to the bones in the spinal column. Further, the


Henderson v. State                                                               Page 6
anthropologist testified that a fall could not have caused the rib fractures. The cause of

death by the anthropologist was determined to be homicidal violence and gunshot

injury could not be excluded as the cause of death.

         During the time prior to the discovery of Parsons' body, Henderson made several

statements to law enforcement which were recorded both in writing and on video. In

her statement made in late December, Henderson attempted to shift the focus of the

investigation to Sterling, but she did admit to stealing and using the debit and credit

cards.    On March 19, after Parsons' skull was found, Henderson made another

statement but only described finding the skull with her husband.           The next day

Henderson admitted that she had accidentally killed Parsons by running over her with

the ATV they were riding in after Parsons fell out of it. Henderson contended that she

panicked and hid the body in the ravine by covering it with the sheet metal and a tire.

Henderson and an investigator later met at the scene and Henderson attempted to

describe and demonstrate what had occurred; however, law enforcement was unable to

recreate what Henderson had described and believed it to be impossible. After the gun

was discovered, Henderson admitted throwing the gun into the pond because it was

jammed but contended that she had done that prior to Parsons' death.

Analysis

         Henderson's inconsistent statements that each admitted additional facts

describing her culpability in Parsons' death support the jury's finding that Henderson


Henderson v. State                                                                  Page 7
intentionally or knowingly caused Parsons' death.       See Guevara, 152 S.W.3d at 50;

Alexander v. State, 229 S.W.3d 731, 740 (Tex. App.—San Antonio 2007, pet. ref'd.) (stating

evidence was sufficient to support jury's finding that defendant intentionally caused the

death of victim when defendant provided inconsistent statements about how the

victim's injuries occurred and those statements contradicted medical evidence).

Further, the jury could have reasonably inferred the requisite intent from the fact that

she hid the body after Parsons' death. See Reeves, 969 S.W.2d at 479 (providing the jury

was free to infer that the defendant was disposing of incriminating evidence).

Henderson was the last person to see Parsons alive. See Reeves v. State, 969 S.W.2d 471,

479 (Tex. App.—Waco 1998, pet. ref'd.) (involving evidence that the accused was the

last to see the complainant alive, had the best opportunity and motive to kill the

complainant, and attempted to get rid of incriminating evidence as legally sufficient

evidence to support that the accused caused the complainant's death). Henderson had

borrowed money from Parsons approximately six weeks prior to Parsons'

disappearance and Henderson was desperately attempting to borrow additional money

from others without her husband's knowledge.

       Henderson also argues that because the cause of Parsons' death could not be

determined there was insufficient evidence to establish with any degree of certainty

what actually occurred that afternoon and that this rendered the evidence insufficient to

establish that she intentionally or knowingly caused Parsons' death. However, it is not


Henderson v. State                                                                  Page 8
necessary that the exact cause of death be determined. See Scott v. State, 732 S.W.2d 354,

359 (Tex. Crim. App. 1987). The indictment alleged that Henderson intentionally or

knowingly caused the death of Parsons "by shooting her with a firearm, or running over

her with a motor vehicle or poisoning her or by a manner and means unknown to the

grand jury." The medical examiner and the forensic anthropologist determined the

manner of death to be a homicide.        The medical examiner testified that the final

determination to the cause of death was inconclusive. The forensic anthropologist

testified that in his opinion, based on the holes found in Parsons' abdomen, Parsons

most likely died from a gunshot wound. The forensic anthropologist further testified

that the broken ribs could not have been caused by being run over by the ATV because

of their pattern and the lack of corresponding injury to Parsons' vertebrae.          The

ketamine found in Parsons' muscle tissue was highly suspicious to the medical

examiner.

       These factors, especially when combined, are sufficient to support the jury's

conclusion of Henderson's intent to cause Parsons' death. See Reeves, 969 S.W.2d at 479-

80. Viewing the evidence in the light most favorable to the verdict, we conclude a

rational trier of fact could have found beyond a reasonable doubt that Henderson

intentionally or knowingly caused the murder of Parsons. The evidence was sufficient

for the jury to have found Henderson guilty beyond a reasonable doubt. We overrule

issue one.


Henderson v. State                                                                  Page 9
Admission of Evidence

       In issues two through fifteen, Henderson complains that the trial court abused its

discretion in the admission of photographs taken of Parsons' remains at the crime scene

and photographs taken of Parsons' remains that were used in conjunction with the

forensic anthropologist's testimony because the probative value of the photographs was

greatly outweighed by unfair prejudice and the photographs were duplicative of other

photographs previously admitted. See TEX. R. EVID. 403.

       In issues two through seven, Henderson complains of the admission of six

photographs that depict the condition of Parsons' remains as discovered several months

after Parsons' death. Issue two complains of a photograph of Parsons' skull as it was

found by Bobby Henderson, Henderson's husband.             Issue three complains of a

photograph taken from a side angle of the remains of Parsons' body as it was found

after the sheet metal and other debris were removed.         Issue four complains of a

photograph of Parsons' right thigh and waist. Issue five complains of a photograph of

Parsons' remains down to her waist. Issue six complains of a photograph of Parsons'

legs and feet. Issue seven complains of a photograph of Parsons' right shoe. These

photographs were admitted during the testimony of a criminal investigator present at

the scene.

       In issues eight through fifteen, Henderson complains of the admission of eight

photographs that were admitted during the testimony of the forensic anthropologist.


Henderson v. State                                                                Page 10
Issue eight complains of a photograph of Parsons' remains at the scene where the

remains were discovered. Issue nine complains of a photograph of Parsons' remains

which has a circle and a notation "Area of intense scavenging." Issues ten and eleven

complain of photographs of Parsons' remains from a side angle which are similar to

those complained of in issue three. Issue twelve complains of a photograph of Parsons'

remains which had arrows pointing to two round holes in Parson's abdomen and was

notated, "Probable projectile path."    Issue thirteen complains of a photograph of

Parsons' legs and right shoe. Issue fourteen complains of a photograph of Parsons'

remains with arrows pointing to the two round holes in Parsons' abdomen and was

notated, "Ballistic defects." Issue fifteen complains of a photograph of Parsons' remains

from the front with arrows to the two round holes and the notation, "Ballistic defects."

Standard of Review

       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, or by considerations of undue delay or needless presentation of

cumulative evidence. TEX. R. EVID. 403. Rule 403 carries a presumption that relevant

evidence will be more probative than prejudicial and favors the admission of relevant

evidence. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007). When the evidence

is a photograph, if the photograph has elements that are genuinely helpful to the jury in

making its decision, the photograph is inadmissible only if the helpful aspects are


Henderson v. State                                                                 Page 11
substantially outweighed by the emotional and prejudicial aspects. Erazo v. State, 144

S.W.3d 487, 491-92 (Tex. Crim. App. 2004). Photographs depicting matters described by

admissible testimony are generally admissible. Erazo, 144 S.W.3d at 489.

         Our analysis of the trial court's ruling pursuant to rule 403 includes, but is not

limited to, the following factors:     (1) the probative value of the evidence, (2) the

potential to impress the jury in some irrational yet indelible way, (3) the time needed to

develop the evidence, and (4) the proponent's need for the evidence. Hernandez v. State,

390 S.W.3d 310, 324 (Tex. Crim. App. 2012); Shuffield v. State, 189 S.W.3d 782, 787 (Tex.

Crim. App. 2006). In determining whether the probative value of a photograph is

substantially outweighed by the danger of unfair prejudice, relevant factors include "the

number of exhibits offered, their gruesomeness, their detail, their size, whether they are

in 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." Williams v. State, 301 S.W.3d 675, 690 (Tex. Crim. App.

2009).

         We review the trial court's ruling on the admissibility of a photograph under an

abuse of discretion standard and will not reverse the trial court's ruling unless it falls

outside the zone of reasonable disagreement. See Young v. State, 283 S.W.3d 854, 874

(Tex. Crim. App. 2009). In this determination, we must do more than decide whether

the trial court conducted the required balancing analysis between probative and


Henderson v. State                                                                  Page 12
prejudicial values. Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). We

must also determine that the trial court's ruling is reasonable in view of all the relevant

facts. Id.

       "If a photograph is competent, material and relevant to the issue on trial, it is not

rendered inadmissible merely because it is gruesome or might tend to arouse the

passions of the jury, unless it is offered solely to inflame the minds of the jury." Erazo,

144 S.W.3d at 489. The probative value of a color photograph or a videotape depicting

the recovery of a murder victim's body may outweigh its prejudicial effect even when

the depiction includes close-ups and lingering camera angles, so long as the images

simply reflect the gruesomeness of the offense. See Ripkowski v. State, 61 S.W.3d 378, 392

(Tex. Crim. App. 2001). Similarly, the probative value of a series of autopsy photos of

murder victims may outweigh its prejudicial effect when the series of photos is used to

assist a medical examiner's testimony. Newbury v. State, 135 S.W.3d 22, 43 (Tex. Crim.

App. 2004).

Balancing Factors

(1) Probative Value

       The crime scene photos were used during direct examination of one of the

investigating officers to describe the crime scene, the injuries suffered by Parsons, and

the evidence obtained at the crime scene to support testimony as to the difficulty




Henderson v. State                                                                   Page 13
determining the time of Parsons' death and the difficulty determining the cause of

Parsons' death.

       While somewhat gruesome, the crime scene photos are relevant because they

accurately reflect the location and state of Parsons' body when it was discovered and

reflect one of the enumerated potential causes of death, by shooting. See Ripkowski, 61

S.W.3d at 392. Such depictions give the photos substantial probative value. Id. The

crime scene photographs support testimony that Parsons was killed and her body was

left in a manner that allowed it to be scavenged by animals.         The photographs of

Parsons’ remains support the testimony by the medical examiner as to the difficulty in

determining Parsons' cause of death and the decomposition of the body that occurred

during the period Parsons was missing, which supported the testimony as to the date

and circumstances of the crime having taken place several months prior to the

discovery of Parsons' remains. Further, the photos introduced during the testimony of

the forensic anthropologist were also used to assist his testimony as to his opinion of the

cause and manner of Parsons' death. Newbury, 135 S.W.3d at 43. We find that the

photos had substantial probative value. Ripkowski, 61 S.W.3d at 392.

(2) Potential to Impress Jury in Irrational, Indelible Way

       While the photos make an indelible impression, they do not depict more than the

nature of the crime and the outcome of Henderson's efforts to conceal the crime.

Ripkowski, 61 S.W.3d at 392. Additionally, the photos also help to date the crime to a


Henderson v. State                                                                  Page 14
time shortly after Parsons disappeared. We do not believe that any of these images

simply appeal to the jury's emotion to lead the jury to make an irrational verdict. Erazo,

144 S.W.3d at 494-95. The photos are, therefore, unlikely to render the jury irrational

and incapable of making a sober assessment of the facts. Id. at 495. This factor likewise

weighs in favor of admissibility of both sets of photos.

(3) Time Needed to Develop Evidence

       When the State began questioning regarding the photographs, the trial court

conducted a hearing outside of the presence of the jury on the admissibility of all of the

photos and overruled each of Henderson's objections. During trial, the State used the

photos complained of in issues two through seven during direct testimony of a crime

scene investigator and the photos complained of in issues eight through fifteen through

the testimony of the forensic anthropologist.       Once the trial court had overruled

Henderson's objections and ruled in favor of admissibility of the photos, there was not

an undue amount of time spent describing them to the jury. This factor weighs in favor

of admissibility of both sets of photos.

(4) Proponent's Need for Evidence

       Henderson argued to the trial court and to this Court that the photographs were

not needed because the oral testimony was sufficient to describe the condition of

Parsons' remains when they were discovered. However, Henderson also argued that

the death of Parsons was accidental and the visual aid of the remains and the potential


Henderson v. State                                                                 Page 15
gunshot wounds were highly significant when the cause of death was contested.

Because the photos supported testimony as to one potential cause of death, the

difficulty in determining other causes of death due to scavenging and decomposition,

and aided in establishing the time and place of death, the State demonstrated a need for

this evidence. This factor weighs in favor of admission of the photos.

(5) Other Factors

       There are no other relevant factors argued by Henderson that affect the

admissibility of the photographs.

Needlessly Cumulative Evidence

       Henderson also complains in issues four through fifteen that the trial court

abused its discretion in the admission of the photographs because they were cumulative

of the photograph complained of in issue three. However, rule 403 does not require the

exclusion of all cumulative evidence; rather it requires exclusion if the probative value

of the evidence is substantially outweighed by the needless presentation of cumulative

evidence. See TEX. R. EVID. 403. We do not find that the number of photographs

admitted was needlessly cumulative.

       We find that the trial court's ruling to admit the photographs was reasonable in

view of all the relevant facts and was not outside the zone of reasonable disagreement.

The trial court did not abuse its discretion in the admission of the photographs

pursuant to rule 403. We overrule issues two through fifteen.


Henderson v. State                                                                Page 16
Cumulative Errors

       In her sixteenth issue, Henderson argues that the cumulative effect of the

erroneously admitted photographs should constitute reversible error. However, since

we have found that the photographs were not erroneously admitted, there can be no

cumulative error. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999);

see also Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). We overrule issue

sixteen.

Conclusion

       Having found no error, we affirm the judgment of the trial court.




                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 19, 2013
Do not publish
[CRPM]




Henderson v. State                                                              Page 17
