Opinion
05-22-00744-CR
01-30-2024
LEE CARTER, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F20-75649.
Before Partida-Kipness, Reichek, and Garcia, Justices.
MEMORANDUM OPINION
DENNISE GARCIA, JUSTICE.
A jury convicted appellant of murder and the trial court assessed punishment, enhanced, at fifty years in prison. In seventeen issues, appellant argues the evidence is insufficient to support his conviction, the trial court erred in overruling his confrontation clause objection to the 911 call, and the trial court made erroneous evidentiary rulings. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
I. Background
On the day in question, Richard Horn was shot and killed outside Kilo's, a liquor store in Dallas. The store's surveillance system captured footage of the shooting and depicted the shooter wearing a gray hat and a white Bluetooth earpiece.
The Dallas police circulated an internal bulletin showing a picture of appellant's face and van obtained from the surveillance video and learned that the van driven by the shooter was registered to appellant. One of appellant's fingerprints was matched to one of the prints found on Horn's car.
The police subsequently obtained a warrant for appellant's arrest and a warrant to search his home. A white Bluetooth earpiece was retrieved from appellant's person when he was arrested, and a gray hat was found when officers searched appellant's home.
Appellant was charged with murder and the case was tried to a jury. The jury found appellant guilty as charged. After hearing punishment evidence, including the State's evidence of appellant's prior convictions, the court found the State's two enhancement paragraphs true and assessed punishment at fifty years in prison. This timely appeal followed.
II. Analysis
A. Sufficiency of the Evidence
Appellant's first issue argues the evidence is insufficient to support his conviction. Specifically, he argues the evidence does not establish he was the person who committed the offense.
We review a challenge to the sufficiency of the evidence under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Under the Jackson standard, we review all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the charged offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Zuniga v. State, 551 S.W.3d 729, 732 (Tex. Crim. App. 2018).
Viewing the evidence in the light most favorable to the verdict requires that we consider all evidence admitted at trial, including improperly admitted evidence. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder's credibility and weight determinations because the factfinder is the sole judge of the witnesses' credibility and the weight that their testimony is to be afforded. Winfrey, 393 S.W.3d at 768; Brooks, 323 S.W.3d at 899. The Jackson standard is deferential to the factfinder's resolution of conflicts in the testimony, the weight afforded the evidence, and reasonable inferences drawn from the facts. Jackson, 443 U.S. at 319; Zuniga, 551 S.W.3d at 732. We may not reevaluate the weight and credibility of the evidence to substitute our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead, we determine whether the necessary inferences are based on the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Clement v. State, 248 S.W.3d 791, 796 (Tex. App.-Fort Worth 2008, no pet.). Accordingly, if the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that determination. Jackson, 443 U.S. at 326; Merritt v. State, 368 S.W.3d 516, 525-26 (Tex. Crim. App. 2012).
"Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt." Id. at 525. Each fact need not point directly and independently to guilt if the cumulative force of all incriminating circumstances is sufficient to support the conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
Appellate courts are not permitted to use a "divide and conquer" strategy for evaluating the sufficiency of the evidence. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). Instead, appellate courts must consider the cumulative force of all the evidence. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017).
To obtain a conviction for murder in this case, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused Horn's death, or that he intended to cause serious bodily injury and committed an act clearly dangerous to human life that resulted in Horn's death. See Tex. Penal Code Ann. § 19.02(b)(1)-(2).
"A person acts intentionally, or with intent, with respect . . . to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result." Id. § 6.03(a). A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b). Direct evidence of the requisite intent or knowledge is not required. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002). And "a jury may infer the intent to kill from the use of a deadly weapon . . . ." Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).
The State must prove the identity of the person who committed the offense. Like other elements of the offense, identity may be proven by direct or circumstantial evidence. See Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009); Greene v. State, 124 S.W.3d 789, 792 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd).
The State's evidence here included the Kilo's surveillance footage showing Horn exit a gold sedan and enter the store. Shortly thereafter, a man later identified as appellant parked his van and entered the store. The man was wearing a distinctive bucket-style hat and a white Bluetooth earpiece. The surveillance video was played for the jury.
The two men exited the store and engaged in a conversation while standing between their vehicles. Suddenly, appellant took a step back, pulled out a gun, and began shooting Horn repeatedly. Horn tried to get in his car and close the door and appellant got into his van and left the scene.
Charnea Kearney, a crime scene analyst, processed the crime scene. When she reviewed the surveillance footage, she noted that the suspect touched the front driver door window of Horn's vehicle. She photographed the scene, collected evidence, processed the interior and exterior of the vehicle for fingerprints, and swabbed the window for DNA. A fingerprint expert later matched one of the fingerprints found on Horn's vehicle to a known print of appellant's. Still photographs taken from the video were admitted into evidence. One photograph shows a side profile of appellant holding the gun and touching Horn's car.
The only comparable DNA sample was subsequently found to match Horn's DNA.
Homicide Detective Jeffrey Loeb also responded to the scene. The surveillance video clearly showed the suspect holding a gun in his right hand while shooting Horn multiple times. Loeb released an internal bulletin with a picture of the suspect's van and the shooter's face.
A few days after the offense, another officer observed the van depicted in the bulletin. He followed the vehicle, called in the license plate, and learned that the van was registered to appellant.
When appellant's house was searched, officers discovered a gray hat that resembled the hat worn by the shooter in the video. A white Bluetooth earpiece was found on appellant's person when he was arrested. When appellant was interviewed, he admitted knowing Horn but denied that he ever touched his car.
The medical examiner testified that Horn suffered six gunshot wounds that caused his death. The death was characterized as a homicide.
Appellant's significant other, Aretta Woodard, testified for the defense. She acknowledged that appellant sometimes wore a Bluetooth earpiece and had a van registered to his name. But she said that she, her son, and appellant's brother also drove the van. According to Woodard, appellant was not the man who appeared in the surveillance video, and appellant was with his family on the day of the murder.
The foregoing reflects that the State established all of the elements of murder, including appellant's identity as the shooter. The surveillance video shows appellant arrive at Kilo's, interact with Horn, and shoot him several times. The video shows appellant touch Horn's car, and appellant's fingerprint was identified on the vehicle. The van driven by the shooter was registered to appellant, and photographs of the van and appellant's face provided additional evidence of identity. The jury also viewed a still photograph of appellant taken from the video. Moreover, the hat and Bluetooth earpiece retrieved from appellant's home and person resembled those worn by the shooter. While each fact may not point directly and independently to guilt, the cumulative force of all these incriminating circumstances is sufficient to support the conviction. See Hooper, 214 S.W.3d at 13.
Woodard's testimony does not alter the analysis. Although Woodard testified that appellant was not the shooter, the jury was the sole judge of the weight and credibility of the evidence and witnesses' testimony. See Tex. Code Crim. Proc. Ann. art. 38.04; Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008). We do not second guess those determinations here. See id.
We conclude that based on the evidence and the reasonable inferences to be drawn from that evidence, the jury could rationally conclude beyond a reasonable doubt that appellant was the shooter who murdered Horn. See Gardner, 306 S.W.3d at 285-86. Appellant's first issue is overruled.
B. Confrontation Clause Objection
After the shooting, a Kilo's employee called 911. The State called 911 operator Ana Godinez to testify and offered the recorded call into evidence. Defense counsel objected that the call was inadmissible because the caller was not present to testify in violation of the confrontation clause. The court conducted a hearing outside the jury's presence and overruled the objection. Appellant's second issue argues the ruling was erroneous.
The Sixth Amendment's Confrontation Clause, applicable to the states through the Fourteenth Amendment, provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." Crawford v. Washington, 541 U.S. 36, 42 (2004); Langham v. State, 305 S.W.3d 568, 575 (Tex. Crim. App. 2010) (citing U.S. Const. amend. VI). "[T]he most important instances in which the [Confrontation] Clause restricts the introduction of out-of-court statements are those in which state actors are involved in a formal, out-of-court interrogation of a witness to obtain evidence for trial." Michigan v. Bryant, 562 U.S. 344, 358 (2011). Once a defendant raises a Confrontation Clause objection, the burden shifts to the State to prove either (1) that the proposed statement does not contain testimonial hearsay and thus does not implicate the Confrontation Clause or (2) that the statement does contain testimonial hearsay but is nevertheless admissible. See De La Paz v. State, 273 S.W.3d 671, 680-81 (Tex. Crim. App. 2008) (citing Crawford, 541 U.S. at 68).
To determine whether the admission of the recording of the 911 calls violated the Confrontation Clause, we must first determine whether the statements on the recordings are testimonial. Whether an out-of-court statement is testimonial or nontestimonial is a question of law that is reviewed de novo, while giving deference to the trial court's fact and credibility determinations. Wall v. State, 184 S.W.3d 730, 742-43 (Tex. Crim. App. 2006). The Confrontation Clause does not require the exclusion of non-testimonial statements. Sanchez v. State, 354 S.W.3d 476, 485 (Tex. Crim. App. 2011).
There is no explicit definition of "testimonial." See Wall, 184 S.W.3d at 734. In Davis v. Washington, the United States Supreme Court explained the distinction between testimonial and nontestimonial statements:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency[ ] and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.547 U.S. 813, 822 (2006); see also Vinson v. State, 252 S.W.3d 336, 338 (Tex. Crim. App. 2008). The Davis case centered on whether statements made by a victim of domestic violence to a 911 operator were testimonial in nature. See Davis, 547 U.S. at 826-27. In determining that the caller's statements were nontestimonial and thus admissible, the Davis court considered the following factors: (1) the caller was describing events as they were actually happening rather than past events; (2) any reasonable listener would recognize that the caller was facing an ongoing emergency; (3) when viewed objectively, the nature of what was asked and answered was such that the elicited statements were necessary to resolve the present emergency, rather than simply to learn what had happened in the past; and (4) the caller was frantically answering the 911 emergency operator's questions over the phone in an environment that was not tranquil or even safe. See id. at 826-27. The court concluded that the caller was "seeking aid, not telling a story about the past." See id. at 831.
Appellant does not identify any particular aspect of the call he deems testimonial. Instead, he argues that the call was testimonial because the caller's statements "eventually resulted in an investigation of facts relevant to later criminal investigation." This argument ignores the nature and purpose of the statements at the time they were made.
There is no dispute that the caller's statements were made during an ongoing emergency. Indeed, a sense of urgency and excitement is evident in the caller's voice. See Gaeta v. State, No. 05-14-01202-CR, 2016 WL 3870665, at *5 (Tex. App.-Dallas July 12, 2016, no pet.) (mem. op., not designated for publication) (statements made during 911 call related to an ongoing emergency and were non-testimonial); Neal v. State, 186 S.W.3d 690, 693-94 (Tex. App.-Dallas 2006, no pet.) (statements made during 911 call were non-testimonial and did not implicate confrontation rights because the complainant "made the 911 call during a crime in progress and made the statements to the 911 operator in urgency and with the desire for a prompt response by the police"); Kearney v. State, 181 S.W.3d 438, 441-43 (Tex. App.-Waco 2005, pet. ref'd) (statements made in 911 call that was initiated to report a robbery in progress and summon emergency police help was non-testimonial).
The caller initiated the call while the situation was still in progress. After the 911 operator asked the caller where the emergency was, the caller responded with the location and said that the shooting had just happened. The caller spontaneously described the situation in response to prompts from the operator. The primary purpose of the questions was to determine the nature of the emergency and to determine a course of action to alleviate the emergency, which in this case was to dispatch law enforcement officers to the scene to assess the situation. The caller said a man had been shot by a black man driving a van. But the events were not recounted in a step-by-step fashion; instead, the caller provided informal, unrehearsed, piecemeal descriptions of the situation. The operator asked about the victim and whether the caller was with him. The caller responded "no," he was inside the store and the victim looked like he was dead. Although the operator asked the caller if he got a license number for the van, the caller said he did not, but said, "we have a camera here." After confirming the caller's name and callback number, the operator told the caller the police were on the way.
We conclude the recording of the 911 call was not testimonial and did not implicate appellant's right of confrontation. See Gaeta, 2016 WL 3870665, at *5. Appellant's second issue is resolved against him.
C. Evidentiary Rulings
Appellant's remaining fifteen issues complain about the trial court's admission of evidence. We review a trial court's ruling on the admission of evidence under an abuse of discretion standard of review. Gonzalez v. State, 616 S.W.3d 585, 594 (Tex. Crim. App. 2020). A trial court abuses its discretion when it acts without reference to any guiding rules and principles or acts arbitrarily or unreasonably. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). "As long as the trial court's ruling is within the 'zone of reasonable disagreement,' there is no abuse of discretion, and the trial court's ruling will be upheld." De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009) (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op on reh'g)).
1. Body Camera Footage of the Responding Officer
Appellant first complains about the admission of footage from the responding officer's body camera. Officer Fillmore, the first responding officer, testified that he was wearing a body camera when he arrived at the scene. Officer Fillmore testified that viewing the body camera footage would assist the jury in understanding what happened on the day of the offense. Appellant objected "It's another video showing gory -- I mean, gory stuff, and accordingly, I object to its relevance. I object that to [sic] the prejudicial effect outweighs the probative value." After the trial court overruled the objection and admitted the exhibit, the State published the video.
Video recordings in general may be more helpful to a jury than still photographs. Gordon v. State, 784 S.W.2d 410, 412 (Tex. Crim. App. 1990). While still photographs offer the jury an isolated and fixed content, a video recording allows a more panoramic representation of the physical and forensic evidence. Id. A trial court must decide after viewing the recording whether the probative value of the recording is substantial or slight, and in the latter case whether the proffer is made solely to unfairly prejudice or mislead the jury or confuse the issues in the case. See id.; Tex. R. Evid. 403. Even if a video is gruesome, its probative value is not substantially outweighed by the danger of unfair prejudice under rule 403 if it is "no more gruesome than the crime scene itself as it was found by the police." Shuffield v. State, 189 S.W.3d. 782, 787 (Tex. Crim. App. 2006). Videos of a complainant's injuries are admissible under rule 403 if they "show only the injuries that the victim received and are no more gruesome than would be expected." Id. at 787-88.
Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007); Duntsch v. State, 568 S.W.3d 193, 216 (Tex. App.-Dallas 2018, pet. ref'd). Indeed, rule 403 does not require exclusion of evidence simply because it creates prejudice; the prejudice must be "unfair." State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). The rule envisions exclusion of evidence only when there is a "clear disparity between the degree of prejudice of the offered evidence and its probative value." Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009).
When conducting a rule 403 analysis, courts must balance: (1) the inherent probative force of the proffered item of evidence, along with (2) the proponent's need for that evidence, against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).
The record does not reflect that the trial court abused its discretion in admitting the video. The evidence was relevant and probative because it assisted the jury in understanding what transpired at the scene. The video shows a responding officer pressing on a wound with a large amount of blood while another officer performs CPR. While the video is gruesome, it does no more than depict the nature of the crime and the results of Horn being shot multiple times. Although appellant argues that the video was proffered only "to inflame the minds of the jury," appellant ignores that the depiction of the scene and Horn's injuries was not lacking in probative value. The trial court could reasonably have concluded that there was not such a clear disparity between this probative value and the danger of unfair prejudice. See Hammer, 296 S.W.3d at 568. Moreover, publication of the exhibit consumed only a short amount of time. Under these circumstances, admission of the video was not erroneous. Appellant's third issue is overruled.
2. Body Camera Footage of Search Incident to Arrest
Detective Matt Schmidt and his partner Detective Figueroa arrested appellant and performed a custodial search. Detective Figueroa was wearing a body camera and recorded the search.
Detective Schmidt testified that viewing the video that was recorded would be helpful to the jury. He identified the video, said he had viewed it, and it depicted himself, appellant, and the "entire encounter" of the search process. When the State offered the exhibit into evidence, defense counsel objected that there was an improper foundation because the exhibit "could only be introduced through Detective Figueroa." The objection was overruled, and the video was admitted into evidence.
Appellant's fourth issue argues this evidence was erroneously admitted. But his appellate argument seeks to have us "imply" and "assume" that the trial objection encompassed a more comprehensive complaint about the evidence, including concerns about the chain of custody and the reliability of the system used to record the video. We reject this expansive interpretation of the objection, as none of these concerns were expressed to the trial court. See Tex. R. App. P. 38.1. Defense counsel did not elaborate on the alleged deficiencies, nor did he seek to voir dire the witness or cross-examine on any of the alleged deficiencies. We therefore consider only whether the exhibit was admitted without a proper foundation.
On appeal, we review a trial court's ruling on authentication issues under an abuse of discretion standard. Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim. App. 2018). This deferential standard requires us to uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement. Id. A trial court is given considerable latitude with regard to its evidentiary rulings, and different trial judges may "reach different conclusions in different trials on substantially similar facts without abusing their discretion." Id.
To authenticate a piece of evidence, the proponent must provide evidence sufficient to show "the item is what the proponent claims it is." Tex. R. Evid. 901(a). Evidence may be authenticated in a number of ways, including by direct testimony from a witness with personal knowledge, by comparison with other authenticated evidence, or by circumstantial evidence. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). "[T]he most common way to authenticate a video is through the testimony of a witness with personal knowledge who observed the scene." Jackson v. State, 617 S.W.3d 916, 931 ((Tex. App.-Houston [14th Dist.] 2021, no pet.) (quoting Fowler, 544 S.W.3d at 849).
The trial court should admit proffered evidence "upon, or subject to the introduction of evidence sufficient to support a finding of" authenticity." Tienda, 358 S.W.3d at 638. The ultimate question whether an item of evidence is what its proponent claims then becomes a question for the fact-finder-the jury, in a jury trial. Id. The trial court itself need not be persuaded that the proffered evidence is authentic. Id. Rather, "the preliminary question for the trial court to decide is simply whether the proponent of the evidence has supplied facts that are sufficient to support a reasonable jury determination that the evidence he has proffered is authentic." Id. Here, Detective Schmidt testified that he had personal knowledge of the video and the event depicted in the video. He also supplied facts sufficient to support a reasonable jury determination that the video was authentic. See Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015) (discussing authentication). Therefore, the trial court did not abuse its discretion by admitting the evidence. Appellant's fourth issue is resolved against him.
3. Photographs Taken During Execution of Search Warrant
Appellant's fifth and sixth issues argue the trial court erred in admitting evidence over his relevance objections. These arguments lack merit.
Detective Valdez testified about the execution of the search warrant at appellant's home and explained that appellant was not present when the officers executed the warrant. The Detective described the items found during the search, including bullets that did not match the casings found at the crime scene. The officers also found two hats, one of which Detective Valdez believed matched the hat worn by the shooter in the surveillance video. Photographs of the items found were offered into evidence as Exhibits 22, 23, 24, 25, and 27. After confirming that appellant was not present when the search was conducted, appellant's counsel objected that the exhibits were not relevant. The objection was overruled.
The State also offered Exhibit 20, the hat, and Exhibit 21, the earpiece, into evidence. Again, appellant objected on relevance grounds, and again, the objection was overruled.
Appellant now asserts that the trial court's rulings were erroneous because these exhibits were not "properly authenticated as being associated with appellant." Appellant offers no explanation as to how this argument comports with his trial objections or how authentication was allegedly lacking. See Tex. R. App. P. 33.1(a); see also Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (point of error must comport with trial objection). There was no dispute that the items depicted in the photographs were retrieved from appellant's home during a properly executed search warrant. And the trial court correctly concluded that the evidence was relevant.
Generally, "all relevant evidence is admissible." Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009). Evidence is relevant if it has any tendency to make a fact of consequence "more or less probable than it would be without the evidence." Tex. R. Evid. 401; Inthalangsy v. State, 634 S.W.3d 749, 754 (Tex. Crim. App. 2021). "Evidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence." Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004).
In this instance, the pictures of items retrieved from appellant's home, and the hat and the earpiece were probative of the results of the search and whether appellant was the shooter depicted in the surveillance video. The evidence was relevant and there was no error in its admission. Appellant's fifth and sixth issues are resolved against him.
4. Autopsy Photograph
Dr. Stephen Lenfest, the medical examiner, testified about the autopsy he performed and the report he prepared. Although Dr. Lenfest testified that he took several photographs, the State offered a total of seven photographs depicting the six gunshot wounds Horn suffered. Appellant's seventh issue complains that one of the autopsy photographs, Exhibit 18, should not have been admitted because it was cumulative, and its prejudicial effect outweighed its probative value. We disagree.
To be admissible, a trial court must first determine that the evidence is relevant. Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App. 2016). Relevant evidence is any evidence that has a tendency to make a fact more or less probable than it would be without the evidence that is also of consequence in the action. Tex. R. Evid. 401. Rule 403 provides that relevant evidence may nonetheless be excluded "if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Tex. R. Evid. 403. Using these factors, "Rule 403 requires exclusion of evidence only when there exists a clear disparity between the degree of prejudice of the offered evidence and its probative value." Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001).
When evaluating the admissibility of a photograph that is allegedly unfairly prejudicial, courts consider the number of photographs offered; the gruesomeness, detail, and size of the photograph; whether the image is in color or black and white; whether the body is naked or clothed; and whether the body has been altered since the crime. Reese v. State, 33 S.W.3d 238, 241 (Tex. Crim. App. 2000). "Autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself." Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim App. 1998); Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001). When an element of a photograph is "genuinely helpful to the jury . . . the photograph is inadmissible only if the emotional and prejudicial aspects substantially outweigh the helpful aspects." Erazo v. State, 144 S.W.3d 487, 491-92 (Tex. Crim. App. 2004).
Dr. Lenfest explained that after a body is cleaned, "overall photos" are taken. Exhibit 18 is such a photo. Specifically, it is a color photograph that shows the wounds to Horn's lip, chest, abdomen, and thigh.
Appellant argues that the exhibit, in which Horn is naked, was "highly prejudicial" because it duplicated other photographs. We disagree that the photograph was duplicative. While there were other photographs focusing on the individual gunshot wounds to Horn's arm, mouth, abdomen, and thigh, Exhibit 18 was the only "overall" picture of Horn and the wounds collectively. See Bacey v. State, 990 S.W.2d 319, 326 (Tex. App.-Texarkana 1999, pet. ref'd) (photograph of murder victim showing entire body not cumulative of other photographs showing specific parts of body). The trial court could reasonably have concluded that the photograph would be helpful to the jury in understanding Dr. Lenfest's testimony about the injuries and the autopsy process.
Although Horn is nude, it is unclear whether his penis was visible in the photo shown to the jury. Our record shows the body unclothed. But Dr. Lenfest testified that some of the exhibits had "yellow stickies covering up portions of the photographs to give a little bit of decency to [Horn] and the Court."
We also disagree that the photograph's probative value was outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. Although the photograph, like other autopsy photographs that were admitted, was in color, the picture did not depict any mutilation caused by the autopsy process, see Salazar, 38 S.W.3d at 151, and shows nothing more than the injuries suffered by Horn. See Gallo v. State, 239 S.W.3d 757, 763 (Tex. Crim. App. 2007).
Nothing suggests any tendency of the photograph to confuse or distract the jury, nor does it have any tendency to be given undue weight by the jury. See Gigliobianco, 210 S.W.3d at 641. Likewise, discussion of Exhibit 18 was straightforward and unemotional and did not consume an inordinate amount of time. See id. at 642. Considering the Rule 403 factors, we conclude the trial court did not abuse its discretion by admitting the challenged photograph. Appellant's seventh issue is resolved against him.
5. Exhibits Pertaining to Prior Convictions
In issues eight through seventeen, appellant argues the trial court erred in overruling his objections to evidence of his prior convictions. These issues were not preserved for our review, and even if they had been preserved, lack merit.
During the punishment phase, the State offered pen packets and certified court records concerning two prior convictions for burglary of a habitation, aggravated robbery, attempted burglary of a building, two convictions for unlawful possession of a firearm by a felon, and unlawful possession of a controlled substance. The State also offered records pertaining to this case, including a fingerprint card and mugshot pictures. Further, the State presented testimony from a fingerprint expert who had compared appellant's prints taken on the day of trial with those associated with his prior convictions and concluded that the fingerprints matched. When the exhibits were offered, appellant objected that there was "no foundation." The objections were overruled.
These objections were insufficient to apprise the trial court of any alleged deficiencies in the evidence and preserve the issues for our review. See Tex. R. App. P. 33.1(a)(1)(A) (specific objection required unless objections obvious from context); Bird v. State, 692 S.W.2d 65, 70 (Tex. Crim. App. 1985) (objection that "proper predicate has not been laid" is "too general to preserve error."). Further, even if we deemed the trial objection sufficient, appellant fails to specify any alleged deficiencies in the evidence on appeal. See Tex. R. App. P. 38.1.
Even if the issues had been preserved, there was no abuse of discretion in admitting the evidence. The pen packets were properly authenticated. See Reed v. State, 811 S.W.2d 582, 586 (Tex. Crim. App. 1991). And the State established through independent evidence that appellant was the person previously convicted. See Cain v. State, 468 S.W.2d 856, 858 (Tex. Crim. App. 1971). Issues eight through seventeen are overruled.
III. Conclusion
Having resolved all of appellant's issues against him, we affirm the trial court's judgment.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.