IN THE TENTH COURT OF APPEALS
No. 10-08-00366-CR
BEVERLY LATIMER, Appellant v.
THE STATE OF TEXAS, Appellee
From the 13th District Court Navarro County, Texas Trial Court No. 31,022
OPINION
Beverly Latimer was convicted by a jury of capital murder and automatically
received a sentence of imprisonment for life without the possibility of parole. TEX. PEN.
CODE ANN. §§ 19.03; 12.31 (Vernon 2005). Latimer complains that the trial court erred
by denying her motion for continuance, by allowing expert testimony, by admitting
prejudicial photographs, by allowing the testimony of a witness, and that the evidence
was both legally and factually insufficient for the jury to have found her guilty of
capital murder. Because we find no abuse of discretion regarding the continuance, the
expert testimony, or the admission of photographs, that the issue regarding the witness testimony was waived, and that the evidence was legally and factually sufficient, we
affirm the judgment of the trial court.
Motion for Continuance
We review a trial court’s ruling on a motion for continuance for abuse of
discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007); Janecka v. State, 937
S.W.2d 456, 468 (Tex. Crim. App. 1996). To establish an abuse of discretion, there must
be a showing that the defendant was actually prejudiced by the denial of his or her
motion. Gallo, 239 S.W.3d at 764; Janecka, 937 S.W.2d at 468. A bare assertion that
counsel did not have adequate time to prepare for trial is not sufficient proof of
prejudice. See Renteria v. State, 206 S.W.3d 689, 702 (Tex. Crim. App. 2006); Heiselbetz v.
State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995).
Latimer personally filed a hand-written motion for continuance on September 5,
2008, after the start of jury selection. Her motion stated that she did not feel that her
attorneys were ready because they had not had adequate time to review their expert’s
report that had been received on September 1, 2008, because her attorneys had been
advising her that they needed three to four weeks to review the report when received.
It is apparent that Latimer’s attorneys had difficulty in receiving necessary items for
testing from the forensic laboratory and a medical center that had those items in their
custody or control, and those items were not fully received until sometime in August of
2008. We note, however, that they did not first request those items until March of 2008,
which was approximately a year and a half after Latimer’s arrest. Additionally, at the
Latimer v. State Page 2 hearing on the motion for continuance, Latimer’s attorneys did not request more time to
prepare, but allowed Latimer to testify as to why she felt a continuance was needed.
During the trial, Latimer’s attorneys cross-examined the State’s witnesses
vigorously and Latimer’s own expert testified at trial beginning on September 16, 2008.
They did, however, for the first time, list things they would have done if given more
time at the motion for new trial hearing. The record does not demonstrate that Latimer
was prejudiced by the denial of her motion. The trial court did not abuse its discretion
in denying Latimer's motion. We overrule issue one.
Expert Witness Testimony
Latimer complains that the trial court erred by allowing Dr. Jayme Coffman, an
expert for the State, to testify as to the cause of death of the child because she was not an
expert in the field of pathology. Dr. Coffman had been the medical director at Cook
Children’s Medical Center since January of 2000. She was board certified in pediatrics
in 1991, and had extensive experience in dealing with child abuse victims on a daily
basis, some of whom had died as a result of their injuries. She testified as to her
methodology for determining whether a particular injury was the result of abuse or
maltreatment, which included interviews with all relevant people and a review of any
internal testing conducted, including CT’s, MRI’s, and skeletal surveys. She had
extensive training and attended many seminars and would read any literature available
on the subject of child abuse. She had also studied autopsies and literature regarding
autopsies. If she had a child patient who died, she would follow through and speak
with the medical examiner, and conduct a fatality review. Dr. Coffman had seen many
Latimer v. State Page 3 autopsies with similar injuries as to those of the child in this case, and was experienced
in interpreting pictures and autopsy reports.
Dr. Coffman testified that she had spoken with the medical examiner several
times, had reviewed the autopsy report and photographs, reviewed all of the medical
records including those from prior injuries, and reviewed all of the foster care and
historical documentation regarding the child’s psychological and developmental health.
We review the admission of expert testimony for an abuse of discretion. Joiner v.
State, 825 S.W.2d 701, 708 (Tex. Crim. App. 1992). Rule 702 of the Texas Rules of
Evidence governs the admission of expert testimony. See TEX. R. EVID. 702. Rule 702
states,
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
TEX. R. EVID. 702.
Thus, before admitting expert testimony under Rule 702, the trial court must be
satisfied that three conditions are met: (1) the witness qualifies as an expert by reason
of his or her knowledge, skill, experience, training, or education; (2) the subject matter
of the testimony is an appropriate one for expert testimony; and (3) admitting the expert
testimony will actually assist the fact-finder in deciding the case. Rodgers v. State, 205
S.W.3d 525, 527 (Tex. Crim. App. 2006) (citing Alvarado v. State, 912 S.W.2d 199, 215-16
(Tex. Crim. App. 1995).
Latimer v. State Page 4 Because the possible spectrum of education, skill, and training is so wide, a trial
court has great discretion in determining whether a witness possesses sufficient
qualifications to assist the jury as an expert on a specific topic in a particular case. See
Joiner v. State, 825 S.W.2d 701, 708 (Tex. Crim. App. 1992); Steve v. State, 614 S.W.2d 137,
139 (Tex. Crim. App. 1981). For this reason, we rarely disturb the trial court's
determination that a specific witness is or is not qualified to testify as an expert. Wyatt
v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000) ("The question of whether a witness
offered as an expert possesses the required qualifications rests largely in the trial court's
discretion. Absent a clear abuse of that discretion, the trial court's decision to admit or
exclude testimony will not be disturbed."). We do not find that based on Dr. Coffman’s
qualifications that the trial court abused its discretion by allowing the testimony. We
overrule issue two.
Admission of Evidence
Latimer complains that the trial court erred by admitting two photographs of the
child taken after he was deceased because their prejudicial value substantially
outweighed their probative value. See TEX. R. EVID. 403. We review the admission of
evidence for an abuse of discretion. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App.
2007); Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2004); Paredes v. State, 129
S.W.3d 530, 539 (Tex. Crim. App. 2004).
As a general rule, a photograph is admissible if verbal testimony regarding what
is depicted in the photograph is also admissible and the probative value of the
photograph is not substantially outweighed by any of the factors we use in a rule 403
Latimer v. State Page 5 analysis. Threadgill v. State, 146 S.W.3d 654, 671 (Tex. Crim. App. 2004); Williams v. State,
958 S.W.2d 186, 195 (Tex. Crim. App. 1997); Long v. State, 823 S.W.2d 259, 271 n.18 (Tex.
Crim. App. 1991). Rule 403 of the rules of evidence favors the admissibility of relevant
evidence, and the presumption is that relevant evidence will be more probative than
prejudicial. Shuffield, 189 S.W.3d at 787; Long, 823 S.W.2d at 271. An abuse of discretion
arises only when the probative value of the photographs is small and its inflammatory
potential is great. Long, 823 S.W.2 at 271.
In determining whether the trial judge erred in admitting a certain photograph,
we first consider the form, content, and context of the photograph. Erazo v. State, 144
S.W.3d 487, 492 (Tex. Crim. App. 2004); Long, 823 S.W.2d at 271-73 (court should
consider number of exhibits offered; gruesomeness, detail, and size of photographs;
whether photographs are black and white or in color; whether they are close-up;
whether body is naked or clothed; and availability of other means of proof and
circumstances unique to each individual case). We then consider (1) the probative
value of the evidence; (2) the ability of the photograph to impress the jury in some
irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the
proponent’s need for the evidence. Shuffield, 189 S.W.3d at 787; Erazo, 144 S.W.3d at
492-96.
There were fifteen color photographs taken of the child at the hospital after his
death admitted into evidence through one of the responding paramedics. They were
approximately 8” by 11” in size. Some were close up, some were not. Latimer
complains of the admission of only two of the photographs.
Latimer v. State Page 6 The complained-of photographs show certain injuries sustained by the victim
and were offered at the end of the State’s direct examination. The first complained-of
photograph depicts the child at the hospital taken shortly after his death with the
child’s eyes open and shows bruising on the child’s body, including his chest and face.
The second complained-of photograph depicts the child after death with his arm
straightened out which shows a slight bruise on the arm and also the child’s face with
his eyes open.
Although the photographs depict gruesome details, they are no more gruesome
than the facts of this case. See Shuffield, 189 S.W.3d at 788 (photographs only showed
victim’s injuries and were no more gruesome than expected); Sosa v. State, 230 S.W.3d
192, 196 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (prejudice caused by
photographs did not substantially outweigh their probative value; photographs were
no more gruesome than facts of the offense).
Furthermore, we conclude the photographs provided a necessary visual
component to, and understanding of, the paramedics’ testimony regarding what they
observed regarding the nature and extent of the victim's injuries. Both of the
responding paramedics testified that the child’s pupils were “blown,” that the child had
bruising on his chest with an unknown origin, and had what was described as a hand
stripe bruise on his arm. These injuries were in addition to the “battle” bruising behind
the child’s ear, the dehydrated appearance of his lips and gums, the multiple areas of
bruising on the child’s head, face, arms, and legs depicted in the other photographs, of
which Latimer does not complain. The photographs were probative because they
Latimer v. State Page 7 showed the full extent and arguably non-accidental nature of a number of those
injuries. See Gallo, 239 S.W.3d at 763; Salazar, 38 S.W.3d at 147-53. Thus, they were
necessary for the State to develop its case.
When considered in light of the facts of this case, we conclude the autopsy
photographs are not overly prejudicial and did not pose the danger of influencing the
jury in an irrational way. The State spent little time authenticating the photos through
that witness. Accordingly, the trial court did not abuse its discretion by admitting the
autopsy photographs. We overrule issue three.
Admission of Witness Testimony
Latimer complains that the trial court erred by allowing testimony regarding an
incident that had occurred in a grocery store some time the week before the child’s
death that involved Latimer allegedly requiring the young children, ages approximately
four and five, in the store with her to keep their hands on the grocery cart at all times.
The witness observed Latimer get angry with one child when she took her hands off of
the cart. The child went backward and knocked over some chili.1 Latimer grabbed the
child and the child had to put her hands back on the cart. The child was crying,
although not audibly. The children kept their hands on the cart throughout their
conversation, which lasted approximately thirty minutes.
1The record is not clear as to what precisely fell over in the testimony, whether it was a display, a single can, or multiple cans of chili.
Latimer v. State Page 8 Latimer complains that this testimony was inadmissible because it did not allege
a bad act; that she did not receive the required notice of the extraneous offense or bad
act; and that its probative value was substantially outweighed by its prejudicial effect.
Latimer does not present any authority relating to her arguments on appeal as to
why the act does not constitute a bad act or why the State’s notice was inadequate. The
sole legal reference in this entire issue is a regurgitation of rule 404(b). This is
insufficient. In order to properly present an issue to this Court, citations to appropriate
authorities is required. See TEX. R. APP. P. 38.1(h). Therefore, this issue is inadequately
briefed, and therefore, is waived. See Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim.
App. 1996) (“It is incumbent upon appellant to cite specific legal authority and to
provide legal arguments based upon that authority.”). We overrule issue four.
Legal and Factual Sufficiency
Latimer complains that the evidence was both legally and factually insufficient
for the jury to have found that she caused the death of the child because there was
competing testimony regarding the timing of the head injury or injuries and
inconsistencies in the testimony of certain of the State’s witnesses.
In reviewing the legal sufficiency of the evidence to support a conviction, we
view all of the evidence in the light most favorable to the prosecution in order to
determine 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, 319, 99 S. Ct.
2781, 2789, 61 L. Ed. 2d 560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). Furthermore, we must consider all the evidence admitted at trial, even
Latimer v. State Page 9 improperly admitted evidence, when performing a legal sufficiency review. Clayton,
235 S.W.3d at 778; Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004). The
standard of review is the same for direct and circumstantial evidence cases;
circumstantial evidence is as probative as direct evidence in establishing an actor’s
guilt. Clayton, 235 S.W.3d at 778; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007).
When reviewing the factual sufficiency of the evidence to support a conviction,
we view all the evidence in a neutral light, favoring neither party. Steadman v. State, 280
S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim.
App. 2006). We then ask whether the evidence supporting the conviction, although
legally sufficient, is nevertheless so weak that the fact-finder’s determination is clearly
wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the
evidence supporting the conviction that the fact-finder’s determination is manifestly
unjust. Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at 414-15, 417. To reverse
under the second ground, we must determine, with some objective basis in the record,
that the great weight and preponderance of all the evidence, although legally sufficient,
contradicts the verdict. Watson, 204 S.W.3d at 417.
Unless we conclude that it is necessary to correct manifest injustice, we must give
due deference to the fact-finder’s determinations, “particularly those determinations
concerning the weight and credibility of the evidence.” Johnson v. State, 23 S.W.3d 1, 9
(Tex. Crim. App. 2000); see Steadman, 280 S.W.3d at 246. Evidence is always factually
Latimer v. State Page 10 sufficient when it preponderates in favor of the conviction. Steadman, 280 S.W.3d at 247;
see Watson, 204 S.W.3d at 417.
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not enough
that we “harbor a subjective level of reasonable doubt to overturn [the] conviction.”
Watson, 204 S.W.3d at 417. We cannot conclude that a conviction is clearly wrong or
manifestly unjust simply because we would have decided the question differently than
the jury or because we disagree with the jury’s resolution of a conflict in the evidence.
Id. We may not simply substitute our judgment for the fact-finder’s. Johnson, 23 S.W.3d
at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record clearly
reveals that a different result is appropriate, we must defer to the jury’s determination
of the weight to be given contradictory testimonial evidence because resolution of the
conflict “often turns on an evaluation of credibility and demeanor, and those jurors
were in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8. Our
deference in this regard safeguards the defendant’s right to a trial by jury. Lancon v.
State, 253 S.W.3d 699, 704 (Tex. Crim. App. 2008). A factual sufficiency review of
circumstantial evidence is the same as a review of direct evidence. King v. State, 29
S.W.3d 556, 565 (Tex. Crim. App. 2000); Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim.
App. 1999) (reasoning that “[c]ircumstantial evidence, by itself, may be enough to
support the jury’s verdict”).
It is undisputed by the testifying experts, both for the State and Latimer that the
child died from blunt force trauma to the head. The medical examiner and Dr. Coffman
Latimer v. State Page 11 both testified that the blunt force trauma could not have occurred days before the
child’s death because of the severity of the injury to the child’s brain. The child did not
exhibit any symptoms or odd behavior on the days before and the morning of his death.
Latimer was the only adult present the morning of the child’s death. Latimer made
statements to various sources around the time of the child’s death that the child had
gotten out of his play yard more than once that morning, and while she was cooking
lunch, that she was exhausted because the child would get out of his play yard at night,
and that the child was clingy and required a lot of one on one attention. Other
witnesses described the angry and harsh treatment of the deceased child and the other
children in her home. We find that the evidence was legally sufficient for the jury to
have found beyond a reasonable doubt that Latimer caused the child’s death.
Latimer contends that statements by the two paramedics, the nurse who treated
the child at the hospital, and a social worker who placed the child with Latimer gave
different details at trial from that which were in written and oral statements given
before trial. Latimer contends that these inconsistencies, taken with their expert’s
testimony that the child’s brain injury occurred prior to the child’s placement in
Latimer’s home render the evidence factually insufficient. However, it is the province
of the jury to determine the credibility of the witnesses. Johnson, 23 S.W.3d at 9. We
cannot say that the evidence was so weak that the fact-finder’s determination is clearly
wrong and manifestly unjust or that the conflicting evidence so greatly outweighs the
evidence supporting the conviction that the fact-finder’s determination is manifestly
Latimer v. State Page 12 unjust. See Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at 414-15, 417. We overrule
issue five.
Conclusion
We find no abuse of discretion by the trial court by denying Latimer’s motion
for continuance. We also find no abuse of discretion by the trial court in the admission
of the expert testimony by Dr. Coffman or in the admission of the two photographs.
We find the issue regarding the testimony of the witness regarding an extraneous
offense or bad act to have been waived due to inadequate briefing. The evidence was
both legally and factually sufficient to sustain the conviction. We affirm the judgment
of the trial court.
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Reyna, and Justice Davis (Justice Davis joins the opinion in part and concurs in part. Justice Davis joins the Court on overruling issues one, two, three and five. Justice Davis concurs in overruling issue four on the briefing of appellant and appellee and does not find the briefing inadequate and thus, the issue not waived.) Affirmed Opinion delivered and filed April 28, 2010 Publish [CRPM]
Latimer v. State Page 13