No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT DALLAS, TEXAS. JERRELL GLENN DITTMAN, Appellant

Transcription

1 No CR ORAL ARGUMENT REQUESTED 5th Court of Appeals FILED: 12/9/11 14:00 Lisa Matz, Clerk IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT DALLAS, TEXAS JERRELL GLENN DITTMAN, Appellant v. THE STATE OF TEXAS ON APPEAL IN CAUSE NO. F V FROM THE 292 ND JUDICIAL DISTRICT COURT OF DALLAS COUNTY, TEXAS BEFORE THE HONORABLE LARRY MITCHELL, THE PRESIDING JUDGE OF THE COURT BRIEF OF APPELLANT LORI L. ORDIWAY State Bar No P.O. Box Dallas, Texas Telephone: (972) Facsimile: (972) ATTORNEY FOR APPELLANT

2 IDENTITY OF PARTIES AND COUNSEL Because this case is an appeal from a criminal conviction, the only parties are: (1) Appellant, Jerrell Glenn Dittman, by and through his attorney of record on appeal, Lori L. Ordiway, P.O. Box , Dallas, Texas 75379; (2) his trial attorneys, J.R. Cook, 9330 LBJ Freeway, #900, Dallas, Texas 75243, and Paul Johnson, 1825 Market Center, Dallas, Texas 75207; and (3) the State of Texas, by and through Craig Watkins, the Criminal District Attorney of Dallas County, and Brian Poe and Glen Fitzmartin, Assistant Criminal District Attorneys, Frank Crowley Courts Building, 133 North Riverfront Blvd., Dallas, Texas i

3 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL... i INDEX OF AUTHORITIES... iv STATEMENT OF THE CASE... 1 ISSUES PRESENTED STATEMENT OF FACTS SUMMARY OF THE ARGUMENTS ARGUMENTS AND AUTHORITIES... 5 APPELLANT S ISSUE NUMBER ONE... 5 THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE CONVICTION FOR FELONY MURDER BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED AN ACT CLEARLY DANGEROUS TO HUMAN LIFE IN FURTHERANCE OF THE COMMISSION OF THE OFFENSE OF FELONY DRIVING WHILE INTOXICATED. APPELLANT S ISSUE NUMBER TWO THE TRIAL COURT ERRED IN DENYING THE MOTION TO QUASH THE INDICTMENT WHICH DID NOT SPECIFICALLY ALLEGE THE TWO PRIOR MISDEMEANOR DRIVING WHILE INTOXICATED CONVICTIONS THAT WOULD MAKE DRIVING WHILE INTOXICATED THE FELONY OFFENSE FOR THIS FELONY MURDER CHARGE. (RR3: 13, 15). ii

4 TABLE OF CONTENTS (Continued) APPELLANT S ISSUE NUMBER THREE THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE AUTOPSY PHOTOGRAPHS (S/E NOS. 63 & 64) THAT WERE MORE UNFAIRLY PREJUDICIAL THAN PROBATIVE. (RR4: 191). PRAYER FOR RELIEF CERTIFICATE OF SERVICE iii

5 INDEX OF AUTHORITIES CASES: Adams v. State 707 S.W.2d 900 (Tex. Crim. App. 1986) Alami v. State 333 S.W.3d 881 (Tex. App. Fort Worth 2011, no pet.)... 6 Bigley v. State 865 S.W.2d 26 (Tex. Crim. App. 1993) Bigon v. State 252 S.W.3d 360 (Tex. Crim. App. 2008)... 7, 17 Brooks v. State 990 S.W.2d 278 (Tex. Crim. App. 1999) Brooks v. State 323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality op.)... 5 Burks v. United States 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) Casey v. State 215 S.W.3d 870 (Tex. Crim. App. 2007) Clayton v. State 235 S.W.3d 772 (Tex. Crim. App. 2007) Collier v. State 999 S.W.2d 779 (Tex. Crim. App. 1999) Erazo v. State 144 S.W.3d 487 (Tex. Crim. App. 2004) Ex parte McCain 67 S.W.3d 204, 210 (Tex. Crim. App. 2002) iv

6 INDEX OF AUTHORITIES (Continued) Ex parte Winton 549 S.W.2d 751 (Tex. Crim. App. 1977) Farrakhan v. State 247 S.W.3d 720 (Tex. Crim. App. 2008) Gallemore v. State 312 S.W.3d 156 (Tex. App. Fort Worth 2010, no pet.)... 22, 23, 25, 26 Gant v. State 606 S.W.2d 867 (Tex. Crim. App. [Panel Op. 1980) Geesa v. State 820 S.W.2d 154 (Tex. Crim. App. 1991)... 5 Geter v. State 779 S.W.2d 403 (Tex. Crim. App. 1989) Gigliobianco v. State 210 S.W.3d 637 (Tex. Crim. App. 2006)... 28, 29, 32, 33, 34 Guzman v. State 955 S.W.2d 85 (Tex. Crim. App. 1997) Haynes v. State 273 S.W.3d 183 (Tex. Crim. App. 2008) Hollen v. State 117 S.W.3d 798, 801 (Tex. Crim. App. 2003)...22, 25 Hooper v. State 214 S.W.3d 9 (Tex. Crim. App. 2007) Jackson v. Virginia 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 570 (1974)... 5, 15, 17, 18 v

7 INDEX OF AUTHORITIES (Continued) James v. State 47 S.W.3d 710 (Tex. App. Texarkana 2001, no pet.) Johnson v. State 967 S.W.2d 410 (Tex. Crim. App. 1998) King v. State 953 S.W.2d 266 (Tex. Crim. App. 1997)...35, 36 Kotteakos v. United States 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed (1946) Lomax v. State 233 S.W.3d 302 (Tex. Crim. App. 2007)...6, 19, 25 Long v. State 823 S.W.2d 259 (Tex. Crim. App. 1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3042, 120 L. Ed. 2d 910 (1992) Manning v. State 114 S.W.3d 922 (Tex. Crim. App. 2003)...33, 34 McNac v. State 215 S.W.3d 420 (Tex. Crim. App. 2007) Miles v. State No. PD , 2011 Tex. Crim. App. LEXIS 1665 (Tex. Crim. App. Dec. 7, 2011) (not yet reported) Montgomery v. State 810 S.W.2d 372 (Tex. Crim. App. 1990) (op. on reh g)... 28, 32, 33 Murphy v. State 665 S.W.2d 116 (Tex. Crim. App. 1983)...21, 24 Old Chief v. United States 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) vi

8 INDEX OF AUTHORITIES (Continued) Rachal v. State 917 S.W.2d 799 (Tex. Crim. App. 1996) Reese v. State 33 S.W.3d 238 (Tex. Crim. App. 2000) Sanders v. State 119 S.W.3d 818 (Tex. Crim. App. 2003) Smith v. State 309 S.W.3d 10 (Tex. Crim. App. 2010) Solomon v. State 49 S.W.3d 356 (Tex. Crim. App. 2001) State v. Christensen No CR, 2011 Tex. App. LEXIS 4282 (Tex. App. Dallas June 6, 2011, pet. ref d) (not designated for publication)... 21, 23, 25 State v. Duke 59 S.W.3d 789 (Tex. App. Fort Worth 2001, pet. ref d) (op. on reh g) State v. Mechler 153 S.W.3d 435 (Tex. Crim. App. 2005)...30, 34 State v. Moff 154 S.W.3d 599 (Tex. Crim. App. 2004) Strickland v. State 193 S.W.3d 662 (Tex. App. Fort Worth 2006, pet. ref d) Tamez v. State 11 S.W.3d 198 (Tex. Crim. App. 2000)...22, 25 vii

9 INDEX OF AUTHORITIES (Continued) Tolbert v. State 306 S.W.3d 776 (Tex. Crim. App. 2010) Turner v. State 636 S.W.2d 189 (Tex. Crim. App. 1980) Williams v. State 301 S.W.3d 675 (Tex. Crim. App. 2009), cert. denied, 130 S. Ct. 3411, 177 L. Ed. 2d 326 (2010) Wyatt v. State 23 S.W.3d 18 (Tex. Crim. App. 2000) Yandell v. State 46 S.W.3d 357 (Tex. App. Austin 2001, pet. ref d)...21, 24 TEXAS CODE OF CRIMINAL PROCEDURE: TEX. CODE CRIM. PROC. art TEX. CODE CRIM. PROC. art TEX. CODE CRIM. PROC. art (b) TEXAS PENAL CODE: TEX. PEN. CODE 19.02(b)(3)... 1, 6, 15 TEX. PEN. CODE 19.02(c)... 6 TEX. PEN. CODE 49.01(2)(B)... 6 TEX. PEN. CODE TEX. PEN. CODE 49.04(a)... 6 TEX. PEN. CODE 49.04(b)... 6 viii

10 INDEX OF AUTHORITIES (Continued) TEX. PEN. CODE 49.04(c)... 6 TEX. PEN. CODE 49.08(a)... 7, 17 TEX. PEN. CODE 49.08(b)... 7 TEX. PEN. CODE 49.09(b)(2)... 6 TEXAS RULES OF APPELLATE PROCEDURE: TEX. R. APP. P. 44.2(b)... 26, 35, 36 TEXAS RULES OF EVIDENCE: TEX. R. EVID , 29, 30, 33, 34 UNITED STATES CONSTITUTION: U.S. CONST. amend. XIV ix

11 NO CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT DALLAS, TEXAS JERRELL GLENN DITTMAN, Appellant v. THE STATE OF TEXAS TO THE HONORABLE COURT OF APPEALS: Appellant, Jerrell Glenn Dittman, respectfully submits this brief in the above-styled and numbered cause. This is an appeal of a conviction for the offense of murder from the 292 nd Judicial District Court of Dallas County, Texas, the Honorable Larry Mitchell, Presiding Judge. STATEMENT OF THE CASE In Cause Number F V (Dallas County), Appellant was charged by indictment on May 27, 2010, for the offense of murder. (CR: 5). See TEX. PEN. CODE 19.02(b)(3). The offense was alleged to have been committed on or about April 9, (CR: 5). The State also alleged that a deadly weapon was used during the commission of the offense. (CR: 5). 1

12 On February 22, 2011, the trial court conducted voir dire, and a jury was selected. (RR3: ). On February 23, 2011, the jury was sworn, Appellant entered a plea of not guilty, and the jury trial commenced. (RR4: 12-13, et. seq.). On February 24, 2011, the jury found Appellant guilty of murder as charged in the indictment. (CR: 52; RR5: 30-31). The jury also found that Appellant used a deadly weapon during the commission of the offense. (CR: 53; RR5: 30-31). The trial court conducted the punishment hearing on the same date [February 24, 2011]. Evidence and testimony were presented, and the trial court assessed punishment confinement for 35 years in TDCJ-ID. (CR: 55; RR5: 137). Appellant was also sentenced on that date [February 24, 2011]. (CR: 55; RR5: ). In addition, the trial court entered an affirmative finding in the judgment that a deadly weapon was used during the commission of the offense. (CR: 55). Written notice of appeal was timely filed on February 25, (CR: 58). ISSUES PRESENTED APPELLANT S ISSUE NUMBER ONE THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE CONVICTION FOR FELONY MURDER BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED AN ACT CLEARLY DANGEROUS TO HUMAN LIFE IN FURTHERANCE OF THE COMMISSION OF THE OFFENSE OF FELONY DRIVING WHILE INTOXICATED. 2

13 APPELLANT S ISSUE NUMBER TWO THE TRIAL COURT ERRED IN DENYING THE MOTION TO QUASH THE INDICTMENT WHICH DID NOT SPECIFICALLY ALLEGE THE TWO PRIOR MISDEMEANOR DRIVING WHILE INTOXICATED CONVICTIONS THAT WOULD MAKE DRIVING WHILE INTOXICATED THE FELONY OFFENSE FOR THIS FELONY MURDER CHARGE. (RR3: 13, 15). APPELLANT S ISSUE NUMBER THREE THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE AUTOPSY PHOTOGRAPHS (S/E NOS. 63 & 64) THAT WERE MORE UNFAIRLY PREJUDICIAL THAN PROBATIVE. (RR4: 191). STATEMENT OF FACTS On the night of April 9, 2009, Willie Kind and his wife Fannie, the complainant, were driving from Henderson to Dallas. (RR4: 16-19). While Kind drove their pick-up truck, his wife laid her seat back and was asleep. (RR4: 19). At about 10:30 p.m., something hit their car from behind. (RR4: 19-20). This caused their truck to accelerate at a high rate of speed, then it rolled over and ultimately came to rest, and apparently Fannie Kind was ejected through the rear of the truck. (RR4: 20, 76, 87-88). Willie Kind got out of his truck and crawled to where his wife lay deceased beside the road. (RR4: 20-21). Subsequently, it was learned in the investigation that Appellant, who was intoxicated, drove the car that struck the Kinds truck. (RR4: 72-73, ). At 3

14 trial, the defense did not dispute that Appellant was driving while intoxicated or that he accidentally struck the Kinds truck. (RR4: 150, 154, ). SUMMARY OF THE ARGUMENTS Appellant would first urge that the evidence is legally insufficient to support the conviction for felony murder because the State failed to prove beyond a reasonable doubt that Appellant committed an act clearly dangerous to human life in furtherance of the felony driving while intoxicated offense. Instead, the State proved, at most, that an accident occurred when Appellant was driving while intoxicated. Next, the trial court erred in denying Appellant s motion to quash the indictment. Although the law allows a felony driving while intoxicated offense to be the underlying felony for felony murder, in order to make such an offense a felony, the prior misdemeanor driving while intoxicated offenses must be specifically pleaded in the indictment. Absent such pleading, jurisdiction over this offense was not conferred on the trial court, and the judgment of conviction is void. Finally, the trial court abused its discretion in admitting into evidence highly prejudicial autopsy photographs (S/E Nos. 63 & 64) that showed the naked body of the complainant. The jury relied upon emotion created by such photographs in 4

15 rendering its verdict at guilt-innocence, and therefore, reversible error was committed. ARGUMENTS AND AUTHORITIES APPELLANT S ISSUE NUMBER ONE THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE CONVICTION FOR FELONY MURDER BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED AN ACT CLEARLY DANGEROUS TO HUMAN LIFE IN FURTHERANCE OF THE COMMISSION OF THE OFFENSE OF FELONY DRIVING WHILE INTOXICATED. Appellant would first urge that the evidence is legally insufficient to support the conviction for felony murder because the State failed to prove beyond a reasonable doubt that Appellant committed an act clearly dangerous to human life in the course of and in furtherance of the commission of the felony driving while intoxicated offense. Of course, in considering the legal sufficiency of the evidence, the standard of review is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 570 (1974); Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality op.); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). 5

16 APPLICABLE LAW A person commits the Class B misdemeanor offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. Alami v. State, 333 S.W.3d 881, 885 (Tex. App. Fort Worth 2011, no pet.), quoting TEX. PEN. CODE 49.04(a); see TEX. PEN. CODE 49.04(b)&(c). Intoxicated is defined in part as having an alcohol concentration of 0.08 or more. Alami, 333 S.W.3d at , citing TEX. PEN. CODE 49.01(2)(B). An offense under section is a third-degree felony, however, if the person has previously been convicted two times of any offense relating to the operating of a motor vehicle while intoxicated. Alami, 333 S.W.3d at 886, citing TEX. PEN. CODE 49.09(b)(2). A person commits the first-degree felony offense of murder if he commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in the immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual. Alami, 333 S.W.3d at 886, quoting TEX. PEN. CODE 19.02(b)(3); see TEX. PEN. CODE 19.02(c). Further, a felony DWI offense may serve as the underlying felony in a felony-murder prosecution. Lomax v. State, 233 S.W.3d 302, 305 (Tex. Crim. App. 2007); Alami, 333 S.W.3d at

17 Thus, in Bigon v. State, 252 S.W.3d 360, 366 (Tex. Crim. App. 2008), the Texas Court of Criminal Appeals held that driv[ing] a heavily loaded Jeep towing a loaded trailer across the center stripe of a roadway into the oncoming lane of travel was an act clearly dangerous to human life in furtherance of felony DWI. Therefore, the evidence in that case was legally sufficient to support Bigon s felony murder conviction. Id. Finally, a person commits the second-degree felony offense of intoxication manslaughter if the person operates a motor vehicle in a public place and is intoxicated and by reason of that intoxication causes the death of another by accident or mistake. TEX. PEN. CODE 49.08(a)&(b). In order to address this sufficiency issue, a summary of the facts is set forth, as follows: FACT STATEMENT A. TESTIMONY OF WILLIE KIND Willie Kind testified that, on the night of April 9, 2009, he and his wife Fannie were driving from Henderson to Dallas to pick up his mother-in-law for Easter. (RR4: 16-19). Kind drove their pickup truck while his wife laid her seat back and was asleep. (RR4: 19). At about 10:30 p.m., when they were on I-20 in Mesquite about to approach exit 483 (Lawson Road), Kind reached to turn on his radio, and something hit their car from behind. (RR4: 19-20). This caused their 7

18 truck to accelerate at a high rate of speed, then it started tumbling and flipping, and then the truck came to rest. (RR4: 20). Once the truck stopped, Kind s wife was no longer in it. (RR4: 20). Although Kind was pinned in the truck, he tore his way out, and, because he could not walk, he crawled to where his wife lay beside the road. (RR4: 20-21). Kind tried to lift his wife, but he could not, and soon, an ambulance and police arrived. (RR4: 21-22). B. TESTIMONY OF THE TRUCK DRIVER WITNESS Curtis Benge testified that he is a truck driver and was driving westbound on I-20 in the area of exit 483 in an 18-wheeler truck on the night of April 9, 2009, at about 10:30 p.m. (RR4: 28-29). Benge said that he saw a car behind him traveling too fast, which he estimated between 75 and 85 miles per hour, so he decided to exit at 483. (RR4: 30, 32, 38). As he exited he saw the car swerve out of his sight, making a sudden lane chance, and then heard a loud noise. (RR4: 30). Benge stopped, called 911, and got out of his truck. (RR4: 33). He saw that the engine of the speeding car was on fire, so he got his fire extinguisher out of his truck. (RR4: 33). C. TESTIMONY OF THE WITNESS WHO CAME ON THE SCENE Brady Bishop testified that he was driving in the area of the accident, had previously been a certified peace officer and was trained in first aid, and saw the car on fire. (RR4: 47-48). Bishop called 911, and then he got out of his vehicle 8

19 and went first to where Kind and the complainant were on the road. (RR4: 49). Bishop checked and could tell that the complainant was deceased, and then he went over to the other vehicle, where he put the fire out, helped break open the driver s door window, and saw the unconscious driver still inside the car. (RR4: 50). Bishop helped keep the driver s spine stable until the ambulance arrived and the paramedics took over. (RR4: 51-52). D. TESTIMONY OF THE PARAMEDIC Tim Hockaday, a paramedic with the Mesquite Fire Department, testified that he responded to the scene of this accident. (RR4: 55-56). He stated that he transported the driver of the car to Baylor hospital and that he smelled a little hint of alcohol on the driver, which he translated on his report as [s]mells of ETOH, meaning [l]ike drinking alcohol. (RR4: 57-58, 61). E. TESTIMONY OF INVESTIGATING OFFICER MCMILLEN Mesquite Police Officer Greg McMillen testified that he arrived on the scene of this accident about 15 to 20 minutes after it occurred and, along with Officer John Bohmer, conducted an investigation. (RR4: 64, 67-70). Officer McMillen prepared an accident report based on the investigation, and Officer Bohmer drew a diagram of the scene which was attached as the last page of the accident report. (RR4: 69, 71). Officer McMillen established that Appellant was the driver of the car that struck the Kinds truck. (RR4: 72-73). From the officers investigation, 9

20 they determined that, after the Kinds pick-up truck was struck, it rolled over. (RR4: 76). During his investigation of the scene and vehicles involved, Officer McMillen did not find any open containers or alcohol inside Appellant s car. (RR4: 85). Officer McMillen inferred from the evidence, although he did not know, that the deceased was ejected through the rear of the truck. (RR4: 87-88). In his report, he indicated that it was unknown whether the Kinds were wearing seat belts at the time of the accident. (RR4: ). Further, Officer McMillen determined that Appellant was driving at a high rate of speed and made a sudden, unsafe lane change, which Officer McMillen considered to be an act clearly dangerous to human life. (RR4: 92-94). In his written report, however, rather than writing that Appellant drove at a high rate of speed, he wrote that there was a failure to control speed. (RR4: ). Office McMillen opined that Appellant s car was a motor vehicle that, based on the manner in which it was used, was capable of causing death or serious bodily injury and that Appellant was the cause of the accident. (RR4: 95). Officer McMillen based this opinion on what the witnesses had said about Appellant s driving, the damage to the vehicle, and what the officers later learned at the hospital to which Appellant was transported. (RR4: 95-96). Officer McMillen agreed that individuals can cause accidents by speeding and making unsafe lane changes, and alcohol is not a factor. (RR4: 111). He also 10

21 testified that, if one speeds or drives at an unsafe speed, makes an unsafe lane change, fails to keep a proper lookout, and collides with a motor vehicle, that is committing an act clearly dangerous to human life. (RR4: 116). F. TESTIMONY OF INVESTIGATING OFFICER BOHMER Next, Mesquite Police Officer John Paul Bohmer testified that, as part of his investigation of this accident, he went to Baylor Medical Center, where both Willie Kind and Appellant had been transported. (RR4: 118, ). Officer Bohmer stated that Appellant was unconscious and receiving medical attention. (RR4: 121). Officer Bohmer said that his whole purpose of seeing Appellant at the hospital was to perform a mandatory blood draw, for which he read Appellant his warnings, even though Appellant was not conscious. (RR4: 122, 125). Then, Officer Bohmer asked the nurse to take a blood specimen from Appellant, which the nurse did and then gave to Officer Bohmer to take for analysis. (RR4: ). On cross-examination, Officer Bohmer admitted that he could not tell the jury that the accident was not caused because Appellant s vision was impaired by the large 18-wheeler truck in front of him and he changed lanes not knowing that the pickup truck was there, which caused the collision. (RR4: ). Officer Bohmer also admitted that he could not say that Appellant s view was not obstructed and that Appellant was not swerving to avoid the 18-wheeler who was tapping his brakes as it was pulling onto the exit ramp. (RR4: 151). Officer 11

22 Bohmer agreed that, if it were not for the intoxication in this case, Appellant may never have been charged at all. (RR4: 152). Officer Bohmer further admitted that the event in this case was an accident and that, if you took away the intoxication, the evidence in this case involved only an accident. (RR4: 150, 154). Officer Bohmer agreed on several occasions that, regardless of how many prior DWI convictions a suspect may have, the police department always charges a case with a death and intoxicated driving as manslaughter and never as felony murder. (RR4: , , , ). Finally, Officer Bohmer said that he had never before seen the DA s office change a charge of intoxication manslaughter to felony murder and did not become aware of it in this case until he met with the DA. (RR4: , ). G. STIPULATIONS Several stipulations were offered to the jury, including that: (1) Appellant s blood was properly drawn at Baylor hospital by a registered nurse, and Officer Bohmer transferred the blood to the Mesquite Police Department which then properly transferred it to the Southwestern Institute of Forensic Sciences (SWIFS) which then analyzed the blood and found a blood alcohol content of 0.16, which was twice the legal limit of intoxication at the time of accident. (RR4: ); and (2) Appellant had two prior convictions for driving while intoxicated in Hunt County and in Rains County. (RR4: ). 12

23 H. TESTIMONY OF THE MEDICAL EXAMINER Finally, Dr. Keith Pinckard, a medical examiner at SWIFS, testified that he performed the autopsy on the deceased in this case. (RR4: 186, 189). Dr. Pinckard stated that, based on the injuries the complainant had, there was no chance that she would have been able to survive and that the manner of death was an accident. (RR4: ). I. DEFENSE TESTIMONY Appellant exercised his Constitutional right not to testify. (RR5: 6). ADDITIONAL PERTINENT FACTS In the jury charge, the trial court authorized the jury to find Appellant guilty of felony murder as follows: Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that: 1. On or about April 9, 2009; 2. In Dallas County, Texas; 3. The defendant, Jerrell Glenn Dittman; 4. Did then and there commit or attempt to commit a felony, other than manslaughter, to-wit: Driving While Intoxicated; 5. And in the course of and in furtherance of the commission or attempt or in immediate flight from the commission or attempt of said felony; 6. He committed or attempted to commit an act clearly dangerous to human life, to-wit; A. Operate a motor vehicle at a speed unsafe for the surrounding circumstances, or; B. Make an unsafe lane change, or; C. Failed to keep a proper lookout, or; D. Colliding said motor vehicle into and against a motor vehicle occupied by Fannie Kind; 13

24 7. And did thereby cause the death of an individual, Fannie Kind; then you will find the defendant, Jerrell Glenn Dittman, guilty of the offense of Murder as charged in the indictment. If you are unable to agree that the defendant is guilty of the offense of Murder, then you will next consider whether the defendant is guilty of the lesser included offense of Intoxication Manslaughter. (CR: 48) (emphasis added). The trial court then instructed the jury that, if they were unable to agree that Appellant was guilty of the offense of murder, they should next consider whether he was guilty of intoxication manslaughter, as follows: Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that: 1. On or about April 9, 2009; 2. In Dallas County, Texas; 3. The defendant, Jerrell Glenn Dittman; 4. Did operate a motor vehicle; 5. In a public place, and; 6. That the defendant was intoxicated; 7. And that by reason of that intoxication he caused the death of Fannie Kind; 8. By accident or mistake; then you will find the defendant guilty of the offense of Intoxication Manslaughter. (CR: 48-49). Next, the trial court instructed the jury that, if they believed beyond a reasonable doubt that Appellant was guilty of an offense, but were unsure of whether he was guilty of murder or intoxication manslaughter, they should decide in favor of the defendant and find him guilty of the included offense 14

25 of Intoxication Manslaughter. (CR: 49). Finally, the trial court instructed the jurors, If you do not so find and believe from the evidence beyond a reasonable doubt or if you have a reasonable doubt thereof, that the defendant is guilty of Murder or Intoxication Manslaughter, then you will say by your verdict, Not Guilty. (CR: 49). LAW APPLIED TO FACTS Again, in considering the legal sufficiency of the evidence, the standard of review is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 570 (1974). In this case, the State had the burden of proving that Appellant committed the felony offense of driving while intoxicated and that, in the course of and in furtherance of the commission or attempt or in immediate flight from the commission or attempt of said felony, he committed an act clearly dangerous to human life. See TEX. PEN. CODE 19.02(b)(3). In the present case, the State failed to prove such allegations. A review of the trial evidence and testimony reveals the following: 1. Appellant was driving while intoxicated, he had two prior convictions for driving while intoxicated (thus making the underlying offense of driving while intoxicated a felony), and Fannie Kind lost her life. (RR4: 50, 72-73, ). 15

26 2. Although Benge testified to seeing a car behind him traveling too fast (RR4: 30), and Officer McMillen determined that Appellant was driving at a high rate of speed and made a sudden, unsafe lane change (RR4: 92-94), Officer McMillen stated in his written report that there was a failure to control speed. (RR4: ). 3. Further, Officer Bohmer admitted that he could not tell the jury that the accident was not caused because Appellant s vision was impaired by Benge s 18- wheeler truck in front of Appellant who changed lanes not knowing that the Kinds pickup truck was there. (RR4: ). 4. Officer Bohmer also admitted that he could not say that Appellant s view was not obstructed and that Appellant was not swerving to avoid the 18-wheeler who was tapping his brakes as it was pulling onto the exit ramp. (RR4: 151). 5. Moreover, Officer Bohmer agreed that, if it were not for the intoxication in this case, Appellant may never have been charged at all. (RR4: 152). 6. Finally, Officer Bohmer further admitted that the event in this case was an accident and that, if you took away the intoxication, the evidence in this case involved only an accident. (RR4: 150, 154). CONCLUSION The evidence and testimony in this case is legally insufficient to prove beyond a reasonable doubt that Appellant committed an act clearly dangerous to 16

27 human life in furtherance of the commission of felony driving while intoxicated. In Bigon, the Court held that the fact-finder could rationally have found beyond a reasonable doubt that driving into the other lane was an act committed by Bigon clearly dangerous to human life in furtherance of felony DWI. Bigon, 252 S.W.3d at 366. In this case, by contrast, the only evidence concerning Appellant s driving was disputed, at best. Regardless, unlike Bigon, the evidence does not show an act clearly dangerous to human life was committed in furtherance of the commission of the felony driving while intoxicated. The evidence shows, at most, that Appellant drove while intoxicated and that, by reason of that intoxication, he caused the death of Fannie Kind by accident or mistake. Thus, the evidence supported guilt only of intoxication manslaughter. See TEX. PEN. CODE 49.08(a). In Sanders v. State, 119 S.W.3d 818 (Tex. Crim. App. 2003), the Texas Court of Criminal Appeals said: The relevant appellate inquiry for assessing legal sufficiency is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 820. The Court, in Sanders, explained: This standard is meant to give full play to the [jury s] responsibility fairly to draw reasonable inferences from basic facts to ultimate facts. Id. at 820, citing Jackson v. Virginia, supra, at 99 S.Ct Also, in Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007), the Court stated: Therefore, in 17

28 analyzing legal sufficiency, we determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Id. at 778, citing Hooper v. State, 214 S.W.3d 9, (Tex. Crim. App. 2007). In the present case, the record reveals that the jury unfairly and irrationally inferred that Appellant committed an act clearly dangerous to human life in furtherance of the commission of the felony driving while intoxicated. The evidence and testimony falls short and is legally insufficient to meet the minimum Due Process requirements of the Fourteenth Amendment to the United States Constitution. U.S. CONST. amend. XIV. See Jackson v. Virginia, supra. Thus, the evidence is legally insufficient to support the conviction for murder, and a judgment of acquittal must be entered. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Upon a holding of legal insufficiency of the evidence to support the conviction, the State may argue that, because the jury was instructed on the included offense of intoxication manslaughter (CR: 49), this Court may reform the judgment to reflect a conviction for such offense and remand for a new trial on punishment under article 44.29(b) of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. art (b). See Collier v. State, 999 S.W.2d 779, (Tex. Crim. App. 1999); Bigley v. State, 865 S.W.2d 26, (Tex. Crim. App. 18

29 1993). In Miles v. State, No. PD , 2011 Tex. Crim. App. LEXIS 1665 (Tex. Crim. App. Dec. 7, 2011) (not yet reported), the Court recently noted: An appellate court, after finding evidence of the particular offense to be insufficient, may reform a trial court s judgment to reflect a conviction for a lesser-included offense, if such offense is supported by the evidence and was submitted to the jury or was requested by the party requesting reformation of the judgment. See Tolbert v. State, 306 S.W.3d 776, 782 n. 12 (Tex. Crim. App. 2010); Haynes v. State, 273 S.W.3d 183, 184 (Tex. Crim. App. 2008). Id. at *7-8 n. 13 (emphasis added). Nevertheless, Appellant would urge that intoxication manslaughter is not a lesser-included or even an included offense of felony murder. In Strickland v. State, 193 S.W.3d 662 (Tex. App. Fort Worth 2006, pet. ref d), the Court stated: Felony murder and intoxication manslaughter require different elements of proof. Felony murder requires the commission of an underlying felony, which intoxication manslaughter does not--a person can be convicted of intoxication manslaughter even if he was committing misdemeanor DWI at the time his actions caused another s death. Felony murder also requires that the defendant have committed an act clearly dangerous to human life, yet the intoxication manslaughter statute applies when the defendant causes a death by accident or mistake. Furthermore, intoxication manslaughter requires proof that the defendant was intoxicated at the time of the offense, which is not contemplated by the felony murder statute except when, as here, the underlying felony happens to involve intoxication. Id. at 667 (citations omitted). See also TEX. CODE CRIM. PROC. art (defining what constitutes a lesser-included offense); cf. Lomax, 233 S.W.3d at 311 (holding 19

30 that felony driving while intoxicated is not a lesser-included offense of intoxication manslaughter because proof of the two prior DWI convictions are not facts required, or included within the proof necessary, to establish intoxication manslaughter, and proof of injury or risk of injury also is not necessary to establish felony driving while intoxicated). Accordingly, Appellant would urge that, because the two offenses are entirely different offenses and intoxication manslaughter is not included within felony murder, the judgment cannot be reformed to reflect a conviction for intoxication manslaughter, and a judgment of acquittal must be entered. APPELLANT S ISSUE NUMBER TWO THE TRIAL COURT ERRED IN DENYING THE MOTION TO QUASH THE INDICTMENT WHICH DID NOT SPECIFICALLY ALLEGE THE TWO PRIOR MISDEMEANOR DRIVING WHILE INTOXICATED CONVICTIONS THAT WOULD MAKE DRIVING WHILE INTOXICATED THE FELONY OFFENSE FOR THIS FELONY MURDER CHARGE. (RR3: 13, 15). Appellant next would urge that error was committed when the trial court denied his motion to quash the indictment because the State failed to specifically allege the two prior misdemeanor driving while intoxicated convictions that would make the felony offense for this felony murder charge. This error was harmful to Appellant. 20

31 STANDARD OF REVIEW In State v. Christensen, No CR, 2011 Tex. App. LEXIS 4282 (Tex. App. Dallas June 6, 2011, pet. ref d) (not designated for publication), this Court aptly stated the standard of review of the sufficiency of an indictment: Id. at *7-8. The sufficiency of an indictment is a question of law. Smith v. State, 309 S.W.3d 10, 13 (Tex. Crim. App. 2010). When the resolution of a question of law does not turn on an evaluation of the credibility and demeanor of a witness, the trial court is in no better position than the appellate court to make the determination, and the appellate court conducts a de novo review of the trial court s decision. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) (applying standard of review set out in Guzman v. State, 955 S.W.2d 85, (Tex. Crim. App. 1997) to motion to quash an indictment); see also Smith, 309 S.W.3d at APPLICABLE LAW The law is well settled that an indictment or information must allege each and every element of the offense. See TEX. CODE CRIM. PROC. art (providing, Everything should be stated in an indictment which is necessary to be proved. ); Ex parte Winton, 549 S.W.2d 751, 752 (Tex. Crim. App. 1977). In Murphy v. State, 665 S.W.2d 116, , (Tex. Crim. App. 1983), the Court held that, in a felony murder indictment, the State was not required to correctly allege the elements of the underlying felony of arson or allege the culpable mental state. Further, in Yandell v. State, 46 S.W.3d 357, 362 (Tex. App. Austin 2001, pet. ref d), the Court held that, just as in a capital murder 21

32 indictment, the State does not have to allege the elements of the underlying felony in a felony murder indictment. On the other hand, in Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000), in analyzing the necessity of proving the previous misdemeanor driving while intoxicated convictions in an indictment for felony driving while intoxicated, the Court stated as follows:... This Court [has] held that when prior convictions are used to elevate what would otherwise be a misdemeanor offense to the level of a felony, they must be pled in the indictment for the trial court to gain jurisdiction. See Turner v. State, 636 S.W.2d 189, 196 (Tex. Crim. App. 1980); Gant v. State, 606 S.W.2d 867, 871 (Tex. Crim. App. [Panel Op. 1980). [J]urisdiction vests when the pleadings are submitted to the trial court and contain the requisite number of previous convictions. Id. at 201 (emphasis added). See also Hollen v. State, 117 S.W.3d 798, 801 (Tex. Crim. App. 2003) (noting that, in a felony driving while intoxicated prosecution, the two prior driving while intoxicated convictions are necessary to confer jurisdiction on the district court). Furthermore, in Gallemore v. State, 312 S.W.3d 156, 161 (Tex. App. Fort Worth 2010, no pet.), the Court relied on the language in Tamez in holding that, because the driving while intoxicated indictment alleged only one prior driving while intoxicated conviction, not the requisite two, jurisdiction over the case never vested in the district court). That is, the 22

33 face of [Gallemore s] indictment did not allege a felony, and the district court never acquired jurisdiction over the proceeding. Id. Finally, in State v. Christensen, 2011 Tex. App. LEXIS 4282, this Court also recently held that [p]rior convictions are essential elements of a felony DWI under penal code section 49.09(b), and must be pleaded and proven at the guilt-innocence phase to support a felony conviction. Id. at *5, quoting State v. Duke, 59 S.W.3d 789, 790 (Tex. App. Fort Worth 2001, pet. ref d) (op. on reh g). [Emphasis added.] (CR: 5). PERTINENT FACTS The indictment in the instant case read, in pertinent part, that Appellant did: then and there commit a felony, to-wit: driving while intoxicated, and after having been previously convicted two times of the offense of driving while intoxicated and in the course of and in furtherance of the commission or in immediate flight from the commission of said felony, he committed and attempted to commit an act clearly dangerous to human life, to-wit: operate a motor vehicle at a speed unsafe for the surrounding circumstances and by making an unsafe lane change and by failing to keep a proper lookout and by colliding said motor vehicle into and against a motor vehicle occupied by Fannie Kind and did thereby cause the death of an individual, Fannie Kind.... Prior to trial, Appellant filed a written motion to quash the indictment on the basis that it failed to apprise [Appellant] of the legally required information as to the alleged two prior convictions. (CR: 23). In the written motion, Appellant 23

34 urged that the indictment s failure to furnish this information precluded him from being able to adequately prepare for trial. (CR: 23). At a hearing just before voir dire commenced, Appellant reurged this same argument and urged, in particular, that the State must allege two specific prior driving while intoxicated convictions, to elevate this driving while intoxicated offense to a felony offense. (RR3: 4-5, 9-10, 12). The State responded at the hearing, essentially by relying on the Yandell and Murphy cases previously found by the trial court. (RR3: 12-13). After additional arguments, the trial court denied Appellant s motion to quash and stated: I m going to deny the objection to a lack of notice because I think the indictment statutorily alleges everything that it is required to allege. (RR3: 13, 15, 18). LAW APPLIED TO FACTS Appellant would urge that, in the present case, the State should have been held to specifically plead the two prior driving while intoxicated convictions that elevated this driving while intoxicated offense to a felony and that the trial court erred in summarily denying the motion to quash in reliance on the reasoning of the Courts in Yandell and Murphy. Although every element of the underlying felony in a felony murder may not be required to be pleaded, when the underlying felony is a felony driving while intoxicated offense, the State must allege the two prior misdemeanor driving while intoxicated offenses that make the one pleaded a felony. This comports with the holdings of the Texas Court of Criminal Appeals in 24

35 Tamez and in Hollen, as well as this Court s recent holding in Christensen. As this Court held in Christensen, the prior convictions are essential elements of a felony driving while intoxicated offense. Christensen, 2011 Tex. App. LEXIS 4282, at *5. Moreover, although the Court in Lomax held that a felony driving while intoxicated offense may serve as the underlying felony for a felony murder, the sufficiency of the allegations in the indictment was not an issue before the Court in that case. See Lomax, 233 S.W.3d at 304 n. 5 & Accordingly, Appellant urges that the trial court erred in denying his motion to quash on these grounds. HARM ANALYSIS Appellant would first urge that no harm analysis comes into play because, in the absence of specifically pleading the requisite two prior driving while intoxicated convictions, the trial court lacked jurisdiction over this case. See Gallemore, 312 S.W.3d 156, 161 (Tex. App. Fort Worth 2010, no pet.) (again, holding that, because the driving while intoxicated indictment alleged only one prior driving while intoxicated conviction, not the requisite two, jurisdiction over the case never vested in the district court). Thus, as in Gallemore, because the face of the indictment did not allege a felony offense for this felony murder charge, the trial court never acquired jurisdiction over the proceeding. Id. See also Hollen, 117 S.W.3d at 801; Tamez, 11 S.W.3d at 201. Accordingly, because the trial court 25

36 did not have jurisdiction over the case, the judgment of conviction is void, and it must be set aside. See Gallemore, 312 S.W.3d at 162, citing Ex parte McCain, 67 S.W.3d 204, 210 (Tex. Crim. App. 2002) (defining void convictions as those in which the trial court lacked jurisdiction over the person or subject matter or in which the trial judge lacked qualification to act in any manner ). Only in the alternative, if this Court were to conclude that the trial court did have jurisdiction, Appellant would urge that the denial of his motion to quash was harmful error. In a harm analysis after finding error in the denial of a motion to quash, this Court looks to whether, in the context of the case, failure to give proper notice in an indictment had an impact on the defendant s ability to prepare a defense and, if so, how great an impact it was. Geter v. State, 779 S.W.2d 403, 407 (Tex. Crim. App. 1989), citing Adams v. State, 707 S.W.2d 900, 903 (Tex. Crim. App. 1986). The question is whether the defect in the indictment prejudiced the substantial rights of Appellant, as the accused. See Adams, 707 S.W.2d at 903; see also TEX. R. APP. P. 44.2(b). Appellant urges that, in the context of this case, his notice of what the State alleged against him was inadequate for him to prepare his defense, as he stated in his motion to quash. (CR: 23). Indeed, allowing prosecution on this type of indictment might run afoul of the requirements of due process by making it impossible to know before trial what lesser offenses are included within the 26

37 indictment, yet making it possible at the end of the trial to convict for any offense that was incidentally shown by the evidence. See Farrakhan v. State, 247 S.W.3d 720, 723 (Tex. Crim. App. 2008) (stating same in context of lesser included offense analysis on an evading arrest conviction). For these reasons, the error in denying the motion to quash the indictment prejudiced the substantial rights of Appellant, resulting in harm to Appellant. In sum, Appellant asks this Court to set aside this void conviction. Only in the alternative, Appellant asks this Court to reverse and remand the case for prosecution based on an indictment which sets forth all of the necessary elements of the offense charged. APPELLANT S ISSUE NUMBER THREE THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE AUTOPSY PHOTOGRAPHS (S/E NOS. 63 & 64) THAT WERE MORE UNFAIRLY PREJUDICIAL THAN PROBATIVE. (RR4: 191). Finally, Appellant would urge that the trial court erred in admitting two autopsy photographs (S/E Nos. 63 & 64) into evidence because the probative value of such photographs was substantially outweighed by the danger of unfair prejudice. This error was harmful to Appellant. 27

38 APPLICABLE LAW Rule 403 of the Texas Rules of Evidence provides the following: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence. TEX. R. EVID In Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) (op. on reh g), the Texas Court of Criminal Appeals said: Therefore we hold that where relevant criteria, viewed as objectively as possible, lead to the conclusion that the danger of unfair prejudice substantially outweighed the probative value of the proffered evidence, the appellate court should declare that the trial judge erred in failing to exclude it. Id. at 392. In Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006), the Court stated: In summary, a trial court, when undertaking 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 the 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. Id. at See also Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007) (same test set out). The Court noted in Gigliobianco, By our decision today, we 28

39 do no more than refine and build upon our previous analysis, and bring it in line with the plain text of Rule 403. Gigliobianco, 210 S.W.3d at 642 n. 8. A trial court, in deciding whether to admit autopsy photographs, may consider the following factors to determine whether the danger of unfair prejudice substantially outweighs the probative value of the evidence: the number of photographs, the size of the photograph, whether they are in color or black and white, whether they are gruesome, whether the body is naked or clothed, and whether the body has been altered by autopsy. Reese v. State, 33 S.W.3d 238, 241 (Tex. Crim. App. 2000). In Erazo v. State, 144 S.W.3d 487 (Tex. Crim. App. 2004), in determining the admissibility of an autopsy photograph, the Court cautioned: We often have said that photographs depicting matters described by admissible testimony are generally admissible. This statement when viewed in isolation is far too broad and provides no guidance to the bench and bar to determine which photographs may be admitted and which must be excluded. Erazo, 144 S.W.3d at 489. The Court went on to state that, although a photograph may be admissible if verbal testimony of the photograph is admissible, it should be excluded if offered solely to inflame the minds of the jury. Id. at Of course, the admission of a photograph into evidence is within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. Wyatt v. State, 23 S.W.3d 18, 29 (Tex. Crim. App. 2000). Although an 29

40 abuse of discretion test is used to review a Rule 403 issue, the Court has held that the trial court s determination must be reasonable in view of all relevant facts. Rachal v. State, 917 S.W.2d 799, 808 (Tex. Crim. App. 1996). Further, the test as to whether the trial court abused its discretion is whether the action was arbitrary or unreasonable. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). Thus, the appellate review of this Rule 403 issue is limited to determining whether the probative value of the photograph is substantially outweighed by the danger of unfair prejudice. See Long v. State, 823 S.W.2d 259 (Tex. Crim. App. 1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3042, 120 L. Ed. 2d 910 (1992). Finally, in Barnes v. State, 876 S.W.2d 316 (Tex. Crim. App. 1994), the Court noted that [a] court may consider many factors in determining whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice.... A court, however, should not be limited by [a] list. The availability of other means of proof and the circumstances unique to each individual case should also be considered. Id. at 326. See also Williams v. State, 301 S.W.3d 675 (Tex. Crim. App. 2009), cert. denied, 130 S. Ct. 3411, 177 L. Ed. 2d 326 (2010) (citing the same factors). PERTINENT FACTS During the trial, it was undisputed that the complainant had died in the accident caused by Appellant s car colliding with the truck in which the 30

41 complainant was riding. The medical examiner testified at the end of the State s case regarding the autopsy and the manner of death. (RR4: 189, ). During his testimony, the State offered two photographs of the complainant s naked body with her private areas covered (S/E Nos. 63 & 64) into evidence. (RR4: 191). Appellant objected on the basis of relevance and the balancing act that the prejudice outweighs the proof to the jury. (RR4: 191). After viewing the exhibits, the trial court overruled the objection. (RR4: 192). Then, the trial judge retired the jury for a minute while he warned the persons in the courtroom that the pictures may be disconcerting and told them that they would need to control their emotions. (RR4: 192). He specifically advised them that, if they did not think they could see the exhibits without reacting to them, then they should leave the courtroom. (RR4: 193). Once the photographs were admitted, the medical examiner testified before the jury that the two photographs showed the abrasions and a few bruises and scrapes to the complainant s body. (RR4: ). He said that there were injuries to the back of the complainant s head that were not depicted in the photographs. (RR4: 194). The medical examiner then went on to say that, in this case, the majority of the injuries were internal and then described those internal injuries. (RR4: ). Finally, the medical examiner testified that the 31