                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-11-00548-CR

                                         La-John GABRIEL,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 144th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2010CR8558
                            Honorable Angus McGinty, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: December 31, 2012

AFFIRMED

           A jury found La-John Gabriel guilty of murder and assessed a sentence of ninety-nine

years in prison. On appeal, Gabriel challenges the trial court’s denial of his motion to suppress

multiple statements made to law enforcement officials. Gabriel also asserts the trial court erred

when it admitted, over objection, certain crime scene photos. We overrule Gabriel’s points of

error and affirm the trial court’s judgment.
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                                            BACKGROUND

       On June 30, 2010, Khristopher Jones was found shot to death on an outside stairway of

the apartment building where he lived. Gabriel was determined to be a person of interest, and

officers made contact with him outside of a different apartment building where he lived with his

mother. The officers informed Gabriel they were investigating a homicide, and they asked

Gabriel if he would agree to go to the police station to speak with a detective. Gabriel agreed.

Officers drove Gabriel and his mother to the station, and Gabriel spoke with Detective Salame.

After the interview, an officer drove Gabriel and his mother home. Based on statements Gabriel

made during the interview, Detective Salame acquired probable cause to arrest Gabriel for

murder and obtained a warrant for Gabriel’s arrest. Gabriel was arrested and taken back to the

station. After arriving at the station, Detective Salame spoke to Gabriel a second time. During

this interview, Gabriel made more incriminating admissions before invoking his right to counsel.

Due to Gabriel’s invocation of his right to counsel, the interview was terminated.

       Gabriel was arraigned and subsequently indicted for murder. Prior to trial, Gabriel filed

two motions to suppress his statements. Following a hearing, the trial court denied the motions

to suppress, with a few minor exceptions. The jury found Gabriel guilty of murder, and he was

sentenced to ninety-nine years in prison.

                              ADMISSIBILITY OF THE STATEMENTS

   A. Facts

       On June 30, 2010, in response to a call reporting gunshots being fired, officers were

dispatched to the apartment complex where Jones was shot to death. Detectives Jesse Salame, a

detective for the Homicide Unit of the San Antonio Police Department (SAPD), and John

Schiller, a detective with the Gang Unit of the SAPD, were assigned to investigate the case and

reported to the crime scene. Although no witnesses to the shooting could be located, Detective
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Salame was able to develop several persons of interest, including Gabriel.         At this point,

Detective Salame did not have a prime suspect. On July 1, 2010, Detective Salame provided

Detective Schiller with the names of the persons of interest he had developed, and he asked

Detective Schiller to locate these men, gather information about them, and ask them if they were

willing to go to the police station to talk with Detective Salame. Detective Salame told Detective

Schiller he only wanted to talk to these individuals and made it clear there was not probable

cause for an arrest.

       Officers Joseph Garza (J. Garza), Marco Garza (M. Garza), and Mark Molter were

members of the Gang Unit who assisted in the investigation. They discovered that Gabriel

frequented the Nob Hill apartment complex and then drove around the area of these apartments

attempting to locate the persons of interest. After canvassing the area, some officers parked in

the Nob Hill complex in hopes of spotting Gabriel.

       Subsequently, a dark-colored SUV that fit the description of a vehicle associated with

Gabriel arrived at the complex and parked near the building where officers believed Gabriel

lived. After the vehicle was parked, Officer J. Garza approached the occupants and questioned

them about Gabriel’s whereabouts. The driver, Casaundra Grant, told the officers she was there

to pick up Gabriel. Both Grant and the other occupant had active warrants and were arrested on

unrelated charges.

       Not long after the SUV arrived, a white truck drove up and parked in front of the building

where Gabriel was thought to live. Immediately, Officers Molter and M. Garza approached the

truck and looked inside. Officer M. Garza recognized Gabriel in the backseat of the truck and

signaled this to Officer J. Garza, who had come over to the truck to assist. Gabriel was drinking

a beer and, because the officers knew Gabriel was nineteen years old, the officers knew he was a

minor in possession. There is conflicting testimony about what happened next. Officer M.
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Garza testified that Officer J. Garza opened the door and grabbed Gabriel, while Officer J. Garza

testified that he asked Gabriel to exit the vehicle. Gabriel was then subjected to a pat-down

search, handcuffed, and detained for being a minor in possession.

       Detective Schiller was conducting surveillance at the Nob Hill apartment complex that

evening. After the dark-colored SUV pulled up, Detective Schiller made contact with Gabriel’s

mother, Erica Gabriel, who was walking near the SUV. Detective Schiller never approached

either vehicle.   Gabriel’s mother appeared intoxicated but cooperated with officers.      After

Gabriel was identified and handcuffed, a couple of officers walked him to where Detective

Schiller was standing. Detective Schiller spoke with the officers and learned that Gabriel was

handcuffed and detained for a minor in possession; Gabriel was never placed under arrest. After

learning this information, Detective Schiller instructed the officers to remove the handcuffs and

then told Gabriel a homicide detective wanted to talk to him at the police station downtown.

Gabriel was informed that he did not have to go to the police station. Nevertheless, Gabriel

agreed to go downtown to speak to Detective Salame, and Officer Molter drove Gabriel there.

Another officer also took Gabriel’s mother downtown to be with Gabriel. Gabriel was not in

handcuffs during the ride to the police station.     During the suppression hearing, Detective

Schilling testified that Gabriel did not appear to be under the influence of drugs or alcohol.

Detective Schiller also testified that if Gabriel had declined to go downtown, he would have

released Gabriel because he did not have probable cause for an arrest.

   B. Gabriel’s First Interview

       Around 2:50 a.m., Gabriel arrived at the police station and was placed in an interview

room equipped with a recording device. Shortly thereafter, Detective Salame entered the room

and began talking with Gabriel. Gabriel indicated that he was handcuffed earlier, but that the

officers had removed the handcuffs. Gabriel was not in handcuffs during the interview. At the
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outset, Detective Salame told Gabriel that he was not under arrest and was free to leave.

Detective Salame also told Gabriel that he was there voluntarily, and Gabriel asked what that

meant. Detective Salame explained that it meant Gabriel had come to the station house on his

own and would leave on his own. Gabriel replied, “No, I didn’t come on my own, [the officers]

drove me.” Detective Salame then reaffirmed that Gabriel was not under arrest and could leave

anytime, and Gabriel acknowledged understanding this. During the interview, Detective Salame

told Gabriel that he was free to leave several more times. In fact, Detective Salame promised

Gabriel that no matter what he said, he would be taken home after the interview.

       Because Gabriel was not under arrest, Detective Salame did not warn Gabriel of his

rights prior to beginning the interview. About ten minutes into the interview, however, Gabriel

said he knew the police were looking for him, but he did not realize the police “were going to

come take [him] for questioning.” Detective Salame stated, “You didn’t have to come,” and

Gabriel responded, “You[’re] right, sir.” Seconds later, however, Gabriel claimed, “But the

police say I had to come or I was gonna be detained or some shit like that.” Detective Salame

asked, “They said you had to come?” and Gabriel responded, “Yeah, they said I had to come.”

Detective Salame stopped the interview and, out of caution, warned Gabriel of his rights. After

reading Gabriel his rights, Detective Salame asked, “Do you understand these rights?” Gabriel

stated he did, but then asked, “What [does] that mean?” Detective Salame responded that he

believed Gabriel felt as though he was under arrest so he wanted to warn him of his rights, and

Gabriel stated “I’m not under arrest.” Detective Salame then asked if he understood his rights,

and Gabriel said yes. The two continued conversing for almost thirty more minutes. After the

interview concluded, Gabriel and his mother were taken home.

       After the interview had finished and while waiting for the police car to arrive to escort

Gabriel and his mother home, Officer M. Garza accompanied Gabriel outside the back of the
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police station, for security purposes, so Gabriel could smoke a cigarette. Gabriel was not

detained or handcuffed. While standing with Officer M. Garza, Gabriel began rambling “that he

had to put the guy down because that’s just what he had to do.” Officer M. Garza testified he

never initiated any conversation with or posed any questions to Gabriel. After Gabriel finished

smoking two cigarettes, Officer Molter drove Gabriel and his mother back to their apartment.

    C. Gabriel’s Second Interview

        During the first interview, Gabriel made incriminating statements that supplied Detective

Salame with probable cause to arrest Gabriel for Jones’s murder. Detective Salame obtained an

arrest warrant, and around 5:30 a.m. Gabriel was arrested at his home and brought back to the

police station. Upon his arrival at the police station, Gabriel was again placed in an interview

room equipped with a recording device. Unlike his first visit to the stationhouse, Gabriel was

handcuffed. Also unlike the previous interview, Detective Salame began this interview by

informing Gabriel that he was under arrest and warning Gabriel of his rights.

        When Detective Salame entered the interview room, Gabriel immediately told Detective

Salame he was tired. After being read his rights and asked if he understood, Gabriel said he did

not understand them and asked that they be read again. Detective Salame warned Gabriel of his

rights again, this time more slowly. After being warned the second time, Gabriel stated that he

understood his rights. Detective Salame testified that Gabriel appeared coherent during the

interview, although there were a few instances during the questioning when Gabriel appeared

confused. 1 At one point during this interview, Detective Salame asked Gabriel what he did with

the gun, and Gabriel responded that he threw it in the woods. In an attempt to determine the

exact location of the gun, Detective Salame told Gabriel that he would be charged with


1
  This confusion is evident from the videotaped interview, which was admitted at trial and incorporated into the
appellate record.

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additional offenses if the gun was found and used to kill someone else. After about twenty-eight

minutes of talking with Detective Salame, Gabriel invoked his right to counsel. The trial court

ruled that the remainder of Gabriel’s statement was inadmissible

       After the second interview was terminated, Officers Tim Esp and Molter transported

Gabriel from the police station to the magistrate’s office to be arraigned. While in the patrol car,

Gabriel spontaneously commented that he gave the gun to his “homeboy” Ray. Neither officer

had initiated a conversation with Gabriel or asked Gabriel any questions regarding his

spontaneous admission. Officer Esp specifically remembered Gabriel’s statement because he

recognized the name Ray. Officer Esp had spoken to an individual named Ray Anderson the

previous night, and Anderson had acknowledged knowing Gabriel. After taking Gabriel to the

magistrate’s office, the officers contacted Anderson and obtained the gun from his residence.

   D. Standard of Review

       We review the trial court’s ruling on a motion to suppress under a bifurcated standard.

Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d

85, 89 (Tex. Crim. App. 1997) (en banc). We defer to the trial court’s determinations on

historical facts supported by the record, especially when they are based on credibility

assessments, and mixed questions of law and fact that turn on credibility evaluations. State v.

Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008); Guzman, 955 S.W.2d at 89. We review

de novo mixed questions of law and fact not turning on credibility assessments and purely legal

questions. Leza v. State, 351 S.W.3d 344, 349 (Tex. Crim. App. 2011); Carmouche, 10 S.W.3d

at 327. Viewing the evidence in the light most favorable to the trial court’s ruling, the ruling will

be upheld if it is supported by the record and correct under any theory of law applicable to the

case. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d

853, 856 (Tex. Crim. App. 2000) (en banc).
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   E. Was Gabriel in Custody During the First Interview?

       Gabriel contends the statements made in his first interview with Detective Salame were

inadmissible because they were a product of custodial interrogation made without proper

warnings. The trial court admitted Gabriel’s statements made during the first interview, finding

that the statements were voluntarily made and not the product of custodial interrogation.

       Every person has the right to be free from compelled self-incrimination. U.S. CONST.

amend. V, XIV; Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007). To protect this

right, the individual must be warned of his constitutional and statutory rights prior to custodial

interrogation. Miranda v. Arizona, 384 U.S. 436, 442–57, 467–79 (1966); see also TEX. CODE

CRIM. PROC. ANN. art. 38.22 § 3(a)(2) (West 2005); Contreras v. State, 312 S.W.3d 566, 582

(Tex. Crim. App. 2010).       In order for a subsequent statement to be admissible in the

prosecution’s case-in-chief, the individual also must have knowingly, intelligently, and

voluntarily waived his rights. Berghuis v. Thompkins, 130 S. Ct. 2250, 2261 (2010); see also

TEX. CODE CRIM. PROC. ANN. art. 38.22 § 3(a)(2); Herrera, 241 S.W.3d at 525. Additionally,

Texas law requires oral statements made during custodial interrogation to be electronically

recorded. TEX. CODE CRIM. PROC. ANN. art. 38.22 § 3(a)(1). These requirements apply only if

the individual was in custody at the time of the questioning.

       An individual is in custody “if, under the circumstances, a reasonable person would

believe his freedom of movement was restrained to the degree associated with a formal arrest.”

Herrera, 241 S.W.3d at 525 (quoting Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App.

1995)) (internal quotation marks omitted); see also California v. Beheler, 463 U.S. 1121, 1125

(1983) (per curiam).    “The ‘reasonable person’ standard presupposes an innocent person.”

Dowthitt, 931 S.W.2d at 254 (citing Florida v. Bostick, 501 U.S. 429, 438 (1991)). A custody

determination is made by looking at a totality of the circumstances. Stansbury v. California, 511
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U.S. 318, 322 (1994) (per curiam). However, only objective circumstances of the interaction are

considered, unless an officer manifests his subjective intentions to the individual. Id. at 323–25;

Dowthitt, 931 S.W.2d at 254.

       The Supreme Court has announced a two-part inquiry for determining whether an

individual is in custody for purposes of Miranda. See Howes v. Fields, 132 S. Ct. 1181, 1189–90

(2012). First, we must decide whether a “reasonable person would have felt he or she was not at

liberty to terminate the interrogation and leave.” Id. (quoting Thompson v. Keohane, 516 U.S.

99, 112 (1995)) (internal quotation marks omitted). If we answer in the affirmative, we must

next consider “whether the relevant environment presents the same inherently coercive pressures

as the type of station house questioning at issue in Miranda.” Id.

       The Texas Court of Criminal Appeals has identified a nonexclusive list of four situations

that may result in a restriction of one’s freedom sufficient to place a person in custody:

       (1) when the suspect is physically deprived of his freedom of action in any
           significant way[;]

       (2) when a law enforcement officer tells the suspect that he cannot leave[;]

       (3) when law enforcement officers create a situation that would lead a reasonable
           person to believe that his freedom of movement has been significantly
           restricted[;] and

       (4) when there is probable cause to arrest and law enforcement officers do not tell
           the suspect that he is free to leave.

Dowthitt, 931 S.W.2d at 255 (citing Shiflet v. State, 732 S.W.2d 622, 629 (Tex. Crim. App.

1985) (en banc)). The fourth situation does not apply in this case, and the first three situations

involve restricting freedom of movement to the degree associated with a formal arrest. Id.

Although Gabriel was handcuffed and detained immediately before speaking with Detective

Schilling, at the time Gabriel was asked if he was willing to speak with a homicide detective,

Gabriel was not in handcuffs. There were, however, two officers standing by while he spoke
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with a third officer, Detective Schilling. During this discussion, Detective Schilling expressly

told Gabriel that he did not have to go downtown. Gabriel stated that he was willing to go

downtown, and he was escorted in a patrol vehicle, free of restraints, by an officer. During the

interview, Gabriel was never placed in handcuffs and was repeatedly advised that he was not

under arrest and was free to leave. In fact, Detective Salame promised Gabriel that he would be

taken home after the interview, regardless of what Gabriel said. During the interview, Gabriel

made conflicting statements about his custodial status, once indicating that he was told he had to

come to the police station, but multiple times affirming that he was not under arrest.

       The third situation presented in Dowthitt v. State is the only custodial situation that might

apply under these circumstances. Dowthitt, 931 S.W.2d at 255. To help determine whether a

reasonable person in Gabriel’s position would have believed his freedom of movement was

restrained to the degree associated with a formal arrest, we must consider: (1) the location of the

questioning; (2) its duration; (3) statements made during the interview; (4) whether the

individual was restrained during the questioning; and (5) whether the individual was released

after the questioning. Howes, 132 S. Ct. at 1189 (citations omitted).

       As to the first consideration, the location of the interview at the station house weighs in

favor of a custodial finding. The third factor listed above is neutral since Gabriel indicated he

did not feel his presence was voluntary while also acknowledging, multiple times, that he was

not under arrest. Both Detective Schilling and Detective Salame expressly advised Gabriel that

he was not under arrest, not obligated to speak with police, and free to leave. In light of these

circumstances, the trial court reasonably could have given weight to either position.

       However, three of the considerations mentioned above unquestionably weigh in favor of

a noncustodial interview. The interview lasted about thirty minutes, far short of the length of

interrogations the Court of Criminal Appeals has held to be inherently coercive. See Dowthitt,
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931 S.W.2d at 257. Additionally, Gabriel was not restrained at the time he was asked to go

downtown to speak with a homicide detective or during his interview with Detective Salame.

Although Gabriel had previously been restrained, the detectives made it abundantly clear that

Gabriel was free to leave, thereby removing any taint of the previous detention.          Also of

importance to a finding of a noncustodial interaction is the fact that Gabriel was taken home after

his interview. Another circumstance weighing in favor of a noncustodial finding is the fact that

Gabriel’s mother was allowed to accompany him to the police station.

       Because the trial court is in the best position to judge witness credibility and to make

factual assessments, we cannot say the trial court abused its discretion in ruling that Gabriel was

not in custody during his first interview with Detective Salame. See Herrera, 241 S.W.3d at

526–27. Gabriel was involved in a noncustodial interview and, thus, was not entitled to the

procedural safeguards required for custodial interrogation. Miranda, 384 U.S. at 477; TEX.

CODE CRIM. PROC. ANN. art. 38.22 § 5.

       Gabriel also claims his statement made in Officer J. Garza’s presence that he “put the guy

down” was fruit of the poisonous tree and would not have been made but for his illegal custody.

The trial court concluded, however, that this statement was “not in response to questioning by

the police,” but instead, was voluntarily made. Voluntary statements are admissible whether or

not the individual was in custody at the time of the statement. TEX. CODE CRIM. PROC. ANN. art.

38.22 § 5; Dossett v. State, 216 S.W.3d 7, 24 (Tex. App—San Antonio 2006, pet. ref’d).

   F. Did Gabriel Waive His Rights During the Second Interview?

       Gabriel argues his statement during the second interview was involuntary because he did

not understand the warnings and because he was coerced by Detective Salame’s statement that

he could be charged with additional offenses if his gun was found and used in another crime.

The trial court admitted the contents of Gabriel’s second recorded statement prior to his
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invocation of the right to counsel. The court determined that although Gabriel was in custody, he

“knowingly, intelligently, and voluntarily waived his rights.” The court also concluded that

Gabriel was given and acknowledged all of the warnings required by Article 38.22.

       The State bears the burden of establishing a knowing, intelligent, and voluntary waiver of

a defendant’s rights under Miranda and Article 38.22. Miranda, 384 U.S. at 475; Leza, 351

S.W.3d at 349, 351; Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010). Waiver must be

proven by a preponderance of the evidence. Miranda, 384 U.S. at 475; Leza, 351 S.W.3d at 349,

351; Joseph, 309 S.W.3d at 24. In determining whether there was a valid waiver of Gabriel’s

rights, we must look to the totality of the circumstances, “including the background, experience,

and conduct of the accused.” North Carolina v. Butler, 441 U.S. 369, 374–75 (1979); see Leza,

351 S.W.3d at 349, 352–353; Joseph, 309 S.W.3d at 25.

       The United States Supreme Court has announced “two distinct dimensions” of the waiver

inquiry. First, “waiver must be ‘voluntary in the sense that it was the product of a free and

deliberate choice rather than intimidation, coercion, or deception.’” Berghuis, 130 S. Ct. at 2260

(quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). Second, a waiver is valid only if it is

“made with full awareness of both the nature of the right being abandoned and the consequences

of the decision to abandon it.” Id. (quoting Burbine, 475 U.S. at 421) (internal quotation marks

omitted).

       Gabriel contends he did not understand the warnings provided and, as a result, did not

voluntarily waive his rights. When Detective Salame first entered the interview room, Gabriel

immediately complained that he was tired, to which Detective Salame responded that he was also

tired. Next, and prior to any questioning, Detective Salame advised Gabriel of his rights. After

reading these rights the first time, Gabriel stated that he did not understand what they meant.

Consequently, Detective Salame read these rights to Gabriel again more slowly and, as he did so,
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Gabriel leaned in and focused more closely on what was being said. After the second, slower

warning, Gabriel acknowledged understanding his rights, and he proceeded to answer Detective

Salame’s questions.

       During the suppression hearing, Gabriel’s mother testified that she told some of the

officers that Gabriel was “mentally insane” and “mentally retarded” before Gabriel was taken to

the police station for the first interview. However, none of the officers testified that this was

communicated to them. Moreover, a mental evaluation of Gabriel was never performed, and

there is no other evidence in the record to support this assertion. Because the trial court is in the

best position to evaluate a witness’s credibility, the trial court could have properly disbelieved

the testimony of Gabriel’s mother.

       On appeal, Gabriel’s counsel asks us to recognize, based on the recorded interviews, that

Gabriel’s behavior “indicated that something was amiss” and that he was “slow-witted,” pointing

specifically to Gabriel’s difficulty recalling who he was with the night of the crime and the fact

that he counted using his fingers. This argument, however, was never presented to the trial court.

At the suppression hearing, multiple officers testified that Gabriel seemed competent and was

acting normally. Additionally, the videos show Gabriel frequently changing his answers to

Detective Salame’s questions after Detective Salame indicated that he could prove Gabriel’s

answer was inaccurate. Gabriel’s vacillating answers could be interpreted as his struggle to

determine which people to name without placing himself at the scene of the crime. At the same

time, Gabriel could genuinely have been confused and had trouble answering relatively simple

questions. Regardless, the trial court was in the best position to make any determination on

whether Gabriel’s intelligence affected his ability to understand his rights, and because this

argument was not raised in the trial court, we decline to address it. See TEX. R. APP. P. 33.1;

Ross, 32 S.W.3d at 855–57.
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       Similarly, the video of the second interview does not indicate that Gabriel failed to

understand the warnings after being advised of them a second time. In contrast, his invocation of

his right to counsel suggests that he did understand the warnings and, indeed, chose to assert a

right he was informed he had. Furthermore, the fact that Gabriel told Detective Salame that he

did not understand the warnings after hearing them the first time and wished to have them read

again indicates that Gabriel was not opposed to asking for clarification when needed.

Accordingly, when Gabriel acknowledged understanding his rights after a second, slower

reading to which he was more attuned, the trial court could have determined that Gabriel truly

did understand.    The trial court’s determination that Gabriel understood his rights and

knowingly, intelligently, and voluntarily waived them is not outside the zone of reasonable

disagreement.

       Gabriel also claims that his statement that he gave the gun to his homeboy Ray was the

product of coercion.    The Court of Criminal Appeals has declared that some types of

misrepresentations by police during interrogations may constitute coercion. Green v. State, 934

S.W.2d 92, 99–100 (Tex. Crim. App. 1996). The key is whether, under the totality of the

circumstances, the statement by police was “such as to overbear the will of the accused and bring

about a confession not freely determined.” Id. at 99–100. Other factors considered in Green

include: (1) whether the misrepresentation implicated extrinsic considerations that could be the

basis of an irrational choice to confess; (2) whether the misrepresentation would cause doubt as

to the reliability of the confession or cause even an innocent person to confess; (3) age and

intelligence; (4) experience with the criminal justice system; and (5) the fact that Miranda

warnings were given multiple times.

       Here, Detective Salame informed Gabriel that if someone found the gun he claimed to

have tossed in the woods, he would be charged for any crimes committed with it. Unlike the
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statements of concern in Green, this statement by Detective Salame is likely not a

misrepresentation. Moreover, although Detective Salame’s warning may have introduced an

extrinsic consideration beyond Gabriel’s guilt or innocence in Jones’s murder, it is not the type

that would cause an innocent person to confess falsely (especially since an innocent person

would probably not know where the gun was located), nor was it so coercive that it overbore

Gabriel’s will to confess to the gun’s location. This latter reason is demonstrated by Gabriel’s

behavior itself. Gabriel did not immediately respond when Detective Salame discussed possible

future charges, but instead waited until he was in the patrol car on the way to the magistrate’s

office. This shows that Gabriel made the statement only after consideration of the possible

consequences of not confessing; such careful deliberation is the opposite of overbearing one’s

will.

        Additionally, Gabriel was nineteen and there was no evidence that he was not of average

intelligence other than his mother’s claim. The record also indicates Gabriel had been brought

downtown for questioning in an unrelated crime only a few months before Jones’s murder. As

such, Gabriel likely did not feel the same anxiety and compulsion to respond as would someone

who had no prior interactions with detectives. Moreover, as previously noted, Gabriel was

warned of his rights twice before the interrogation began to ensure his understanding. He was

also warned of his rights during his first interview only hours earlier. All of these factors suggest

the statement at issue was not the result of coercion.

        Like Gabriel’s statement, “I had to put the guy down,” the trial court ruled Gabriel’s

statement that he gave Ray the gun was not in response to questioning and was voluntarily made.

Again, the trial court was in the best position to judge the witness’s demeanor and, based on the

record, we cannot say the trial court abused its discretion in admitting this statement.



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                            ADMISSIBILITY OF THE PHOTOGRAPHS

       Gabriel complains that the probative value of nine crime scene photographs admitted into

evidence by the State is substantially outweighed by unfair prejudice under Texas Rule of

Evidence 403. Specifically, Gabriel asserts: (1) the photos “are gruesome color photos of the

body, including close-ups with two showing pubic hair”; (2) the photos were unnecessarily

duplicative of the autopsy photos, other photos that were not objected to, and testimony by police

officers; and (3) the photos were unnecessary to explain cause of death or to rebut a defensive

theory of the case.

   A. Standard of Review

       “The admissibility of a photograph is within the sound discretion of the trial judge.”

Shuffield v. State, 189 S.W.3d 782, 786 (Tex. Crim. App. 2006); Prible v. State, 175 S.W.3d 724,

734 (Tex. Crim. App. 2005). Under an abuse of discretion standard, we must determine whether

the trial court’s ruling was so arbitrary that it is outside the zone of reasonable disagreement.

Casey v. State, 215 S.W.3d 870, 878 (Tex. Crim. App. 2007). An appellate court should “do

more than decide whether the trial judge did in fact conduct the required balancing between

probative and prejudicial values; ‘the trial court’s determination must be reasonable in view of

all relevant facts.’” Shuffield, 189 S.W.3d at 787 (quoting Santellan v. State, 939 S.W.2d 155,

169 (Tex. Crim. App. 1997)); Reese v. State, 33 S.W.3d 238, 241 (Tex. Crim. App. 2000).

   B. Rule 403—Was the Probative Value of the Crime Scene Photographs Substantially
      Outweighed by the Danger of Unfair Prejudice?

       The nine photos in dispute, State’s exhibits 31–39, are crime scene photos that depict

Jones’s body as it was found at the scene, as well as close-up photos of Jones’s wounds. All of

the photographs were presented in color, and in all of the photos Jones is without a shirt. Photo

31 is a full body shot of Jones on the stairs as he was found, covered in blood and brain matter


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with a cell phone in his hand. Photo 32 is simply a picture of Jones’s feet dangling on the

stairwell. Photos 33–34 are taken from farther away and show Jones’s body slumped on the

stairway; blood is not readily apparent. Photos 35–39 depict different images of each of Jones’s

wounds, some closer than others. In two of these photos, Jones’s pants have been partially

pulled down to show the wound to his abdomen, thus revealing Jones’s pubic hair.

       At trial, outside the presence of the jury, Gabriel lodged an objection to the admission of

the photos under Rule 403 and as an unnecessarily cumulative presentation of the evidence. The

trial court overruled these objections. Gabriel was allowed to object in front of the jury, and he

did. This objection was also overruled. We must now determine whether the trial court erred in

overruling Gabriel’s objections.

       Rule 403 states: “Although 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. Unfair prejudice occurs when evidence provides “an undue tendency to

suggest that a decision be made on an improper basis.” Reese, 33 S.W.3d at 240. Rule 403

favors admission of relevant evidence and, consequently, it carries the presumption that “relevant

evidence will be more probative than prejudicial.” Montgomery v. State, 810 S.W.2d 372, 389

(Tex. Crim. App. 1991) (en banc).

       The Court of Criminal Appeals has provided a nonexclusive list of four factors to

consider when analyzing a challenge to evidentiary rulings under Rule 403: (1) the probative

value of the evidence; (2) the extent that the evidence may “impress the jury in some irrational,

but nevertheless indelible way”; (3) the time needed to develop the evidence; and (4) the

proponent’s need for the evidence. Shuffield, 189 S.W.3d at 787; Montgomery, 810 S.W.2d at

389–90. Additionally, when considering a trial court’s ruling on the admissibility of a photo, we
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should consider the number of photos, the size of the photo, whether the photo is in color, the

detail depicted in the photo, the gruesomeness of the photo, whether the body is naked or

clothed, and whether the body had been altered in a way that would be detrimental to the

appellant. Shuffield, 189 S.W.3d at 787; Reese, 33 S.W.3d at 241.

       Turning to the four factors considered when examining a Rule 403 challenge, Gabriel

concedes the first and third factors weigh in favor of admission. Gabriel admits the photos are

probative and needed little time to develop a foundation for introduction. However, Gabriel

argues the second and fourth factors weigh in favor of exclusion. First, he asserts the photos

“possessed, by their nature, the potential to indelibly insinuate themselves into the minds of the

jury with such power as to prevent rational consideration of the case at hand.” Although the

photos were undoubtedly unpleasant to view, they were an accurate depiction of the crime scene.

All evidence offered by an opposing party will inherently be prejudicial, but “unfair prejudice”

results when the evidence tends to cause a decision to be based on an improper basis, such as

emotion, “without regard to the logical probative force of the evidence.” Casey, 215 S.W.3d at

879–80, 883. Because the photos were not likely to create an emotional response unrelated to

their probative value, we do not believe they impressed the jury in an irrational way.

       Next, Gabriel asserts the photos were unnecessary because they were duplicative of other

photos and testimony introduced. The Court of Criminal Appeals has rejected the notion that

photos accompanying testimony are cumulative of the testimony or without distinct probative

value. Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999). “Visual evidence

accompanying testimony is most persuasive and often gives the fact finder a point of comparison

against which to test the credibility of a witness and the validity of his conclusions” Id. In fact,

many witnesses testified that Jones was holding a cell phone in his right hand at the time of his

death. At least one witness also testified that Jones’s left hand was completely covered in blood
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and that this would not have been the case if Jones had been holding a weapon at the time he was

shot. The State used these facts to rebut Gabriel’s claim that he shot Jones because Jones was

reaching for something that Gabriel thought was a gun. The photographs showing a cell phone

in Jones’s right hand and blood covering his left hand corroborate the witnesses’ testimony and

allowed the jury to fully understand the details of the crime scene upon which police based their

conclusions. Because the photos were highly probative and likely did help the jury understand

the assertions and evidence offered at trial, they were not cumulative of other evidence. For the

same reasons discussed above, Gabriel’s argument that the photos were not necessary to rebut a

defensive theory also fails.

       Additionally, the fact that Jones’s pubic hair can be seen in two photos of the gunshot

wound to the abdomen does not tip the scale in favor of exclusion. Whether the body is clothed

is only one consideration when determining whether unfair prejudice substantially outweighs the

probative value of evidence. See Shuffield, 189 S.W.3d at 787. Indeed, the Court of Criminal

Appeals has many times decided that photos of naked bodies were admissible and that their

probative value was not substantially outweighed by their prejudicial effect. See, e.g., Gallo v.

State, 239 S.W.3d 757, 762–64 (Tex. Crim. App. 2007) (autopsy photographs of an unclothed

three-year-old child); Casey, 215 S.W.3d at 882–84 (nude, sexually explicit photos of multiple

women); Wyatt v. State, 23 S.W.3d 18, 29–30 (Tex. Crim. App. 2000) (photos of a child’s anus);

Santellan, 939 S.W.2d 155, 172–73 (Tex. Crim. App. 1997) (autopsy photos of a naked victim’s

body). In the context of nudity, the photos in this case are far less prejudicial than those in the

cases cited. Because the photos did not show Jones’s sexual organs and only showed his

abdomen to the extent necessary to view the gunshot wound, their prejudicial effect, if any, did

not substantially outweigh their probative value.



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       As a whole, the photos were highly probative evidence that did nothing more than depict

the crime scene, and they were unlikely to elicit an irrational decision. Cf. Reese, 33 S.W.3d at

240–44 (concluding that the probative value of photos of a murdered woman and her unborn

child lying in a coffin was substantially outweighed by unfair prejudice). A trial court does not

abuse its discretion simply because it admits gruesome photos. Paredes v. State, 129 S.W.3d

530, 540 (Tex. Crim. App. 2004); Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995)

(en banc). “[W]hen the power of the visible evidence emanates from nothing more than what the

defendant has himself done we cannot hold that the trial court has abused its discretion merely

because it admitted the evidence.” Sonnier, 913 S.W.2d at 519; see also Chamberlain, 998

S.W.2d at 237.

                                         CONCLUSION

       For the foregoing reasons, we conclude the trial court did not abuse its discretion in

admitting Gabriel’s statements or the crime scene photographs. Accordingly, the trial court’s

judgment is affirmed.


                                                 Catherine Stone, Chief Justice

DO NOT PUBLISH




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