Tristan Keir Edwards v. the State of Texas

Affirmed and Majority and Concurring Opinions filed May 21, 2024

In The

Fourteenth Court of Appeals

NO. 14-22-00699-CR

TRISTAN KEIR EDWARDS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 239th District Court
Brazoria County, Texas
Trial Court Cause No. 85794-CR

MAJORITY OPINION

Appellant Tristan Keir Edwards appeals his conviction for capital murder.
See Tex. Penal Code Ann. § 19.023(a)(8). We affirm.

BACKGROUND

Appellant and Shekinah Huffin began a relationship in the spring of 2017
and moved in together two weeks later. Shekinah had a 10-year old daughter
living with them. Appellant and Shekinah had a son, the complainant, on August
25, 2018. Shekinah was not working outside of the home at the time. Appellant
eventually lost his job and the four of them were going to be evicted from their
two-bedroom apartment as a result. With the eviction approaching, Shekinah made
arrangements to move in with her parents along with her two children. Appellant,
on the other hand, would live with his mother. Shekinah described their situation
as stressful.

On September 18, 2018, appellant and Shekinah were smoking marijuana
throughout the day. That evening appellant and the complainant went to the
bedroom to take a nap. They awoke from the nap about ten in the evening and
Shekinah and appellant smoked more marijuana. Shekinah then asked appellant to
hand her the complainant so she could feed him. According to Shekinah appellant
began making strange statements, things that did not make sense. Shekinah
testified that the strange statements included they could run away, drive to
California to kill Jessica, appellant’s former girlfriend and the mother of his older
son. Appellant also told Shekinah to call her father so he could kill appellant.

At this point, with appellant acting strangely, Shekinah asked appellant for
his cellular phone so she could call appellant’s mother to intervene to calm
appellant down. Shekinah tried to call appellant’s mother and appellant took his
phone back before she could make the call. Shekinah asked appellant to give the
phone back to her. As appellant handed the phone to Shekinah, he grabbed the
complainant from her and ran into the bathroom. Shekinah tried to call 9-1-1, but
when she heard the water running in the bathroom, she entered the bathroom where
she saw appellant holding the complainant’s head under the running faucet.
Shekinah moved into the tub pleading with appellant to give the complainant to
her, but she was unsuccessful. Shekinah then began fighting with appellant in an
effort to take the complainant from him. Appellant pushed Shekinah out of the tub

2
and he then smashed the complainant’s head into the tub. According to Shekinah,
appellant continued making strange statements while he smashed the
complainant’s head into the bottom of the tub. Shekinah screamed and ran out of
the apartment in an effort to get away from appellant. Shekinah saw a stranger in
the outside hallway. Shekinah told him that her baby had been killed and asked to
use his phone to call 9-1-1. Shekinah got his phone and called 9-1-1.

Shekinah saw appellant come out of their apartment. Shekinah then went to
another apartment where she slid down against the apartment’s door. Raven
Crawford heard frantic and consistent knocking on her apartment’s entry door.
Crawford opened the door and found Shekinah on the floor screaming. 1 Shekinah
told Crawford and her roommate that her boyfriend was trying to kill her baby.
They pulled a still screaming Shekinah into their apartment and the roommate
closed the door with Crawford, a prison guard, remaining in the hallway.
Crawford saw a calm appellant, whom she did not know, approaching her down
the hallway. As appellant got closer, Crawford heard him saying random things
such as “we got to get this money.” Crawford told appellant to move away but he
instead opened the apartment door. Crawford then grabbed appellant by his shirt
and struck him, knocking him to the hallway floor. Appellant said “all right,” and
“I’m just playing.” At this point, Shekinah said that she had another child in the
apartment so Crawford let appellant go in an effort to get to the apartment and get
the other child. Appellant instead ran past her into the apartment and locked the
door.

Shekinah also testified about an incident several months before when she
and appellant visited a waterpark. According to Shekinah, they smoked marijuana

1
Crawford testified during appellant’s trial that she did not know Shekinah’s name at the
time, but learned it later.

3
at the waterpark and appellant consumed an unknown pill. When they returned to
their apartment, appellant grabbed Shekinah, shook her, and accused her of
maintaining multiple social media accounts. Appellant then ran out of their
apartment and Shekinah called 9-1-1. The responding police found appellant in the
tub of another apartment. The police took appellant to a local hospital.

Numerous officers from the Pearland Police Department responded to
Shekinah’s September 9-1-1 call. The officers forced their way into the locked
apartment using a sledgehammer and found a deceased child face-down on the
kitchen floor next to a pool of blood, tissue, and brain matter. The officers located
Shekinah’s ten-year old daughter, removed her from the apartment, and reunited
her with her mother. After breaching two more locked doors, the police officers
found appellant hiding in the bathtub, laying in about two inches of water.
Appellant gave the police officers the “middle finger” with both hands as they
entered the bathroom. Appellant refused to get out of the bathtub so the officers
physically removed him from the bathtub, handcuffed him, and then carried him
out of the apartment, and eventually placed him in the back of a patrol car. While
all of this was happening, appellant told the officers that he “smashed his son’s
head into the pavement,” asked them to shoot him, and stated that “he was either
going to get life in prison or the death penalty.” Appellant was transported to the
police station jail where his clothing was removed, he was placed in a restraint
chair, and a spit mask placed over his head.

Shortly after 3:00 a.m. on September 19, 2018, Pearland Police Lieutenant
Cecil Arnold interviewed appellant at the police station. Arnold was trained and
certified as a mental health peace officer by the State of Texas. The interview took
place after appellant was removed from the restraint chair. Arnold gave appellant
a jail coverall, blanket, food, and water, before beginning the interview. In the

4
short time that had passed since the complainant was killed, appellant had calmed
down and remained calm throughout the interview. During the interview,
appellant admitted that he and Shekinah had smoked marijuana throughout the day
and the marijuana was really strong. Early during the interview appellant shifted
the blame away from himself, claiming that he dropped the complainant on the
floor, and did not intend to hurt his infant son. Appellant also said that the incident
occurred during an argument with Shekinah over his cellular phone. According to
appellant, Shekinah would not give his phone back and she tried to beat him.
Appellant told Arnold the fight occurred in the master bedroom and bathroom, and
that Shekinah tried to “slam his head.” Appellant claimed that he never got control
over the complainant. Appellant stated that Shekinah dropped the complainant in
the kitchen as she ran out of the apartment. When Arnold told appellant it
appeared the complainant had been harmed in the bathroom, appellant responded
that Shekinah had put the complainant under the water in the bathtub and had then
dropped him on the bathtub and the floor during the fight. A few minutes later,
appellant told Arnold that he and Shekinah both hurt the complainant. Later
during the interview, appellant told Arnold that Shekinah threw the complainant
down and was the one holding the complainant under the water.

Appellant contradicted himself throughout his interview with Arnold by
changing his description of what happened from the beginning of the interview to
the end of the interview. Despite his changing story, the video of the interview
demonstrates that appellant understood Arnold’s questions and responded in an
appropriate manner to Arnold’s questions. Appellant denied having any
psychiatric or mental health diagnoses nor being prescribed any medications for
mental illness. Additionally, nothing occurred during the interview that led Arnold
to believe that appellant was impaired or having a mental health crisis. Arnold

5
ended the interview when appellant invoked his right to counsel.

Later that same morning, at approximately 10:30 a.m., appellant told a jailer
he wanted to speak with an investigator. At that time, appellant was detained in a
regular cell normally used by inmates awaiting transfer to the Brazoria County Jail,
not a padded cell for inmates in crisis. Sergeant James McGuire and Detective
John DeSpain, both with the Pearland Police Department, responded to appellant’s
interview request. Appellant told the investigators that Shekinah stabbed him in
the neck with a hair pick during the fight while she held the complainant.
Appellant claimed the incident began when Shekinah, holding the complainant,
would not hand over his cellular phone. Appellant claimed the argument over the
cellular phone became physical. When the investigators asked appellant how the
complainant was hurt, he responded that Shekinah dropped the complainant while
trying to get away from him. Once again, appellant was calm throughout the
interview and he did not tell the investigators that, at the time of the incident, he
was (1) under any mental distress; (2) experiencing any kind of delusions; or (3)
hearing voices.

An autopsy was conducted on the complainant. The autopsy established that
the complainant sustained blunt head and neck trauma that left him with a
deformed skull, much of which was in pieces. A portion of the complainant’s
brain had been knocked out of his skull, was spread out on the kitchen floor, and
was recovered by investigators at the scene. The medical examiner also observed
blunt torso trauma, two rib fractures, and a large laceration of the complainant’s
liver. The complainant’s vertebral column was also broken in two places.
According to the medical examiner who conducted the autopsy, none of the
complainant’s injuries were consistent with him being dropped accidentally, even
on a hard surface. The complainant’s injuries all required significant force to

6
inflict—such as slamming the child head-first into a hard object.

Because appellant’s case involved a child fatality and another minor lived in
the same household, Ronzina Adauto, a child fatality investigator with the
Department of Family and Protective Services (“DFPS”), was assigned to
investigate the circumstances of the complainant’s death. As part of her
investigation Adauto interviewed appellant after he had been transferred to the
Brazoria County Jail. Adauto was not allowed to use any recording devices during
the interview. Adauto began the interview by asking appellant about his
background and family history. According to Adauto, appellant responded
appropriately to these questions and did not act in a way that gave her any concerns
about his responses. During the interview, appellant denied that he had ever had a
psychiatric diagnosis, or that he was taking any medications for mental illness.
Appellant admitted that he smoked marijuana “two to three times a week five times
- - - five to six times a day.” Appellant also admitted that he had previously used
LSD.

Appellant told Adauto the incident that resulted in the complainant’s death
began with an argument over a cellular phone. The argument escalated to a
physical altercation that began in the bedroom and moved into the bathroom where
appellant tried to drown the complainant under running water. Appellant also told
Adauto that he threw the complainant onto the floor when he followed Shekinah
out of the bathroom and then out of the apartment. Appellant admitted that he
slammed the complainant on the floor two times until brain matter came out of the
child’s head. Appellant told Adauto that he knew the complainant was dead when
he stopped crying. When Adauto asked appellant why he did this, appellant
responded that he felt like he was losing his family and that his other children had
also left with their mothers. Appellant admitted that he lied when he told DeSpain

7
and McGuire that Shekinah stabbed him in the neck with a hair pick. Appellant
told Adauto that he had inflicted the injury on himself after the offense.

Eventually, appellant’s attorneys asserted the affirmative defense that
appellant was not guilty by reason of insanity. Appellant’s attorneys also filed two
pre-trial motions to suppress evidence. In the first motion, appellant sought to
exclude the statements obtained during appellant’s interviews with Pearland Police
investigators, as well as any DNA and cellular phone evidence obtained as a result
of those interviews. According to the first motion, appellant was incapable of
understanding the meaning and effect of waiving his Miranda warnings. Miranda
v. Arizona, 384 U.S. 436, 479 (1966). In the second motion, appellant sought to
exclude DFPS investigator Adauto’s testimony about her interview of appellant in
the Brazoria County Jail. Appellant argued that Adauto was working in tandem
with the Pearland Police Department and his statement should be excluded because
Adauto did not use the required procedural safeguards to secure the privilege
against self-incrimination. See id. Adauto testified during the motion to suppress
hearing and denied that she was working in tandem with law enforcement when
she interviewed appellant. She instead testified that the purpose of her
investigation was “establish the details of the event for the safety of the surviving
siblings.” The trial court denied both motions.

Appellant’s attorneys hired Michael Fuller, M.D., a psychiatrist, to evaluate
appellant for both his competency to stand trial and for purposes of appellant’s
insanity defense. Fuller testified that he initially found appellant competent to
stand trial early in 2022. Fuller stated that appellant had some trouble recalling the
specific events surrounding the complainant’s death over the ten times he visited
with appellant in jail. According to Fuller, appellant treated him with some
suspicion believing Fuller was part of a “judicial conspiracy” against appellant.

8
According to Fuller, it was not until more details were provided by two other
sanity evaluations performed by two psychologists, Timothy Proctor, Ph.D. and
Anna Buckingham, PsyD., that Fuller concluded appellant was insane at the time
of the offense. Fuller explained that it was a “cluster of information” describing
appellant’s symptoms and “psychotic episodes” before the offense that had a
bearing on appellant’s insanity defense. As a result of these new details, Fuller
testified that his opinion on appellant’s insanity at the moment he killed his son
changed from “ambivalent” in early 2022, to “positive” by August of the same
year.

Fuller’s first report, completed in January 2022, diagnosed appellant with
“Unspecified Psychotic Disorder and Marijuana Use Disorder.” According to
Fuller, whenever he visited appellant in jail, appellant “would stand rigidly, as if a
statue, in his isolation cell naked, staring at me with a wild look in his eyes. He
wouldn’t move. He wouldn’t interact. This was months after the event, and
[appellant] would just stand there naked staring at me.” Fuller testified that after
he had completed ten brief visits with appellant, he had gathered enough
information to write his report finding appellant insane. Fuller also testified that he
had one productive visit with appellant but the others “were extremely brief due to
his unwillingness to cooperate with [Fuller].”

Fuller was also made aware of other incidents occurring in the jail involving
appellant, including one on September 23, 2018, in which appellant told his jailers
repeatedly, “I need your forgiveness for killing my son.” In another incident two
weeks after the first, appellant told jail staff that he felt like killing himself.
According to Fuller, appellant later denied being suicidal. In addition, Fuller
testified appellant refused to see any mental health providers or other doctors
working at the jail. As a result of his failure to see any of the doctors, he did not

9
receive any treatment or medication for his condition.

Fuller testified that he had diagnosed appellant with schizophrenia. Fuller
admitted that it was difficult to reach a conclusion on appellant’s sanity; however,
he believed appellant was “actively psychotic” at the time of the offense. Fuller
continued that appellant was “so overwhelmed and fearful” that he did not
appreciate the fact he was committing a crime—even though, appellant later
expressed regret for his actions.

Fuller admitted that nothing in the evidence specifically demonstrates that
appellant did not know his conduct was wrong. Despite this, Fuller opined that the
videos from the officers’ body cameras showed appellant to be fearful for his life
and convinced that family members were conspiring to kill him. Fuller also
testified that it was questionable whether appellant understood the Miranda
warnings given to him before his interviews with police investigators. Fuller’s
opinion formed the basis of appellant’s motion to suppress appellant’s interviews
with investigators.

Another psychologist expert, Timothy Proctor, Ph.D., met appellant once in
preparing his opinions. When Proctor asked appellant during this meeting if he
had any independent memory of the offense, appellant replied, “I’m guilty.”
Nevertheless, Proctor testified that he believed appellant was coming out of a
psychotic state while in the bathtub of the apartment before the officers placed him
into custody. Proctor believed appellant suffers from a psychotic disorder—
possibly schizophrenia. Accordingly, Proctor opined that appellant did not
understand, at the exact moment of the offense, that killing the complainant was
wrong.

A third psychologist expert, Anna Buckingham, PsyD., met with appellant
for a total of nine hours over four sessions. In his initial interview with
10
Buckingham, appellant characterized his actions at the time of the offense as an
“overreaction.” Appellant also characterized his behavior as “snapping and just
losing it.” Buckingham ultimately concluded that appellant was suffering from a
severe mental illness at the time of the offense, which resulted in “grossly impaired
behavior.” Buckingham also opined the onset of his psychosis was substance
induced. Buckingham’s finding was based, in part, on appellant’s history of “using
substances, both prescribed narcotics as well as illicit substances, [specifically,
daily marijuana use] leading up to the incident.”

As to whether appellant understood the wrongfulness of his actions at the
time of the offense, Buckingham testified that he did. Although Buckingham
believed appellant was suffering from a cannabis-induced psychotic episode at the
time of the offense, she still concluded appellant knew that smashing the
complainant’s head was wrong. Buckingham based her conclusion on several
facts, including appellant trying to hurt himself shortly after the incident by
stabbing himself in the neck with a sharp comb and then hiding behind three
locked doors to wait for the police to arrive. Buckingham disagreed with a
schizophrenia diagnosis because schizophrenia requires continuous symptoms, and
after the passage of three years, she found no medical records or other evidence
indicating that schizophrenia was an ongoing symptomatic problem for appellant.

Following Buckingham’s testimony, Fuller was called back to testify that he
strongly disagreed with Buckingham’s conclusion that appellant was under the
influence of marijuana-induced psychosis. Fuller testified that the condition is
“relatively rare” and that a large percentage of people with schizophrenia and
psychotic disorders use marijuana, often to “escape the misery of their condition.”
Fuller explained that “[i]n the course of my 40 years in healthcare, I don’t believe
I’ve ever seen a case like this where marijuana was the culprit.” Fuller also did not

11
believe appellant “had anything but a chaotic paranoid idea of what was
happening” at the time of the offense.

On the morning of the fourth day of trial testimony, appellant’s counsel filed
a Motion Suggesting Incompetency and Request for Court Ordered Independent
Examination by a Forensic Psychiatrist. Appellant’s counsel filed the motion after
Fuller, their psychiatrist expert witness, met with appellant in preparation for
Fuller’s trial testimony and then told appellant’s attorneys that he believed
appellant was not competent to continue with the trial. While appellant’s trial
counsel asked the trial court to adjourn the trial and order the psychiatric
examination immediately, the trial court instead decided to hold the informal
competency hearing after the jury’s verdict but before imposing appellant’s
sentence as permitted by Article 46B.005(d) of the Code of Criminal Procedure.

At the close of the evidence, appellant asked for the lesser included offense
of first-degree felony injury to a child be submitted in the jury charge, which the
trial court denied. The trial court did instruct the jury that “voluntary intoxication
does not constitute a defense to the commission of a crime.” The case was then
submitted to the jury, which found appellant guilty as charged. After the jury
rendered its verdict, the trial court conducted the informal competency hearing and
then denied appellant a full competency trial. The trial court then sentenced
appellant to the mandatory sentence of life in prison without the possibility of
parole. See Tex. Penal Code Ann. § 12.31(a)(2). This appeal followed.

ANALYSIS
Appellant challenges his conviction in six issues. We address them in order.

I. Sufficient evidence supports the jury’s rejection of appellant’s insanity
affirmative defense.

In his first issue on appeal, appellant contends the evidence supporting the

12
jury’s implicit rejection of his insanity affirmative defense was legally
insufficient. 2 See Tex. Penal Code Ann. §§ 2.04; 8.01(a).

A. Standard of review and applicable law

In Texas, a defendant is excused from criminal responsibility if he proves,
by a preponderance of the evidence, the affirmative defense of insanity. Ruffin v.
State, 270 S.W.3d 586, 592 (Tex. Crim. App. 2008). The test is whether, at the
time of the conduct charged, the defendant, as a result of a severe mental disease or
defect, did not know that his conduct was “wrong.” Id. Under Texas law, “wrong”
in this context means “illegal.” Id. (citing Tex. Penal Code Ann. § 8.01(a) (“It is
an affirmative defense to prosecution that, at the time of the conduct charged, the
actor, as a result of severe mental disease or defect, did not know that his conduct
was wrong.”). “Thus, the question for deciding insanity is this: Does the defendant
factually know that society considers this conduct against the law, even though the
defendant, due to his mental disease or defect, may think that the conduct is
morally justified?” Id.

The defendant has the burden to establish an affirmative defense by a
preponderance of the evidence. See Tex. Penal Code Ann. § 2.04; Matlock v.
State, 392 S.W.3d 662, 666 n.5 (Tex. Crim. App. 2013). A defendant bears both
the burden of proof and the burden of persuasion on the insanity affirmative
defense. Meraz, 785 S.W2d at 150. When an appellant contends the fact finder
had insufficient evidence to support its rejection of an affirmative defense, we
2
Appellant has challenged only the legal sufficiency of the evidence supporting the
jury’s implicit rejection of his insanity affirmative defense. He has not challenged, and we
therefore do not address, the sufficiency of the evidence supporting his capital murder
conviction. See Meraz v. State, 785 S.W.2d 146, 153 (Tex. Crim. App. 1990) (“It is apparent
therefore that a review of the facts relative to proof of an affirmative defense does not inexorably
lead to a review of facts relative to proof of the elements of the offense. Although a defendant
certainly is not foreclosed from requesting both reviews, the former does not incorporate the
latter.”).

13
apply the civil standards of review. Matlock, 392 S.W.3d at 669–71. Therefore,
when a defendant asserts the evidence was legally insufficient, appellate courts
first review the record for a “scintilla of evidence favorable to the factfinder’s
finding and disregard all evidence to the contrary unless a reasonable factfinder
could not.” Butcher v. State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015) (citing
Matlock, 392 S.W.3d at 669–71). If the court finds not even a scintilla of evidence
supports the fact finder’s rejection of the affirmative defense, it next considers
whether the affirmative defense was established as a matter of law. Matlock, 392
S.W.3d at 669. If the appellate record “reveals evidence supporting the
defendant’s position” but also shows that the “evidence was subject to a credibility
assessment and was evidence that a reasonable jury was entitled to disbelieve,” the
appellate court may “not consider that evidence in [its] matter-of-law assessment.”
Id. at 670. A fact finder’s rejection of “a defendant’s affirmative defense should be
overturned for lack of legal sufficiency only if the appealing party establishes that
the evidence conclusively proves his affirmative defense, and ‘no reasonable [fact
finder] was free to think otherwise.’” Butcher, 454 S.W.3d at 20 (quoting Matlock,
392 S.W.3d at 670).

The affirmative defense of insanity is a legal issue, not a medical one, and
the jury is not restricted to medical science theories of causation.” Graham v.
State, 566 S.W.2d 941, 952–53 (Tex. Crim. App. 1978). Expert testimony, even if
uncontradicted, does not establish insanity as a matter of law. Id. at 951. Indeed,
when resolving an insanity contention, the fact finder may accept lay testimony
over expert testimony. Id. A fact finder may, in addition to considering expert
testimony, weigh other factors in assessing the issue of insanity. Id. at 951–53.
Specifically, a fact finder may consider the person’s demeanor before and after the
offense, any attempts to evade police or to conceal incriminating evidence, a

14
person’s expressions of regret or fear of the consequences of his or her actions, and
possible motives for the offense. Id.

The insanity defense is not available when the defendant was voluntarily
intoxicated or temporarily insane due to intoxication. Tex. Penal Code Ann. §
8.04(a); Lopez v. State, 544 S.W.3d 499, 503 (Tex. App.—Houston [14th Dist.]
2018, no pet.). “Intoxication” in section 8.04(a) refers to the “disturbance of
mental or physical capacity resulting from the introduction of any substance into
the body.” Id. at § 8.04(d). Temporary insanity caused by voluntary intoxication
is considered a defensive issue and entitles a defendant to a mitigation instruction
during the punishment phase of a trial. Lopez, 544 S.W.3d at 503. It is not
available to obtain a not-guilty verdict. See McBurnett v. State, 629 S.W.3d 660,
664 (Tex. App.—Fort Worth 2021, pet. ref’d) (stating that voluntary intoxication
“is not a defense to the commission of a crime”).

B. Legally sufficient evidence supports the jury’s implicit rejection of
appellant’s insanity defense.

In his first issue, appellant summarizes the testimony of the three expert
witnesses, Fuller, Proctor, and Buckingham. He then argues that two of the
experts, Fuller and Proctor, opined that appellant was legally insane at the time of
the offense, while only a single expert, Buckingham, concluded appellant was sane
at the time of the offense. Appellant asserts that no rational trier of fact could have
“found the essential elements of capital murder beyond a reasonable doubt because
appellant has shown by a preponderance of the evidence that appellant was insane
at the time of the offense.”

Appellant misconstrues the standard of review. The fact that the number of
experts who opined appellant was insane at the time of the offense outnumbers the
number of experts opining that appellant was sane does not mandate the conclusion

15
that the evidence supporting appellant’s conviction was legally insufficient.
Instead, the jury, as the trier of fact, could have determined that Buckingham’s
opinion was more credible than either Fuller and Proctor’s opinions because of the
amount of time she spent with appellant in preparing her opinion. In addition,
Buckingham testified that, at the time of the offense, appellant was suffering from
a severe mental illness caused by his use of marijuana. Based on Buckingham’s
opinion, and Shekinah’s testimony detailing their marijuana use throughout the day
the complainant was killed, the jury could have reasonably concluded that
appellant was voluntarily intoxicated at the time of the offense and the insanity
defense did not apply to excuse his conduct. See Tex. Penal Code Ann. § 8.04(a);
McBurnett, 629 S.W.3d at 664 (stating that voluntary intoxication “is not a defense
to the commission of a crime”). In addition, the jury could have accepted
Buckingham’s opinion testimony that while appellant was suffering from a
marijuana-induced psychotic state at the time of the offense, he still understood
that his conduct in smashing the complainant’s head was wrong as demonstrated
by his actions while awaiting the arrival of the police and after he was taken into
custody by the police. We conclude the evidence is legally sufficient to support
the jury’s implicit rejection of appellant’s insanity defense. Butcher, 454 S.W.3d
at 20. We overrule appellant’s first issue.

II. The trial court did not abuse its discretion when it denied appellant’s
motion to suppress with respect to appellant’s statements to the
Pearland Police.

In his second issue, appellant asserts that he “was suffering from a mental
illness at the time of the killing and during the interviews,” “was not competent,”
and “was incapable of understanding the meaning and effect of waiving his
Miranda warnings.” As a result, appellant argues the trial court abused its
discretion when it denied his motion to suppress both statements that he gave to

16
Pearland Police investigators.

When reviewing a trial court’s ruling on a motion to suppress statements
made during a custodial interrogation, we apply a bifurcated standard of review.
Pecina v. State, 361 S.W.3d 68, 78–79 (Tex. Crim. App. 2012) (citing Guzman v.
State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). We review the ruling in light
of the totality of the circumstances, giving total deference to the trial court on
questions of historical fact, as well as its application of law to fact questions that
turn on credibility and demeanor. Pecina, 361 S.W.3d at 79; Leza v. State, 351
S.W.3d 344, 349 (Tex. Crim. App. 2011). In other words, at a suppression
hearing, the trial judge is the sole trier of fact and assesses the witnesses’
credibility and decides the weight to give their testimony. See Wiede v. State, 214
S.W.3d 17, 24–25 (Tex. Crim. App. 2007) But, we review de novo the trial
court’s rulings on questions of law and mixed questions of law and fact that do not
depend on credibility determinations. Pecina, 361 S.W.3d at 79; Leza, 351 S.W.3d
at 349. We view the record in the light most favorable to the trial court’s ruling
and reverse the judgment only if it lies outside the zone of reasonable
disagreement. Hereford v. State, 339 S.W.3d 111, 118 (Tex. Crim. App. 2011).

If the trial court’s decision is correct under any theory of law applicable to
the case, the decision will be sustained. Umana v. State, 447 S.W.3d 346, 351
(Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (citing State v. Ross, 32 S.W.3d
853, 855–56 (Tex. Crim. App. 2000).

Under Article 38.21, “[a] statement of an accused may be used in evidence
against him if it appears that the same was freely and voluntarily made without
compulsion or persuasion.” Tex. Code Crim. Proc. Ann. art. 38.21. A defendant
may claim his statement was not freely or voluntarily made and, thus, inadmissible
under (1) Article 38.22, Section 6 of the Texas Code of Criminal Procedure; (2)

17
Miranda, as expanded in Article 38.22, Sections 2 and 3; or (3) the Due Process
Clause. Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008); Tex.
Code Crim. Proc. Ann. art. 38.22, §§ 2, 3, 6; U.S. Const. amend. V. A statement
may be involuntary under any of these theories. Oursbourn, 259 S.W.3d at 169.

A confession may be involuntary under the Due Process Clause or Miranda
only when there is police coercion or overreaching that is causally related to the
confession. Id. “Even if a confession is not the product of a meaningful choice
(for example, when it is made in response to hallucinations or to a private person’s
threat), it is nonetheless ‘voluntary’ within the meaning of the Due Process Clause
absent some coercive police activity.” Oursbourn, 259 S.W.3d at 170 (citing
Colorado v. Connelly, 479 U.S. 157, 164 (1986) (holding that a defendant’s mental
condition, by itself and apart from its relation to official coercion, should not
dispose of the inquiry into constitutional “voluntariness”)).

During the suppression hearing, Arnold, a certified mental health peace
officer, testified that his interview with appellant occurred about three hours after
the offense. Arnold read the Miranda warnings to appellant, who claimed that he
understood them. Throughout the interview, appellant’s answers were appropriate
for the questions asked. According to Arnold, there was no indication appellant
was intoxicated or having a mental health crisis. Arnold testified appellant had
been placed in a restraint chair because he was combative during the arrest, not
because appellant was emotionally unstable. Arnold stopped the interview when
appellant invoked his right to counsel. Arnold’s interview with appellant was
recorded by Arnold’s body camera. The video was admitted into evidence during
the suppression hearing and reviewed by the trial court.

The State also called McGuire to testify during the suppression hearing.
McGuire testified that, at approximately 10:40 a.m. on the morning after the

18
offense, appellant reinitiated contact with investigators by telling jailers that he
wanted to speak with an investigator. McGuire and DeSpain responded to
appellant’s request. Appellant was once again given his Miranda warnings and
agreed to be interviewed. Once again, the interview was videoed by the police
investigators and the trial court reviewed the video before ruling. Nothing about
appellant’s demeanor during the interview caused the two investigators to believe
appellant was intoxicated or having a mental health crisis.

Appellant called Fuller during the suppression hearing. Fuller testified that
he was at the Brazoria County Jail working on other cases when appellant arrived
from the Pearland Police Station jail. Fuller described appellant’s demeanor at the
time as “psychotic,” “wild-eyed,” “highly agitated,” and “delusional.” Fuller also
testified that appellant has either bipolar disorder or schizophrenia and “was not
aware of the wrongfulness of his acts at the time of the offense.” When asked
whether he believed appellant understood the Miranda warnings given to him by
the Pearland Police investigators, Fuller stated that he believed appellant “was very
ill in and around the time of the offense.” Fuller continued that “if I had been
commissioned to do a competency evaluation at the time I saw him in the jail, I
would have certainly found him not competent.” Fuller further testified that he
believed appellant was able to “literally” understand the Miranda warnings he
received, but his judgment and perspective were impaired, which led to him
speaking with the investigators. Fuller opined that appellant was psychotic at the
time, and under a “delusional belief that he was a superior being and that he could
carry some others along.”

Nothing in the record shows that appellant’s first two statements to
investigators were borne by coercion or overreaching by investigators. Appellant
maintains only that he was “not competent to understand the effects of waiving his

19
Miranda warnings.” Appellant points to the fact that he had been diagnosed with
schizophrenia and bipolar mood disorder and “was suffering from a mental illness
at the time of the killing and during [his] interviews.” Thus, appellant’s argument
falls under article 38.22 of the Code of Criminal Procedure— not the Due Process
Clause.

Article 38.22 voluntariness claims can be broader in scope than Due Process
or Miranda. A claim that a statement is involuntary under Article 38.22 can be
predicated upon police overreaching, but can also include other factors that go to
the state of mind of the defendant who has confessed, such as illness, medication,
hallucinations, or private threats. Oursbourn, 259 S.W.3d at 172; (citing Tex.
Code Crim. Proc. Ann. art. 38.22, § 6). “The voluntariness of a statement given by
a person with a mental illness is reviewed under the totality of the circumstances,
which is the same standard that applies to persons with regular mental capacities.”
Foster v. State, 579 S.W.3d 606, 615 (Tex. App.—Houston [14th Dist.] 2019, no
pet.) (citing Delao v. State, 235 S.W.3d 235, 241 (Tex. Crim. App. 2007)).

In this case, the evidence shows that the Pearland Police investigators
advised appellant of his Miranda rights and his Article 38.22 statutory rights.
Appellant had the basic reasoning skills to understand them and voluntarily waived
them. Appellant gave no indication that his mental capabilities prevented him
from understanding the warnings or the investigators’ questions. See Umana, 447
S.W.3d at 357 (“Although [defendant] said at the close of the interview that he
hears people talking to him and they tell him to do things, he did not claim, and
there is no indication in the 47–minute interview, that he was having such an
experience at the time of the interview.”)

Based on the totality of the circumstances, the record supports the trial
court’s conclusion that appellant voluntarily waived his rights. See id. at 353–58

20
(upholding trial court’s finding that waiver was voluntary, despite claim of
untreated mental illness, where there was evidence defendant “knew what he was
talking about,” “seemed to understand what the officer was asking him,” “[did] not
appear as though he’s in any way delusional,” and “didn’t appear to be
hallucinating”). Accordingly, we conclude that the trial court did not abuse its
discretion when it denied appellant’s motion to suppress and subsequently
admitted both of his statements to police investigators into evidence during
appellant’s trial. We overrule appellant’s second issue.

III. The trial court did not abuse its discretion when it denied appellant’s
request for a lesser-included offense to be included in the jury charge.

Appellant argues in his third issue that the trial court abused its discretion
when it denied his request to include a lesser-included offense in the jury charge.
Specifically, appellant asked the trial court to include felony injury to a child in the
jury charge. Because there was less than a scintilla of evidence that would permit
a rational jury to find that, if appellant was guilty, he was guilty only of the lesser-
included offense of felony injury to a child, we disagree.

We apply a two-step process to determine whether a defendant was entitled
to an instruction on a lesser-included offense. Cavazos v. State, 382 S.W.3d 377,
382 (Tex. Crim. App. 2012). First, we determine whether the offense qualifies as a
lesser-included offense under Texas Code of Criminal Procedure Article 37.09.
Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011); see Tex. Code. Crim.
Proc. art. 37.09. This is a question of law. Hall v. State, 225 S.W.3d 524, 535
(Tex. Crim. App. 2007). Next, we determine whether there is some evidence that
would have permitted the jury to rationally find that if the defendant was guilty, he
was guilty only of the lesser offense. Id. at 536.

Although the threshold showing for an instruction on a lesser-included

21
offense is low—more than a scintilla of evidence—the evidence must establish that
the lesser-included offense is a valid and rational alternative to the charged offense.
Id. “[I]t is not enough that the jury may disbelieve crucial evidence pertaining to
the greater offense; there must be some evidence directly germane to a lesser
included offense for the factfinder to consider before an instruction on a lesser
included offense is warranted.” Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim.
App. 1994). That evidence must also establish that the lesser-included offense is a
“valid rational alternative” to the charged offense. Cavazos, 282 S.W.3d at 385.

We have previously determined that injury to a child is a lesser-included
offense of capital murder. Martin v. State, 246 S.W.3d 246, 265 (Tex. App.—
Houston [14th Dist.] 2007, no pet.); Paz v. State, 44 S.W.3d 98, 101 (Tex. App.—
Houston [14th Dist.] 2001, pet. ref’d). We therefore turn to whether there was
some evidence in the record that would permit a rational jury to find that the
defendant is guilty of only the lesser offense. Hall, 225 S.W.3d at 536.

In his argument appellant relies entirely on his statement to police
investigators that he tossed the complainant on the floor as he followed Shekinah
out of the apartment. In appellant’s view, this part of his statement represents
more than a scintilla of evidence that he did not intend to kill the complainant, but
only to “recklessly injure” him. We conclude it is not.

In reaching this conclusion we are guided by our holding in Paz v. State, a
similar case. Paz, 44 S.W.3d at 101. In Paz, the defendant, who was charged with
capital murder, argued that the trial court should have included the lesser-included
offense of injury to a child because Dr. Moore, the pathologist who conducted the
autopsy of the deceased child, testified that “she did not know whether the conduct
causing [the child’s] death was intentional or reckless.” Id. Unlike the present
case there were no eyewitnesses to the offense in Paz. Id. at 102. As a result, we

22
had to rely on the testimony of the expert witnesses to “inform us of the nature of
[the] child’s injuries.” Id. The autopsy revealed that the child “died as a result of a
blunt-force head injury.” Id. at 100. The autopsy also reported that the child had
bruises to the left and right of his chin, massive hemorrhaging in the brain, and a
large skull fracture. Id. Another expert, a Dr. Shook, examined Dr. Moore’s
autopsy report and when asked how much force it would take to cause the child’s
injuries testified that children in “high-impact motor vehicle crashes may sustain
an injury this severe, but it would be unusual.” Id. at 101. Dr. Shook continued
that “even if one is propelled out of the window going 60 miles an hour, you may
not get a head injury quite this severe. This is an extremely high-impact injury . . .
it is not consistent with having fallen in an unintentional way.” Id. Finally, we
pointed out that Dr. Moore did not testify that she knew the blow was inflicted
recklessly, only that it could have been a reckless act. Id. Having reviewed the
evidence in the case, we affirmed the trial court’s refusal to submit the lesser-
included offense to the jury because there was no evidence that would warrant a
charge on the lesser-included offense of injury to a child. Id.

In the present case, however, there was an eyewitness to the offense.
Shekinah testified that she saw appellant slam the complainant’s head onto the
bathtub. The medical examiner testified that she observed blunt torso trauma, two
rib fractures, and a large laceration of the complainant’s liver. She also determined
that the complainant’s vertebral column was broken in two places. In addition, a
portion of the complainant’s brain had been knocked out of his skull and was
spread out on the kitchen floor. The police investigators at the scene recovered the
brain matter by wiping it up with a baby blanket and then sent it to the medical
examiner. According to the medical examiner who conducted the autopsy, none of
the complainant’s injuries were consistent with him being dropped accidentally,

23
even on a hard surface, but instead required significant force to inflict, force like
being slammed head-first into a hard object. We conclude there is no evidence in
the record that would permit a rational jury to find appellant was guilty of only the
lesser offense of injury to a child. See id. We overrule appellant’s third issue.

IV. The trial court did not abuse its discretion when it denied appellant’s
motion to suppress his interview with DFPS Investigator Adauto.

In his fourth issue appellant asserts that the trial court abused its discretion
when it denied his motion to suppress Adauto’s interview with appellant. In
appellant’s view: (1) Adauto was “working in tandem with the Pearland Police
Department,” (2) her interview with appellant was a custodial interrogation, and
(3) Adauto was therefore required to give appellant Miranda warnings prior to the
interview. Miranda, 384 U.S. at 479. Appellant concludes by arguing that,
because it is undisputed that Adauto did not provide appellant Miranda warnings,
the trial court should have suppressed the statement resulting from the interview.

In support of his allegation that Adauto was working in tandem with the
Pearland Police, appellant argues that Adauto’s testimony during the suppression
hearing established that she (1) spoke with a Pearland Police detective prior to
interviewing appellant at the Brazoria County Jail; (2) called the same detective
after her interview with appellant and told him what she learned during the
interview; (3) admitted that she did not give appellant Miranda warnings; and (4)
was aware from her prior experience as a police detective in Del Rio, Texas, that a
close relationship existed between police and DFPS. Finally, appellant argues that
appellant perceived the interview with Adauto as speaking with another law
enforcement official.

We address this issue under the standard of review set forth in section two
above.

24
In Wilkerson v. State, the Court of Criminal Appeals addressed an argument
similar to appellant’s. 173 S.W.3d 521, 527 (Tex. Crim. App. 2005). The Court
pointed out that Miranda “generally applies only to questioning by law
enforcement officers or their agents.” Id. They continued that being a state
employee “does not, by itself, make the person an agent of the state for the purpose
of defining custodial interrogation.” Id. (internal quotations omitted). Instead,
only those state employees “who are working for or on behalf of police are law-
enforcement state agents.” Id. at 528 (internal quotations omitted). The Court
recognized that while DFPS caseworkers and police both are interested in
gathering information, they generally “run on separate parallel paths.” Id. at 529.
The Court also recognized, however, that “if the once-parallel paths of the [DFPS]
and the police converge, and police and state agent are investigating a criminal
offense in tandem, Miranda warnings and compliance with article 38.22 may be
necessary.” Id. When that occurs, then the DFPS worker “may be viewed as an
agent of the police.” Id. The Court stated that the “person alleging such a
relationship has the burden of proving it.” Id.

To resolve an allegation that a DFPS caseworker, such as Adauto, was
working as an agent of the police, a court must examine the entire record. Id. at
530. Central to this analysis are the actions and perceptions of the parties
involved: the police, the DFPS investigator, and the defendant. Ultimately, to be
an agent for law enforcement for the purpose of custodial interrogation, Adauto
had to interview appellant “for the primary purpose of gathering evidence or
statements to be used in a later criminal proceeding against [appellant].” Id. at
531.

Having reviewed the entire record, we turn first to two allegations made by
appellant which we conclude are not supported by the record. First, we find no

25
evidence on appellant’s perception of Adauto during the challenged interview.
Second, we conclude there is no evidence supporting appellant’s allegation that
Adauto, based on her prior experience as a police officer, was aware of a close
working relationship between DFPS and the police. Instead, Adauto testified that
when she was a detective in Del Rio, the district attorney there “would request that
we - - when we’re submitting cases, we do request that [any DFPS] report to be
included.” As a result, neither of these allegations made by appellant supports a
conclusion that Adauto was working in tandem with the Pearland Police during the
investigation of the complainant’s death.

In addition, in making his argument that Adauto was an agent of the
Pearland Police, appellant overlooks much of the evidence in the suppression
hearing record which the trial court, as the trier of fact, could have reasonably
believed and then relied upon in reaching its implicit conclusion that Adauto was
not an agent of the Pearland Police. See Pecina, 361 S.W.3d at 79 (stating that
reviewing courts “afford almost total deference to the trial court’s rulings on
questions of historical fact and on application of law to fact questions that turn
upon credibility and demeanor . . . .”). This evidence includes Adauto’s testimony
that: (1) she worked as an investigator with the DFPS child fatality unit; (2) she
was assigned to perform an investigation of the complainant’s death because there
was a sibling in the household; (3) her investigation was separate from the police
investigation and her decision to interview appellant was not prompted by the
police; (4) the purpose of her investigation was to “establish the details of the event
for the safety of the surviving siblings;” (5) she met the Pearland detective at the
Brazoria County Children’s Assessment Center three days after the complainant
was killed where she asked about the charges, the scene, and where appellant was
located; (6) the Pearland detective did not tell her what to do in her investigation

26
and she thought it would be improper if the detective had tried to do so; (7) the
main purpose behind interviewing appellant in the jail was to gather all of the facts
about the complainant’s death; (8) she was not trying to help the police
investigation when she interviewed appellant; (9) she did not tell the detective that
she was going to interview appellant; (10) while she did call the detective after her
interview and provide him with an oral summary of the interview, she denied
having any further contact with the Pearland Police Department and was not aware
of any other member of her department contacting them; and (11) she did not
provide the Pearland Police with a copy of her report.

The trial court could have also reasonably believed Pearland Police
Detective McGuire’s testimony during the suppression hearing. McGuire testified
that he was aware that a DFPS investigation would occur simultaneously with the
Pearland Police investigation. According to McGuire, he met Adauto at the
Brazoria County Children’s Assessment Center where they interviewed Shekinah’s
daughter to find out what she might have witnessed in the apartment. McGuire
testified that he did not discuss anything about appellant during this meeting.
McGuire denied there was a “relationship” between DFPS and the police, and
instead testified that there was “a limited share process.” McGuire continued that

anytime that there’s any type of an event like that and there’s another
- - especially with another child in the home, it’s common practice
that we’re going to start the [DFPS] investigation. And do, since
we’re going to start the [DFPS] investigation, there’s certain basics
that have to be given like the - - a general synopsis of what took place
that - - day and where the - - obviously during intake they ask specific
questions like, okay, who’s the alleged suspect, who’s the mother,
who’s the father, who’s - - where - - what’s the address, phone
numbers, ages, child’s names. So, all that stuff would - - would be
standard.

McGuire denied that he gave Adauto any instructions on how to proceed

27
with her investigation. He also denied that he provided Adauto with questions to
ask appellant. McGuire admitted that Adauto contacted him by telephone the
evening she interviewed appellant in the Brazoria County Jail and provided him
“with a brief synopsis of how” her “conversation [with appellant] had gone.”
McGuire testified that when he submitted his investigation report and evidence to
the Brazoria County District Attorney’s office, the DFPS packet was not included.
McGuire explained that the police report is done in “a little bit timelier manner,”
and he did not believe that the DFPS report was complete at that time. Finally,
McGuire testified that he had not seen or read the DFPS report on their
investigation, it had not been added to his own report, but he could “probably
request it.”

Because there is evidence in the record, summarized above, supporting the
trial court’s implicit conclusion that Adauto was not acting as an agent of the
Pearland Police Department when she interviewed appellant, we hold that it did not
abuse its discretion when it denied appellant’s motion to suppress his statement to
Adauto. We overrule appellant’s fourth issue.

V. The trial court did not abuse its discretion when it decided to conduct
the informal competency inquiry after the verdict but before sentence
was imposed.

On the morning of the fourth day of appellant’s trial, appellant’s attorney
filed a Motion Suggesting Incompetency and Request for Court Ordered
Independent Examination by a Forensic Psychiatrist. During a hearing outside the
jury’s presence, appellant’s attorneys asked the trial court to adjourn the trial for
that forensic examination to occur. The trial court, after reading article 46B.005(d)
of the Code of Criminal Procedure, denied appellant’s request to adjourn the trial
and instead decided to hold the informal inquiry into appellant’s competency to

28
stand trial after the jury returned its verdict but, if appellant was found guilty,
before the imposition of appellant’s sentence. See Tex. Code Crim. Proc. Ann. art.
46B.005(d) (“If the issue of the defendant’s incompetency to stand trial is raised
after the trial on the merits begins, the court may determine the issue at any time
before the sentence is pronounced. If the determination is delayed until after the
return of a verdict, the court shall make the determination as soon as reasonably
possible after the return.”). Appellant argues in his fifth issue that the trial court
abused its discretion when it made the decision to delay the informal inquiry into
appellant’s competency until after the jury returned its verdict. 3

We review a trial court’s decision regarding an informal competency inquiry
for an abuse of discretion. Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim.
App. 2009), superseded by statute on other grounds as stated in Turner v. State,
422 S.W.3d 676, 692 n.31 (Tex. Crim. App. 2013). Under this standard, a
reviewing court does not substitute its judgment for that of the trial court. Hobbs v.
State, 359 S.W.3d 919, 924 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
Rather, a reviewing court considers whether the trial court’s decision was arbitrary
or unreasonable. Id.

Because the plain language of article 46B.005(d) of the Code of Criminal
Procedure permits a trial court, once a trial on the merits has begun, to determine
the issue of a defendant’s competency “at any time before the sentence is
pronounced,” we cannot say that the trial court abused its discretion when it
exercised that option. See Beedy v. State, 250 S.W.3d 107, 110 (Tex. Crim. App.
2008) (stating that when a trial judge lawfully exercises the option to cumulate a
defendant’s sentences, that decision is unassailable on appeal). We overrule

3
Appellant does not challenge the trial court’s decision that appellant was competent in
this appeal.

29
appellant’s fifth issue.

VI. The trial court did not abuse its discretion when it admitted a crime-
scene photograph of the deceased complainant.

In his final issue on appeal, appellant argues that the trial court abused its
discretion when it admitted State’s Exhibit 63, a crime scene photograph of the
complainant’s body laying on the kitchen floor with brain matter on the floor
beside the body. While acknowledging that the photograph was relevant to the
charge against him, appellant argues that the trial court should have sustained his
Rule 403 objection and excluded the photograph. In appellant’s view, the State
had other evidence, including the police officer’s bodycam videos and other
photographs of the crime scene, which showed the complainant’s body.

A trial court’s ruling on a motion to exclude evidence under Rule 403 of the
Texas Rules of Evidence is measured by an abuse of discretion standard and will
not be reversed if the ruling is within the zone of reasonable disagreement.
Andrade v. State, 246 S.W.3d 217, 227 (Tex. App.—Houston [14th Dist.] 2007,
pet. ref’d).

Evidence is relevant if it has any tendency to make the existence of any fact
of consequence to the determination of the action more probable or less probable
than it would be without the evidence. Tex. R. Evid. 401. Relevant evidence may
be excluded by the trial court under Rule 403 “if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, or needlessly presenting cumulative evidence.” Tex. R. Evid. 403. Rule
403 favors the admission of relevant evidence and carries a presumption that
relevant evidence will be more probative than prejudicial. Andrade, 246 S.W.3d at
227. When conducting a Rule 403 balancing test, a trial court determines whether

30
the probative value of the evidence is substantially outweighed by several
countervailing factors listed in the rule. Casey v. State, 215 S.W.3d 870, 879 (Tex.
Crim. App. 2007). The Court of Criminal Appeals explained that “unfair prejudice
refers to a tendency to suggest decision on an improper basis, often an emotional
one.” Id. It further explained that “confusion of the issues” refers to a tendency to
confuse or distract the jury from the main issues in the trial. Id. at 880. The Court
then gave an example suggesting that “evidence that consumes an inordinate
amount of time to present or answer . . . might tend to confuse or distract the jury
from the main issues.” Id. The Court then explained that “misleading the jury”
refers to the tendency that a particular item of evidence might be “given undue
weight by a jury on other than emotional grounds.” Id. Finally, the Court stated
that “undue delay” and “needless presentation of cumulative evidence” concern the
efficiency of the trial proceeding rather than the threat of an inaccurate decision.
Id. The Court then summarized these considerations by stating that a trial court,
when conducting a Rule 403 analysis, “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 repeat evidence already admitted.” Casey, 215
S.W.3d at 880. “In keeping with the presumption of admissibility of relevant
evidence, trial courts should favor admission in close cases.” Id. at 879.
“Generally, a photograph is admissible if verbal testimony as to matters depicted in
the photograph is also admissible.” Gallo v. State, 239 S.W.3d 757, 762 (Tex.
Crim. App. 2007). “A trial court does not err merely because it admits into
31
evidence photographs which are gruesome.” Sonnier v. State, 913 S.W.2d 511,
519 (Tex. Crim. App. 1995).

We turn first to the probative force of the challenged crime scene
photograph of the complainant; that is, the inherent probative force of the evidence
coupled with the proponent’s need for the challenged photograph. Casey, 215
S.W.3d at 879. We conclude that Exhibit 63 assisted the jury in understanding the
medical examiner and crime scene investigator’s testimony. See 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.”). In addition, while the State used the responding police officers’
body camera videos during appellant’s trial, those that showed the complainant’s
body at all, did so only fleetingly and from a distance. Second, Exhibit 63 was
relevant to rebut appellant’s defensive theory that he did not possess the intent to
kill the complainant, but instead was merely reckless when he dropped the
complainant. We conclude that the challenged photograph, Exhibit 63, was highly
probative and the State’s need for it was great. See Drew v. State, 76 S.W.3d 436,
452–53 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (concluding trial court
did not abuse its discretion when it admitted post-autopsy photographs because
they assisted the jury in understanding the medical examiner’s testimony and
because photographs rebutted defendant’s theory that victim’s death was
accidental).

We turn now to balancing the probative value of the autopsy photographs
against the Rule 403 counterfactors explained above. See Casey, 215 S.W.3d at
883.

We first examine whether the autopsy photographs have the potential to

32
impress the jury in an irrational but indelible way. Andrade, 246 S.W.3d at 228.
Rule 403 does not exclude all prejudicial evidence. It focuses only on the danger
of unfair prejudice. State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App.
2005). Unfair prejudice refers only to the tendency of relevant evidence to tempt
the jury into finding guilt on grounds apart from the proof of the offense charged.
Id. at 439. The prejudicial effect may be created by the tendency of the evidence
to prove some adverse fact not properly in issue or to unfairly excite emotions
against the defendant. Appellant’s argument is based on the latter premise.

We conclude that Exhibit 63 was not inflammatory as it was essential to
establish the State’s case against appellant. In addition, the photograph was
addressed in a straightforward manner not designed to influence the jury in an
emotional manner. Finally, the power of the photograph stems from nothing more
than the effects of appellant’s own criminal conduct and is no more gruesome than
the facts of the offense itself. See Sonnier, 913 S.W.2d at 519. Even if we assume
Exhibit 63 was presented to the jury in color, 4 we hold it was not of such a
horrifying or appalling nature that a juror of ordinary sensitivity would have
difficulty rationally deciding the critical issues of the case after viewing the
exhibit. Fuller v. State, 829 S.W.2d 191, 206 (Tex. Crim. App. 1992), overruled
on other grounds by Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App. 1995);
Moralez v. State, 450 S.W.3d 553, 569 (Tex. App.—Houston [14th Dist.] 2014,
pet. ref’d) (“Even if photographs are gruesome, their probative value is not
substantially outweighed by the danger of unfair prejudice under Rule 403 if they
are no more gruesome than the crime scene itself as it was found by the police.”)

4
The appellate record contains only a black and white digital version of Exhibit 63.
While we can order the original if necessary, we conclude that fact is immaterial as we conclude
the photograph is not overly gruesome regardless of whether the original was black and white or
in color.

33
(internal quotations omitted).

Next, we inquire as to the tendency of Exhibit 63 to confuse or distract the
jury from the main issues in the case. See Casey, 215 S.W.3d at 880. Here,
Exhibit 63 addressed an essential element of the State’s case against appellant,
specifically, that his conduct that night was committed intentionally or knowingly.
Exhibit 63 also served to rebut appellant’s defensive theory that the complainant’s
fatal injuries were the result of an accident. This factor does not weigh against
admitting Exhibit 63 into evidence.

Third, we examine any tendency of Exhibit 63 to be given undue weight by
the jury on any basis other than emotional grounds. Gigliobianco v. State, 210
S.W.3d 637, 641 (Tex. Crim. App. 2006). We have already concluded the
challenged photograph was crucial evidence in proving the State’s case against
appellant. Therefore, the mere fact that it documents the result of a particularly
horrific crime does not make it overly inflammatory or likely to confuse, mislead,
or distract the jury. See Santellan, 939 S.W.2d at 168–69. This factor does not
weigh against admission of Exhibit 63.

Finally, we examine the likelihood that the admission of Exhibit 63
consumed an inordinate amount of time or merely repeated evidence already
admitted. Gigliobianco, 210 S.W.3d at 642. We conclude that the time involved
in presenting Exhibit 63 to the jury and discussing its significance to the charged
offense was minimal when compared to the overall length of the whole trial. We
also conclude that Exhibit 63 was not cumulative of other evidence. Chamberlain,
998 S.W.2d at 237. This factor also does not weigh against admission of the
challenged photographs.

Having considered the Rule 403 factors, we hold that the trial court did not

34
abuse its discretion when it overruled appellant’s objection and admitted Exhibit
63. We overrule appellant’s sixth issue.

CONCLUSION

Having overruled appellant’s issues on appeal, we affirm the trial court’s
judgment.

/s/ Jerry Zimmerer
Justice

Panel consists of Justices Wise, Zimmerer, and Poissant (Poissant, J., concurring).
Publish — TEX. R. APP. P. 47.2(b).

35