                                 MEMORANDUM OPINION
                                        No. 04-11-00292-CR

                                            Glen DENSON,
                                               Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the 227th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2008CR8084
                          Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: July 25, 2012

AFFIRMED

           Glen Denson was convicted by a jury of capital murder. On appeal, Denson contends the

trial court erred in admitting testimony regarding statements made by one of the victims to three

people in violation of the Confrontation Clause and in admitting a crime scene video because its

prejudicial effect substantially outweighed its probative value.     We affirm the trial court’s

judgment.
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                                   CONFRONTATION CLAUSE

       In his first issue, Denson complains that the trial court erred in admitting statements made

by one of the victims, his wife, to two witnesses who discovered her body on a sidewalk and to

the first officer to arrive on the scene. Denson contends the admission of the testimony violated

his right to confrontation. The State responds that the testimony was properly admitted under

numerous theories. We hold the testimony was properly admissible as a dying declaration.

       Around 4:00 a.m., Rusty Banner found Sharon Denson lying on the sidewalk. As Banner

approached Sharon, he observed chunks of her skin coming off her body and part of her heel

hanging off. Sharon’s breathing was very shallow, and Banner called 911. Sharon was talking

to Banner in a whisper and told him that the house across the street was on fire, and her husband

“did it.” Banner reminded Sharon several times to keep breathing and to stay awake.

       Yvette Cheesebrew stopped a few minutes after Banner found Sharon. Cheesebrew

asked Banner if Sharon was still alive, and Banner told Cheesebrew that she was still breathing.

As Cheesebrew approached Sharon, she observed that Sharon’s feet were burned and the skin

was peeling off, and she looked smoky. Sharon’s lips were dry, cracked, and blistery and

appeared as if “they had like smoke damage on her face, lips.” Sharon told Cheesebrew that her

husband did this to her and had killed her boyfriend, Sidney Dees, in the house across the street.

Sharon was concerned about her children, who she told Cheesebrew were 15 and 11 years old.

Cheesebrew stated that she wrote down what Sharon told her because “if she didn’t live, I

wanted to make sure I knew as much about her.”

       Officer David Tillery arrived at the scene after the ambulance. Officer Tillery could

smell gasoline and burnt flesh coming off Sharon. The EMS personnel called Officer Tillery

over to show him that Sharon had several gunshot wounds in her upper torso, and Officer Tillery



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observed that most of Sharon’s body was burned.         As EMS personnel were cutting away

Sharon’s clothing, Officer Tillery observed that parts of her skin were tearing away with her

clothing. Officer Tillery was concerned with whether there were other victims or any suspects in

the area. Sharon told Officer Tillery that her husband had shot her and her friend and then

burned the house down.

        While investigating the house across the street, Officer Tillery located Dees’s body and

discovered that the house was on fire. After the fire was extinguished, EMS personnel were able

to enter and pronounced that Dees was deceased. Sharon was transported by air to the hospital

where she died a week later as a result of complications from the gunshot wounds and injuries

she suffered in the fire.

        Hearsay is a statement, other than one made by the declarant while testifying at trial,

offered in evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d). Although

hearsay is generally not admissible as evidence, dying declarations are admissible under an

exception to the hearsay rule. TEX. R. EVID. 804(b)(2). A dying declaration is a “statement

made by a declarant while believing that the declarant’s death was imminent, concerning the

cause or circumstances of what the declarant believed to be impending death.”           Id.   The

admission of dying declarations also does not infringe upon a criminal defendant’s right of

confrontation. Giles v. California, 554 U.S. 353, 358-59 (2008); Gardner v. State, 306 S.W.3d

274, 289 (Tex. Crim. App. 2009).

        “[W]e defer to a trial court’s determination of historical facts and credibility, [but] we

review a constitutional legal ruling … de novo.” Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim.

App. 2006). A “trial judge has great discretion in deciding whether a statement qualifies as a

dying declaration.” Gardner, 306 S.W.3d at 291.



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       The proponent of a dying declaration is required to establish that the statement was made:

(1) when the declarant was conscious of approaching death; (2) voluntarily; (3) without

persuasion or influence from leading questions; and (4) when the declarant was of sound mind.

Gardner, 306 S.W.3d at 289-90.         This predicate may be established by either direct or

circumstantial evidence, and it is not essential that the declarant actually say that she was

conscious of impending death. Id. at 290. “Each case depends on its particular circumstances,

but sometimes the declarant’s conduct and the nature of his wounds [will] suffice.” Id. “All that

the rule requires is sufficient evidence, direct or circumstantial, that demonstrates that the

declarant must have realized that he was at death’s door at the time that he spoke.” Id.

       Denson contends that the dying declaration exception does not apply because: (1)

Sharon’s statements were not made with the belief that death was imminent; (2) Sharon’s

statements did not concern the cause and circumstances of her impending death but were made to

express concern for her children; and (3) Sharon was not of sound mind when she made the

statements. As previously noted, evidence that Sharon realized that she was at death’s door may

be direct or circumstantial. In this case, Sharon knew she had been shot multiple times and that

she was badly burned. Moreover, the testimony regarding the severity of Sharon’s injuries is

further circumstantial evidence that Sharon believed her death was imminent. Although Sharon

also expressed concern for her children, her statements clearly were directed at revealing the

cause and circumstances of her impending death.         Finally, although Sharon was mistaken

regarding the ages of her children, she was clear with regard to the circumstances causing her

injuries, and she accurately provided both her home address and Dees’s address. Thus, the

mistake regarding her children’s ages did not preclude the trial court from finding that she was of

sound mind. Because the evidence established that Sharon’s statements to Banner, Cheesebrew,



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and Officer Tillery regarding the cause and circumstances of her impending death were made

while she believed her death was imminent, the trial court did not err in admitting the statements

under the dying declarations exception, and the admission of the testimony as dying declarations

did not infringe upon Denson’s right of confrontation. Giles, 554 U.S. at 358-59; Gardner, 306

S.W.3d at 289.

                                      CRIME SCENE VIDEO

       Denson also asserts the trial court erred in admitting into evidence the crime scene video

of Dees’s house where Sharon and Dees were shot and which was set on fire. Denson contends

the prejudicial effect of the video substantially outweighed its probative value.

       During trial, two separate objections were made to the admission of the video. The first

objection was made at the time the video was introduced into evidence. The second objection

was made immediately prior to the portion of the video showing Dees’s body.              Denson’s

appellate complaint is based on this second objection.

       Denson contends that the video is duplicative of the autopsy photographs depicting

Dees’s body. Denson further contends that “most of the segments show full frontal nudity, with

his penis and pubic area clearly visible.” Denson notes that Dees “was not shot in that area of his

body.” Similarly, Denson asserts that the video’s depiction of the burns to Dees’s body was

prejudicial because the burns did not cause his death. Finally, Denson asserts that the remaining

segments of the video, showing personnel from the medical examiner’s office photographing and

manipulating Dees’s body, are duplicative of the testimony and autopsy photographs.

       Under Rule 403 of the Texas Rules of Evidence, relevant evidence may be excluded “if

its probative value is substantially outweighed by the danger of unfair prejudice.” TEX. R. EVID.

403. “A judge’s ruling on a Rule 403 objection will be reversed only for a clear abuse of



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discretion.” Matamoros v. State, 901 S.W.2d 470, 476 (Tex. Crim. App. 1995). “So long as the

trial court’s ruling is within the zone of reasonable disagreement, it will be upheld.” Id.

       Although Denson focuses his argument only on the segments of the video after his

second objection that showed Dees’s body, the portion of the video that remained to be played at

the time of Denson’s second objection depicted significant evidence other than Dees’s body,

including evidence of forced entry into the house, the trail of blood left by Sharon as she sought

help from neighboring houses before she collapsed on the sidewalk, and evidence of other shell

casings and bullet holes. Even in his brief, Denson isolates partial segments from the remaining

portion of the video in an effort to support his argument.

       With regard to Denson’s contention that the video was duplicative of the autopsy

photographs, the Texas Court of Criminal Appeals has held that “a still photograph is not

cumulative of a videotape.” Id. “A videotape allows a jury an overall perspective that is simply

not available from photographs.” Id. “While still photographs offer an isolated and fixed

content, a video recording allows a more panoramic representation of the physical and forensic

evidence.” Id.

       With regard to the video showing the burns to Dees’s body and his nudity, a videotape

that simply reflects the gruesomeness or reality of the crime is not sufficient reason for its

exclusion. Ripkowski v. State, 61 S.W.3d 378, 392 (Tex. Crim. App. 2001). Evidence of the

burns and the area where the fire started was clearly probative of the cause of the burns to

Sharon’s body and linked to the singed hair on Denson’s arms, the burns on his legs, and the

gasoline found on the caps and gloves retrieved from his car.

       Even if we were to assume the trial court erred in admitting the crime scene video into

evidence, “[w]e do not reverse a ruling based on nonconstitutional error that does not affect



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‘substantial rights.’” Neal v. State, 256 S.W.3d 264, 284-85 (Tex. Crim. App. 2008). “If, after

examining the record as a whole, we determine that any error had a slight or no effect on the

jury, then we will not overturn the trial court’s ruling.” Id. “[T]he presence of overwhelming

evidence of guilt plays a determinative role in this analysis.” Id. (internal citations omitted).

       Denson repeatedly complains on appeal about the “full frontal nudity” shown in the

video. The jury, however, was charged with determining whether Denson murdered Dees.

Given Sharon’s testimony identifying Denson as the person who shot Dees and the evidence

linking Denson to the fire at Dees’s home, we conclude error, if any, in admitting the crime

scene video had a slight or no effect on the jury’s verdict. Accordingly, we overrule Denson’s

complaint on appeal.

                                           CONCLUSION

       The trial court’s judgment is affirmed.

                                                       Karen Angelini, Justice

DO NOT PUBLISH




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