law-evidence-photographs


In his fourth issue, appellant claims the trial court erred in admitting autopsy photographs of A.F.  We review a
trial court's decision to admit photographs for an abuse of discretion.  Gallo v. State, 239 S.W.3d 757, 762 (Tex.
Crim. App. 2007).  We will not overturn such a decision if it falls within the zone of reasonable agreement.  
Rayford v. State, 125 S.W.3d 521, 529 (Tex. Crim. App. 2003).

In the Interest of KY and KY (Tex.App.- Houston [14th Dist.] Nov. 6, 2008)(Yates)
(
termination of parental rights, chronic child abuse, death by murder of step child, admission of autopsy photos,
home state jurisdiction
, failure to join necessary party, waiver of error)
Appellant first contends that the photographs were inadmissible because they are irrelevant.  Evidence is
relevant if it has the tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.  Tex. R. Evid. 401.  Generally,
photographs are admissible if oral testimony as to the matters depicted in the photographs is also admissible.  
Gallo, 239 S.W.3d at 762.  Appellant argues that the photographs are irrelevant because they do not establish
that he, as opposed to A.F.'s mother, inflicted these injuries.  Even assuming the photographs are not relevant
for this purpose, they are relevant to show an ongoing pattern of mistreatment, including severe physical abuse
and malnutrition, and to help the jury to understand the medical examiner's testimony on these issues.  See In re
C.J.F., 134 S.W.3d 343, 356-57 (Tex. App.- Amarillo 2003, pet. denied) (finding no abuse of discretion in
admitting autopsy photographs in parental rights termination case to demonstrate ongoing pattern of severe
abuse and to assist medical examiner in explaining this to jury); see also Saldano v. State, 232 S.W.3d 77, 101
(Tex. Crim. App. 2007) (noting medical examiner appropriately used autopsy photographs to fully explain victim's
injuries); Rayford, 125 S.W.3d at 530 (same).  Appellant asserts the photographs are not relevant to show the
extent of A.F.'s injuries because the medical examiner's testimony had already established this.  However, visual
images of injuries are relevant, and testimony regarding those injuries does not eliminate this relevance.  See
Gallo, 239 S.W.3d at 762 (“A visual image of the injuries appellant inflicted on the victim is evidence that is
relevant to the jury's determination.  The fact that the jury also heard testimony regarding the injuries depicted
does not reduce the relevance of the visual depiction."); Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim.
App. 1999) (“We reject the premise that visual evidence accompanying oral testimony is cumulative of the
testimony or that it is of insignificant probative value.  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.").  The trial court did not abuse its discretion in determining that the autopsy
photographs are relevant.

Appellant contends that even if the photographs are relevant, the trial court erred in admitting them under Texas
Rule of Evidence 403 because they are graphic and cumulative.  Rule 403 provides that relevant evidence can
be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury or by considerations such as needless presentation of cumulative evidence.  Rule
403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more
probative than prejudicial.  Gallo, 239 S.W.3d at 762.  Factors to consider when evaluating whether the probative
value of photographs is substantially outweighed by the danger of unfair prejudice include the number of
photographs, their size, whether they are in color, their gruesomeness, and whether the body is clothed.  Id.

Appellant complains that all of the photographs should have been excluded under Rule 403 because they are
needlessly cumulative of the medical examiner's testimony explaining A.F.'s injuries.  However, as already
discussed, these pictures were important to assisting the jury in understanding the medical examiner's testimony,
and visual evidence has significant probative value apart from testimonial evidence on the same subject.  See
Gallo, 239 S.W.3d at 762; Chamberlain, 998 S.W.2d at 237.  Appellant also asserts that all of the photographs
are cumulative of the documents admitted that show his conviction for murdering A.F.  But the details of the type
and severity of the abuse inflicted - which were not included in the documents showing his conviction - are highly
probative for the jury's assessment of the risk to the children by maintaining contact with appellant.  See In re C.J.
F., 134 S.W.3d at 356- 57 (finding no abuse of discretion in admitting autopsy photographs of dead child in
termination proceeding in part because they were probative regarding endangerment of other child).  Appellant
makes a final global argument about the photographs; he complains that they could mislead the jury because
there was no evidence that he inflicted each and every injury inflicted but the jury could have so believed based
on the photographs.  The evidence showed that appellant was convicted of inflicting sufficient injuries to kill A.F.  
The probative value of the photographs to demonstrate her physical condition at the time of her death outweighs
the small risk that the jury might be improperly influenced by incorrectly concluding that appellant, rather than
someone else,  inflicted other injuries as well.  See Ramirez v. State, 815 S.W.2d 636, 647 (Tex. Crim. App. 1991)
(“An abuse of discretion arises only when the probative value of the photograph is small and its inflammatory
potential great.").

Exhibit 46 depicts A.F.'s unclothed body from her abdomen to her forehead and shows extensive bruising,
emaciation, and sunken eyes, which are shown partially open.  Appellant argues that this photograph is unfairly
prejudicial because it is graphic and needlessly cumulative of other photographs of A.F.'s injuries.  Even if this
photograph may be disturbing, that alone does not render it inadmissible.  See In re C.J.F. 134 S.W.3d at 356.  It
does no more than depict the reality of the abuse A.F. Suffered - abuse that lead to her death, which appellant
was convicted of causing.  See Rayford, 125 S.W.3d at 530 (“While the photos may be graphic, they depict the
realities of the crime committed."); Chamberlain, 998 S.W.2d at 237 (“The photographs are gruesome in that they
depict disagreeable realities, but they depict nothing more than the reality of the brutal crime committed.  And it is
precisely because they depict the reality of this offense that they are powerful visual evidence . . . .").  Some of
the bruises and emaciation shown in Exhibit 46 are visible in other exhibits, but they are depicted from different
angles and levels of closeness, and such comparison can provide the jury with additional information about the
injuries.  See Bacey v. State, 990 S.W.2d 319, 326 (Tex. App.- Texarkana 1999, pet. ref'd) (“When there are two
or more pictures that depict the same thing but from different perspectives, the jury can gain information it might
not otherwise have when viewing other pictures from other perspectives.").  Moreover, no other exhibit more fully
demonstrates the overall extent of A.F.'s injuries and physical condition at the time of her death.  See Etheridge
v. State, 903 S.W.2d 1, 21 (Tex. Crim. App. 1994) (finding no abuse of discretion in admitting multiple autopsy
photographs showing injuries at different angles, including some close ups, to demonstrate the overall state of
the body and to highlight certain injuries); Bacey, 990 S.W.2d at 326 (concluding photograph of murder victim
showing body in its entirety not cumulative of other photographs showing specific portions of body).  The
photograph is not so graphic as to encourage the jury to resolve the case on an emotional or other improper
basis.  See Saldano, 232 S.W.3d at 101 (finding that autopsy photographs showing multiple gunshot wounds did
not cause undue tendency for jury to decide on emotional basis); Kreyssig v. State, 935 S.W.2d 886, 890 (Tex.
App.- Texarkana 1996, pet. ref'd) (holding that photographs of victim who had been submerged in river for
several days not “so appalling that a juror of normal sensitivity, after viewing them, would encounter difficulty in
rationally deciding the critical issues of the case").

Finally, appellant asserts that two photographs showing A.F.'s stomach, esophagus, small bowel, and liver, which
had been removed and photographed away from her body, are graphic and unfairly prejudicial.  That these
organs were cleaned and photographed separate from the body decreases their gruesomeness.  See Salazar v.
State, 38 S.W.3d 141, 151-52 (Tex. Crim. App. 2001).  Further, the medical examiner used these photographs to
demonstrate the injuries to A.F.'s organs - injuries that were not visible from the outside - and this evidence was
quite probative to explaining these injuries.  See Gallo, 239 S.W.3d at 763 (finding that photographs of cracked
ribs, underside of scalp, skull, and brain important to show injuries not visible on body's surface); Salazar, 38 S.W.
3d at 152 (concluding that photographs of damaged internal organs highly probative to demonstrate internal
injuries).

A trial court abuses its discretion in admitting photographs only if their probative value is small and the risk of
inflaming the jury is great.  See Ramirez, 815 S.W.2d at 647.  We cannot say the trial court abused its discretion
by concluding that the probative value of the photographs in assisting the medical examiner to explain the cause
of A.F.'s death and the repeated, long-term, severe physical abuse and malnutrition she suffered was not
substantially outweighed by any risk of unfairly prejudicing the jury.  See In re C.J.F., 134 S.W.3d at 356-57; see
also Rayford, 125 S.W.3d at 529-30; Salazar, 38 S.W.3d at 151-53.

For these reasons, we overrule appellant's fourth issue.

In the Interest of KY and KY (Tex.App.- Houston [14th Dist.] Nov. 6, 2008)(Yates)
(
termination of parental rights, chronic child abuse, death by murder of step child, admission of autopsy photos,
home state jurisdiction
, failure to join necessary party, waiver of error)
AFFIRMED: Opinion by
Justice Brock Yates  
Before Justices Brock Yates, Guzman and Brown
14-07-00866-CV   In the Interest of K.Y. and K.Y., Minor Children
Appeal from 300th District Court of Brazoria County
Trial Court Judge: Eric Andell

Standard of Review for admission of evidence

A trial judge’s decision to admit or exclude evidence is reviewed for abuse of discretion. Horizon/CMS Healthcare
Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000). A trial judge abuses his discretion when he makes a decision
without reference to any guiding rules or principles. Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). Unless
the trial judge’s erroneous evidentiary ruling probably caused the rendition of an improper judgment, we will not
reverse the ruling. Auld, 34 S.W.3d at 906.  


Defects in form of an affidavit must be objected to, and the opposing party must have the opportunity to amend.
Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.—Dallas 2004, pet. denied). The failure to obtain a ruling on an
objection to a defect in form waives the objection. Id. Accordingly, it was incumbent upon Pouncy-Pittman not only
to object, but also to have secured a ruling on her objection to preserve those complaints for appeal.  Pouncy-
Pittman failed to obtain a ruling on any of her objections to Pappadeaux’s summary judgment evidence. Thus, her
complaints regarding the alleged hearsay in Dr. Moore’s affidavit are overruled as not preserved. See Tex. R.
App. P. 38.1. We overrule Pouncy-Pittman’s third point of error.