                                                                           ACCEPTED
                                                                        03-15-00328-cr
                                                                               6704983
                                                            THIRD COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                                                                  8/28/2015 2:51:46 PM
                                                                     JEFFREY D. KYLE
                                                                                CLERK
                    No. 03-15-00328-CR

                 IN THE COURT OF APPEALS             FILED IN
                                              3rd COURT OF APPEALS
            FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS
                  TEXAS AT AUSTIN, TEXAS      8/28/2015 2:51:46 PM
                                                 JEFFREY D. KYLE
                                                      Clerk
                           ******

     DANIEL LORENZO WILSON
                            VS.

         THE STATE OF TEXAS
                           ******

         ON APPEAL FROM THE 264th DISTRICT COURT
                 OF BELL COUNTY, TEXAS
                     Cause No. 72,334

                           ******
                 STATE’S BRIEF
                           ******

                         HENRY GARZA
                         DISTRICT ATTORNEY

                         BOB D. ODOM
                         ASSISTANT DISTRICT ATTORNEY
                         P.O. Box 540
                         Belton, Tx 76513
                         (254) 933-5215
                         FAX (254) 933-5704
                         DistrictAttorney@co.bell.tx.us
                         SBA No. 15200000


Oral Argument Not Requested

                             1
                   TABLE OF CONTENTS

ITEM                                                     PAGE

Index of Authorities …………………………………………………………………             3

Statement Regarding Oral Argument ………………………………………..        5

Statement of the Case ………………………………………………………………             5

Statement of Facts …………………………………………………………………..             6

Summary of State’s Argument ………………………………………………….          10

Argument and Authorities ……………………………………………………….           11

       Issue on Appeal ……………………………………………………………...         11
             TRIAL COURT ABUSE DISCRETION IN ADMITTING
             CRIME SCENE PHOTOGRAPHS IN NON-JURY
             PUNISHMENT HEARING UNDER RULE 403?

       Standard of Review ………………………………………………………..         11

       Application and Analysis ………………………………………………..      12

Prayer …………………………………………………………………………………….                  30

Certificate of Compliance with Rule 9 ………………………………………     30

Certificate of Service ……………………………………………………………….          31




                              2
                  INDEX OF AUTHORITIES

CASES                                                          PAGE

Chamberlain v. State, 998 S.W.2d 230 …………………………… 16, 17, 23, 27
    (Tx. Cr. App. 1999)

Corley v. State, 987 S.W.2d 615 ………………………………………………..             15
      (Tx. App. Austin 3rd Dist. 1999 no pet.)

Erazo v. State, 144 S.W.3d 487 (Tx. Cr. App. 2004) …………………… 17-20

Gallo v. State, 239 S.W.3d 757 (Tx. Cr. App. 2007) …………………11-12, 14

Hernandez v. State, 390 S.W.3d 310 (Tx. Cr. App. 2012) ……………     14

Jackson v. State, No. AP-75,707, 2010 Tex. Crim. App. ……………….. 19-20
      Unpub. LEXIS 30, (Tx. Cr. App. 2010), not designated
      for publication

Jean v. State, No. AP-76,601, 2013 Tex. Crim. App. ……………………. 27-28
      Unpub. LEXIS 785, (Tx. Cr. App. 2013), not designated
      for publication

Montgomery v. State, 810 S.W.2d 372 ………………………………………. 14, 21
     (Tx. Cr. App. 1990) op. on reh’ng.

Pawlak v. State, 420 S.W.3d 807 (Tx. Cr. App. 2013) …………………      14

Reese v. State, 33 S.W.3d 238 (Tx. Cr. App. 2000) …………………….. 17-20

Sonnier v. State, 913 S.W.2d 511 (Tx. Cr. App. 1995) …………… 15-16, 27

Ex Parte Twine, 111 S.W.3d 664 (Tx. App. Ft. Worth ………………… 15, 23
      2nd Dist. 2003 rev. ref.)

Weatherred v. State, 15 S.W.3d 540 (Tx. Cr. App. 2000) ……………     11



                                 3
OTHER                                                PAGE

Texas Penal Code

      Section 12.32 …………………………………………………………………          21

      Section 19.02 …………………………………………………………………          21

Texas Code of Criminal Procedure

      Article 37.07(3) …………………………………………………………….. 22, 24

Texas Rules of Evidence

      Rule 403 ………………………………………… 10-11, 13-16, 20-21, 27-28

Texas Rules of Appellate Procedure

      Rule 33.1 ………………………………………………………………………            13

      Rule 44.2(b) ………………………………………………………………….          28




                                     4
STATEMENT REGARDING ORAL ARGUMENT
        The State does not request oral argument.

STATEMENT OF THE CASE

        The Appellant, Daniel Lorenzo Wilson, was charged by indictment

with the offense of murder. The indictment alleged that he intentionally

and knowingly caused the death of Karen Edwards by shooting her with

a firearm and stabbing and cutting her with a knife. (RR-4).

        The Appellant waived a jury and entered a plea of guilty to the

offense charged. (CR-15-22; RR2-7, 8). The trial court took judicial

notice of the Appellant’s judicial confession admitting all of the elements

of the offense as charged in the indictment. (CR-20; RR2-8). There was

no plea bargain with the State. (CR-15; RR2-8). The trial court found the

evidence sufficient to support a finding of guilty and recessed the

hearing for a presentence report. (RR2-9).

        After an extensive subsequent hearing on punishment the court

found the Appellant guilty and sentenced him to life in the Texas

Department of Corrections, Institutional Division. (CR-25; RR3-174,

175).




                                     5
      The Appellant gave timely notice of appeal (CR-29) and the trial

court certified his right to do so. (CR-23).

STATEMENT OF FACTS

      Latasha Brown was hanging out with the Appellant at his home.

They were drinking beer and Brown was using cocaine when Karen

Edwards, who had dated the Appellant, arrived. (RR3-21, 24). Edwards

sat down on the sofa and Ms. Brown got up and walked into the

bathroom. (RR3-25). As she was closing the bathroom door, however,

Brown heard a shot. (RR3-26). She knew that the Appellant kept a gun

in a drawer in the sectional sofa. (RR3-26). She had heard no argument

prior to the shot. (RR3-27).

      After the shot was fired Ms. Brown heard Karen Edwards

screaming and saw her seated on the couch holding her leg.         The

Appellant was next to her with the gun. (RR3-27, 28). Edwards kept

asking him to let her leave and promised not to tell anybody and would

just walk home. She promised to say that it was an accident. (RR3-29,

30, 31). The Appellant replied that she was not leaving and got a towel

or something to try to stop the bleeding. (RR3-31).




                                      6
      Ms. Edwards kept screaming “Daniel, you shot me, you shot me”.

The Appellant told her to shut up because he could not think and that he

loved her. (RR3-32).

      About 30 minutes later, Karen Edwards was still seated on the

couch and the Appellant was standing over her, when he said “mother

fucker you’re going to learn to stop playing me” and accused her of

never loving him. He then he pointed the gun at her and shot her in the

stomach. Brown ran and hid in the shower. (RR3-32, 33).

      Ms. Brown heard Edwards begging for her life and pleading with

the Appellant to let her call and talk to her kids and her mother one last

time. (RR3-34). She heard Edwards scream something that sounded

like “my life is leaving me”. She then saw Edwards slide across the floor

to the bathroom door. (RR3-35).

      Ms. Brown urged Edwards to come with her and they would jump

out the bathroom window but Edwards said that the Appellant would

kill her if she tried that and she could not walk. (RR3-36). The Appellant

started taunting Edwards by waiving the gun around and told her that

he hoped she had prayed to her maker. (RR3-37). Brown tried to lift her

up but could not do so. (RR3-37).




                                    7
      At that point the Appellant grabbed Karen Edwards by the front of

her shirt and tossed her aside. He told her again to pray to her maker

and shot her in the head. (RR3-39). Then, when he saw she was still

breathing, he took a flashlight and started beating her about the face.

(RR3-39). The Appellant shot at her head a second time but seemed to

have missed. (RR3-39). About an hour had passed between the first

shot in the leg and the shots to the head. (RR3-39).

      Ms. Edwards was still gurgling from the wound in her head. She

was breathing but not talking at that point. The Appellant grabbed her,

threw her down on the floor and stepped on her neck, saying “why don’t

you just die, bitch”. (RR3-41). He then grabbed a sword off of the table

and just started chopping down on Karen Edwards, cutting and stabbing

her. (RR3-42, 43).

      The Appellant then ordered Latasha Brown to “get this trash out

of my house” but Brown could not lift the body. The Appellant told

Brown that she was going to help him get rid of it “or you are next”. He

pointed the gun at Brown and pulled the trigger, but had no more

bullets. (RR3-43, 44).




                                    8
      The Appellant and Ms. Brown first put the body of Karen Edwards

on the porch and then dragged it across the street behind a vacant

house. (RR3-43, 45, 46).

      The Appellant told Brown to get back in the house and as they did

he locked the door. He changed his clothes and ordered her to put them

in a plastic bag. (RR3-46). Brown then asked him if he had any bleach

with which to clean up the scene and told him that she would go and get

some. He gave her $5.00 and she left after she called a friend to come

and pick her up. (RR3-47).

      Latasha Brown was “high out of her mind” and did not know what

to do. She went to a friend’s house and used more cocaine and alcohol

but the memory would not go away. She still had brain matter on her

clothing. (RR3-48). Finally, a friend convinced her to call 911 and

report the incident. (RR3-49).

      Killeen Police Officers went to the scene and arrested the

Appellant. They investigated the scene of the crime as well as where the

body was located and took photographs. (RR3-101, 102, 104).

      The autopsy on the body of Karen Edwards established that she

had suffered 4 gunshot wounds, one in the leg, another in the abdomen,

one in the forehead, and one that grazed the side of her head. (RR3-86,


                                   9
87). She also had a slicing cut on her neck, numerous stab wounds on

the abdomen and blunt force injuries to her face and forehead that

caused numerous facial fractures. (RR3-87, 88, 89, 90, 91).

SUMMARY OF STATE’S ARGUMENT

      The photographs were not unfairly prejudicial but merely

depicted the reality of the brutal and heinous crime admittedly

committed by the Appellant and Rule 403 has no application. The

photographs were admissible to show the circumstances of the

commission of the crime at the punishment hearing before the trial

court and without a jury.       They also served to corroborate the

eyewitness to the murder. Any prejudice created was not unfair as the

evidence only illustrated the Appellant’s own actions.

      Even if the evidence had been unfairly prejudicial it did not

substantially outweigh the probative value of the evidence.

      Had the trial court erred in the admission of the photographs that

error would have been harmless as not affecting the Appellant’s

substantial rights in view of his admission and the evidence of an

extremely brutal murder.




                                   10
ARGUMENT AND AUTHORITIES

Issue on Appeal

      Did the trial court abuse its discretion in overruling the

Appellant’s objections to certain photographs on the grounds that they

were unfairly prejudicial and that the probative value of that evidence

was substantially outweighed by such prejudice?

Standard of Review

      A trial court’s ruling upon the admissibility of evidence is

reviewed under an abuse of discretion standard and the ruling will be

upheld as long as it is within the zone of reasonable disagreement.

Weatherred v. State, 15 S.W. 3d 540, 542 (Tx. Cr. App. 2000).

      The admission of a photograph is within the sound discretion of

the trial judge and generally a photograph is admissible if verbal

testimony is admissible as to matters depicted in the photograph. If

verbal testimony is relevant, photographs of the same are also relevant.

Gallo v. State, 239 S.W.3d 757, 762 (Tx. Cr. App. 2007).

      Rule 403 of the Texas Rules of Evidence, however allows the

exclusion of relevant evidence when its probative value is substantially

outweighed by the danger of unfair prejudice.              The Rule favors



                                    11
admission of relevant evidence and carries a presumption that relevant

evidence will be more probative than prejudicial. Gallo at 762.

Application and Analysis

The Photographs

      In this case the State offered photographs designated State’s

Exhibits 4 through 38. They were all taken at the scene of the crime.

When the State offered State’s Exhibits 7, 8, 9, 10, 11, 13, 14, 16, 20, 21,

22, 23, 24, 25, 31, 34, and 35 the Appellant objected to them because he

alleged they were “unduly prejudicial” and their probative value was

very limited. The trial court overruled the objection and admitted those

exhibits. (RR3-52).

      Later the State offered those photographs marked State’s exhibits

4, 5, 6, 12, 15, 17, 18, 19, 26, 27, 28, 29, 30, 32, 33, and 36. As to those

exhibits the Appellant had no objection and they were admitted. (RR3-

105, 106).

      On appeal the Appellant says he complains of the admission of

State’s Exhibits 4, 7, 8, 15, 16, 17, and 18 (Appellant’s Brief at pg. 23),

however, he then cites Exhibits 9, 13, 14, 25, 31, 34 and 35 as examples

of what he characterizes as “grossly prejudicial” and does not include

those he earlier stated were the basis of his appellate complaint.

                                    12
       The exhibits are set out in numerical order in RR4. State’s Exhibit

41 is a photograph of the outside of the residence where the murder

occurred. State’s Exhibit 7 show the body behind the vacant house at a

distance. Exhibit 8 is a closer view of the body as it was found. State’s

Exhibit 9 is a photograph showing the wounds on the face of Karen

Edwards.      Exhibit 13 and Exhibit 14 show blood on the sidewalk.

Exhibit 15 is a close up of blood pooled on the walk. Exhibit 16 shows

the sidewalk itself and 17 the back of the house and the porch. Exhibit

18 is a photograph of the back of a house. Exhibit 25 is a photograph of

the sword lying on a table inside the house. Exhibit 31 appears to show

part of the inside of the house. Exhibits 34 and 35 are photographs of

the flashlight from different angles.

Rule 403

       Rule 403 requires the court to conduct a balancing test in which it

must weigh the probative value of the evidence against the danger of

unfair prejudice. The Appellant does not contest that the photographs

were both relevant and probative in this case, but merely that they were

unfairly prejudicial to the extent that the unfair prejudice substantially



1
  State’s Exhibit 4 was offered and admitted without objection (RR3-105, 106) and
therefore nothing is presented for review. Rule 33.1, Texas Rules of Appellate Procedure.


                                           13
outweighed the probative value.            The rule, however, requires a

presumption that relevant evidence will be more probative than

unfairly prejudicial. Gallo at 762.

Not Unfairly Prejudicial

      In this case the photographs admitted by the trial court over the

Appellant’s objection, were not unfairly prejudicial in the first place. All

evidence is prejudicial to one party or other. What Rule 403 requires is

a balancing between unfair prejudice and probative value and the rule is

inapplicable where there is not a clear disparity between such prejudice

and probative value. Hernandez v. State, 390 S.W.3d 310, 324 (Tx. Cr.

App. 2012). Evidence is unfairly prejudicial when it has an undue

tendency to suggest that a decision be made on an improper basis,

usually an emotional one. Pawlak v. State, 420 S.W.3d 807, 809 (Tx. Cr.

App. 2013), Montgomery v. State, 810 S.W.2d 372, 389 (Tx. Cr. App.

1990) op. on reh’ng.

      In this case it must be remembered that the photographs

complained of were offered at a sentencing hearing conducted before

the trial court, without a jury, subsequent to a plea of guilty. The judge

was the fact finder and charged with the duty of making the decision as

to punishment. The danger of unfair prejudice under Rule 403 is greatly


                                      14
reduced when the judge is the trier of fact. Ex Parte Twine, 111 S.W.3d

664, 668(Tx. App. Ft. Worth 2nd Dist. 2003 rev. ref.); Corley v. State, 987

S.W.2d 615, 621 (Tx. App. Austin 3rd Dist. 1999 no pet.). There is

nothing in the record to indicate or even imply that the trial judge was

prejudiced by the admission of the photographs so as to make an

emotionally charged or improper decision as to punishment.

      The Appellant alleges that the photographs he cites were unfairly

prejudicial because they were “gruesome”. Three of the photographs he

cites are State’s Exhibits 7, 8, and 9. State’s Exhibits 7 and 8 show the

body of Karen Edwards where it was found. State’s Exhibit 9 shows the

wounds admittedly inflicted by the Appellant on her face. Exhibits 13,

14, and 15 show the blood trail on the sidewalk where her body was

dragged. Other photographs show the flashlight and sword used to

inflict the injuries. (Exhibits 25, 34, 35).

      Undoubtedly these photographs prejudiced the Appellant, but was

that effect unfair? In Sonnier v. State, 913 S.W.2d 511 (Tx. Cr. App.

1995) the defendant complained of the admission of photographs of the

bodies of two victims in a bathtub full of bloody water with visible stab

wounds as gruesome and claimed they should not have been admitted

under Rule 403. The Court of Criminal Appeals, however, stated:


                                       15
            “The photographs are gruesome. That is to say they are
            disagreeable to look at, but they depict nothing more
            than the reality of a brutal crime committed. The
            photographs are powerful visual evidence, probative of
            various aspects of the State’s theory of the offense,
            including the brutality and heinousness of the offense.
            The Appellant must realize that it is precisely the quality
            of which we describe as ‘powerful’ which gives rise to his
            arguments that the photographs are prejudicially
            inflammatory. But when the power of the visible evidence
            emanates from nothing more than what the defendant
            himself has done we cannot hold that the trial court has
            abused its discretion merely because it admitted the
            evidence. A trial court does not err merely because it
            admits into evidence photographs which are gruesome.”

                                                Sonnier at 519.

      Similarly, in Chamberlain v. State, 998 S.W.2d 230 (Tx. Cr. App.

1999), the defendant complained of color photographs showing a close

up of the victim face with brain matter extruded and other wounds. He

claimed they were unfairly prejudicial and lacked probative value under

Rule 403 because they merely depicted what was included in the oral

testimony of the pathologist and were inflammatory. First of all, the

Court of Criminal Appeals rejected the premise that visual evidence

accompanying oral testimony was thereby rendered insignificantly

probative. The Court noted that visual evidence that accompanies oral

testimony often gives the fact finder a point of comparison against

which to test the credibility of the witness. Moreover, the court did not


                                   16
agree that the photographs were inflammatory, noting that “The

photographs are gruesome in that they depict disagreeable realities, but

they depict nothing more than the reality of the brutal crime committed.

And it is precisely because they depict the reality of the offense that they

are powerful visual evidence, probative of various aspects of the State’s

case. Chamberlain at 237.

      In this case the only eye witness to the murder was Ms. Brown.

She was admittedly very high on cocaine and alcohol. The photographs

taken at the crime scene were corroborative of her testimony and, as in

Chamberlain, allowed the court, as the trier of fact, to assess the

credibility of the sole witness. They were all taken at the scene and

were photographs of the victim, some of the weapons used in the

murder, and of the premises where the crime took place.                 The

photographs of Karen Edwards are unquestionably disagreeable to look

at but they depict only what the Appellant admitted doing and the

extreme brutality and heinousness of the crime.           They may have

prejudiced the Appellant but they were by no means unfair.

      The Appellant relies heavily upon Erazo v. State, 144 S.W.3d 487

(Tx. Cr. App. 2004) and Reese v. State, 33 S.W.3d 238 (Tx. Cr. App. 2000).

That reliance is misplaced. In Erazo the photograph in question was of a


                                    17
fetus removed from the murder victim at autopsy. In finding a lack of

probative value the Court held that the photograph did not illustrate the

testimony “In contrast to a crime-scene photograph, which would assist

the jury in visualizing the scene…”. Erazo at 493. The Court of Criminal

Appeals distinguished the photographs in that case from those where

the photographs showed the wounds suffered by the victim or victims

for whose death the defendants were on trial. Erazo at 494.

      The photographs in this case fall precisely into those

distinguished from the Erazo photographs. They were taken at the

crime scene and assisted the trial court in visualizing that scene. They

showed the wounds suffered by the victim alleged in the indictment and

the weapons used. They were illustrative of the testimony of Latasha

Brown and served to corroborate her testimony. That was crucial in

light of her admittedly being heavily under the influence of cocaine at

the time.

      In Reese the photograph was of the victim and her unborn child

lying in a casket. The fetus had been removed from her body after her

death. The unborn child was not named as a victim in the indictment.

Reese at 239. The Court of Criminal Appeals noted that the death of the

fetus was not a fact of consequence related to an issue in dispute. Reese


                                   18
at 242. The court held that the photograph that included the unborn

child did not depict facts relevant to the fact finders determination of

the case and that the photograph of a tiny, innocent, vulnerable unborn

child suggested that the jury’s decision would be made on an emotional

basis. Reese at 242.

      In this case the photographs were of the victim alleged in the

indictment taken at the crime scene and of other aspects of that scene.

They accurately reflected what had occurred and what was, by his own

admission, caused by the Appellant. They corroborated the testimony

of the sole witness to the crime and served as a comparison from which

the court could determine her credibility. They were not taken, as those

in Reese, with the intention to inflame the fact finder. The sentencing

hearing was before the trial court without a jury. It is impossible to say

that the judge was swept away improperly by emotions so as to make an

improper decision in the case as a result of the photographs.

      The photographs complained of in this case were all of the alleged

victim and all taken at the scene of the crime. In Jackson v. State, No. AP-

75,707, 2010 Tex. Crim. App. Unpub. LEXIS 30 (Tx. Cr. App. 2010), not

designated for publication, the defendant attempted to rely upon both

Erazo and Reese when contesting the admission of crime scene and


                                    19
autopsy photographs under Rule 403. In affirming the admission of

those photographs the Court of Criminal Appeals distinguished them

from those in Erazo and Reese because they were photographs of the

victim named in the indictment, whereas the photographs in those cases

were not.     The Court went on to note, “Although some of the

photographs contained gruesome depictions of the victim’s head

injuries, these and other photographs simply reflected the brutality of

the offense.” Jackson op. pg. 2.

      The photographs which the Appellant complains of in this case

were properly admitted by the trial court. They were all of the crime

scene and the victim named in the indictment. They merely reflected

the extreme brutality of the offense committed by the Appellant and

displayed only the results of his own actions. They served as a point of

comparison from which the trial court, as fact finder, could judge the

credibility of the admittedly impaired eye witness to the crime. Those

photographs were not unfairly prejudicial to the Appellant. There is

nothing to show that the trial court was improperly influenced by them

so as to produce a purely emotional or irrational decision about the

punishment assessed. Because there was no unfair prejudice from the

evidence Rule 403 is inapplicable.


                                     20
Balancing Test

      In conducting a balancing test as required by Rule 403 the

following factors may be considered: (1) the probative value of the

evidence; (2) the potential to impress the fact finder in some irrational,

yet indelible way; (3) the time needed to develop the evidence; and (4)

the proponent’s need for the evidence. Montgomery, supra. Even had

the evidence had an element of unfair prejudice the probative value of

the evidence would not have been substantially outweighed by that

unfair prejudice.

Probative Value of the Evidence

      The Appellant concedes that the challenged photographs had

probative value as to the extent of the injuries suffered by Karen

Edwards and as to his own culpable mental state, however, he attempts

to dismiss that value because of his plea of guilty. (Appellant’s Brief at

pg. 23). There was no plea bargain as to punishment. The offense of

murder carries a wide range of punishment, from 5 years to 99 years or

life. Sections 12.32 and 19.02, Texas Penal Code. Upon the Appellant’s

election it was the duty of the trial court to decide where, within that

range, punishment for this offense should be assessed.




                                    21
      At a punishment hearing evidence may be offered as to any matter

the court deems relevant to sentencing, specifically including the

circumstances of the offense. Article 37.07(3), Texas Code of Criminal

Procedure. Whether or not the sentencing hearing occurs after a plea of

guilty or a contested trial that evidence is relevant and admissible on

the question of punishment to be assessed.

      The photographs in this case, taken of the victim at the crime

scene and the scene itself, visually illustrated the circumstances of the

commission of the offense. They also gave the trial court a basis for

comparison allowing it to judge the credibility of the eye witness. They

were of great probative value.

Potential to Impress Fact Finder in Irrational and Indelible way

      The Appellant argues that the photographs have a potential to

impress the fact finder in an irrational and indelible way due to their

depiction of the body of the victim at the crime scene, the place where

the murder occurred and the blood on the sidewalk where he dragged

her. He also says that the photographs of the flashlight and sword used

by him in the murder had such a potential.

      The Appellant says that these photographs “appealed to the trial

judge’s emotions and encouraged her to make her punishment decision


                                   22
on an emotional basis without regard to the probative force of the

evidence.” (Appellant’s Brief at pg. 26). The record does not support

that speculation. The court uttered not one word indicating it was

sentencing the Appellant because the photographs inflamed emotion

that overcame its ability to make a rational decision based on the

evidence. This was the trial court, not a jury, making the decision and

the danger of such an emotional decision based upon unfairly

prejudicial evidence is greatly reduced under those circumstances. Ex

Parte Twine at 668.

      Contrary to the Appellant’s theory, the mere nature of the

photographs as gruesome is insufficient to show the required potential

to unfairly prejudice the trial court.     They merely reflected the

disagreeable realities of the brutal crime the Appellant committed and

which the trial court properly considered in making the punishment

decision. They were not inflammatory and nothing indicates the trial

court was inflamed by them. Chamberlain at 237. The evidence of an

extremely brutal crime certainly logically explains the assessment of a

life sentence and it cannot be said that such a decision resulted from an

improper emotional basis as a result of the photographs as opposed to

all of the evidence regarding the circumstances of the murder.


                                   23
Time Needed to Develop Evidence

      The Appellant concedes that the State did not use an inordinate

amount of time during the hearing to the admission of the photographs.

(Appellant’s Brief at pg. 26).

State’s Need for the Evidence

      The Appellant begins by stating that the State’s need for the

photographs as evidence was to show his culpable mental state and the

extent of the victim’s injuries, ignoring any other need for the evidence.

He then argues that these were not at issue because of his plea of guilty.

This is incorrect.

      The issue before the trial court was the punishment to be

assessed for the offense the Appellant committed. The circumstances of

that offense were admissible and vital so that the judge could make a

decision on that issue. The fact that he entered a plea of guilty had no

effect upon the duty of the court, nor did it render evidence of the

circumstances of the offense inadmissible or improper. Article 37.07(3),

Texas Code of Criminal Procedure. By his plea the Appellant admitted

that he intentionally and knowingly murdered Karen Edwards by

shooting her with a gun and cutting and stabbing her with a knife. His

admission did not include the circumstances of the commission of that


                                   24
offense. Those circumstances were not only highly relevant to the

decision of the trial court, but were necessary to make a rational

decision on that issue and were admissible on punishment by statute. It

is illogical and self-serving to suggest that the trial court as fact finder

on punishment should be unable to learn of the circumstances of the

offense in assessing punishment beyond the admitted elements of the

offense set out in the indictment. Clearly Ms. Brown’s testimony was

admissible at the sentencing hearing and the photographs were visual

representations of that testimony. The State had both a duty and a need

to provide that evidence to the court so that it could determine the

punishment to be assessed.

Balancing

      The photographs had great probative value as to the

circumstances of the commission of the offense going to the issue of the

proper assessment of punishment. They were of probative value in the

assessment by the trial court of the credibility of Ms. Brown, the eye

witness to the murder, and as to the circumstances of the crime

committed. The Appellant’s conclusion that they “doubtless” had an

emotional impact on the experienced trial judge is without any basis in

fact or the record. His view seems to be that because the photographs


                                    25
prejudiced him by showing the results of his own actions that prejudice

must have thus been unfair. Those photographs were properly before

the trial court and could be considered in assessing punishment and it

was not at all unfair to allow the court to know what the Appellant had

done.

        The Appellant’s plea of guilty to the offense charged in the

indictment, contrary to his assertion, has no effect upon the

admissibility or the probative value of the evidence of the circumstances

of the offense as bearing on the punishment to be assessed. There need

not have been a contested issue on the extent of Edward’s injuries nor

the Appellant’s culpable mental state in order to make the evidence of

the circumstances of the offense probative on punishment.             The

Appellant’s plea of guilty without a plea bargain is what put the issue of

proper punishment before the court and rendered the evidence as to the

circumstances of the offense probative and fair.

        The State’s need for the evidence is not restricted to the

Appellant’s incorrect representation of the basis for that need. Even

with the offense admitted by him, the State still “needed” to present the

circumstances of the offense to the court for consideration as to

punishment to be assessed. It did not need for culpability or the extent


                                   26
of the injuries to the victim to be contested in order to do so. The

photographs were visual evidence accompanying the oral testimony of

Ms. Brown and were not cumulative, Chamberlain at 237, and their

evidentiary power emanated from nothing more than what the

Appellant had done. Sonnier at 519. The need for that evidence in order

to provide the trial court with a rational basis for the assessment of

punishment was great.

      The essence of the Appellant’s complaint is that, in his view the

pictures are gruesome and, therefore, their probative value is

substantially outweighed by the danger of unfair prejudice and that the

fact that he pled guilty and Ms. Brown testified to the matters contained

in the photograph rendered them unnecessary and irrelevant.

      In Jean v. State, No. AP-76,601, 2013 Tex. Crim. App. Unpub. LEXIS

785 (Tx. Cr. App. 2013), not designated for publication, the Court of

Criminal Appeals, in affirming the decision of the trial court to admit

photographs of the victim taken at the crime scene over a Rule 403

objection stated:

            “Photographs depicting the location of the body and
            the victim’s injuries are relevant. And even if photographs
            are gruesome, under Rule 403 their probative value
            are not substantially outweighed by the danger of unfair



                                   27
            prejudice if they ‘are no more gruesome than the crime
            scene itself as it was found by the police.’ Likewise, under
            Rule 403, photographs of a victim’s injuries are admissible if
            they show ‘only the injuries that the victim received and are
            no more gruesome than would be expected.’ Moreover, the
            fact that the jury also heard testimony regarding the
            injuries depicted does not reduce the relevance of the visual
            depiction.”

                                                        Jean, Op. at pg. 5.

That is precisely the situation in this case and the probative value of

these photographs is, likewise, not substantially outweighed by the

danger of unfair prejudice.

      In the end all of the factors, taken individually and together,

support the admission of the complained of photographs over the

Appellant’s Rule 403 objection and the trial court did not abuse its

discretion in doing so.

Harmless

      Non-constitutional error that does not affect substantial rights

must be disregarded. Rule 44.2(b), Texas Rules of Appellate Procedure.

In this case the trial court did not err in admitting the photographs. Had

that not been the case, however, in light of the Appellant’s plea of guilty

to the allegations in the murder and Latasha Brown’s testimony that the

Appellant, her close friend, shot Karen Edwards four times, twice in the



                                    28
head, over a period of more than an hour (RR3-39) and then when she

would not stop breathing beat her in the face with a flashlight, stepped

on her neck, cut her on the neck and then hacked her with a sword,

before dragging her body by the ankles across the street and dumping it

behind a vacant house, it could not be said that the photographs affected

the Appellant’s substantial rights.

      The testimony coupled with the Appellant’s judicial confession

established an extremely brutal and heinous murder.            Whatever

gruesomeness that may be found in the photographs consisted of a

visual representation of Brown’s testimony as to the circumstances of

the offense. The Appellant never contested the admissibility of that

testimony. The State respectfully submits that it cannot be reasonably

concluded that the outcome of the punishment hearing would have been

different had the trial court excluded the photographs. Had the trial

court erred the error would have clearly been harmless.




                                      29
                                PRAYER

      The State of Texas respectfully prays that the judgment of

conviction herein be, in all things, be affirmed.

                                            Respectfully Submitted,

                                            HENRY GARZA
                                            District Attorney

                                            /s/
                                            BOB D. ODOM
                                            Assistant District Attorney
                                            P.O. Box 540
                                            Belton, Tx 76513
                                            (254) 933-5215
                                            FAX (254) 933-5704
                                            DistrictAttorney@co.bell.tx.us
                                            SBA No. 15200000


     CERTIFICATE OF COMPLIANCE WITH RULE 9

      This is to certify that the State’s Brief is in compliance with Rule 9

of the Texas Rules of Appellate Procedure and that portion which must be

included under Rule 9.4(i)(1) contains 5,110 words.




                                            /s/
                                            BOB D. ODOM
                                            Assistant District Attorney




                                     30
                  CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of this brief has been

served upon, E. Alan Bennett, Counsel for Appellant, by electronic

transfer via Email, addressed to him at abennett@slmpc.com on this

28th day of August, 2015.




                                           /s/
                                           BOB D. ODOM
                                           Assistant District Attorney




                                    31
