Robertson, Stanley Wayne

Opinion

PD-0576-15

PD-0576-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

Transmitted 5/12/2015 10:32:17 AM Accepted 5/12/2015 4:09:49 PM ABEL ACOSTA

NO. _____________________________ CLERK

In The

Court of Criminal Appeals Of The State of Texas

Austin, Texas

_____________________________________

STANLEY WAYNE ROBERTSON,

Petitioner

vs.

THE STATE OF TEXAS,

_____________________________________

PETITION

FOR

DISCRETIONARY REVIEW

_____________________________________

Petition in Cause No. 10-04337-CRF-85 from the 85th District Court of Brazos County, Texas, And Cause No. 10-13-00105-CR Court of Appeals for the Tenth District of Texas

_____________________________________

GERALD E. BOURQUE

Appointed Counsel for Petitioner Attorney at Law

24 Waterway Ave., Suite 660 The Woodlands, TX 77380

PHONE: (281) 379-6901

May 12, 2015 Fax: (832) 813-0321

TBL #02716500

May 12, 2015

IDENTITY OF PARTIES AND COUNSEL The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Judges of this Court may evaluate possible disqualification or recusal. (a.) Stanley Wayne Robertson, appellant

(b.) John Edward Wright, P.O. Box 6547, Huntsville, TX, 77342 and Frank Blazek, 1414 11th Street, Huntsville, TX 77340, counsel for appellant at trial

( c.) Gerald E. Bourque, 24 Waterway Ave., Suite 660, The Woodlands, TX, 77380, counsel for appellant on appeal

(d.) The State of Texas represented by Jarvis Parsons and Brian Price, Office of the District Attorney, 300 East 26th Street, Suite 310, Bryan, TX, 77803, counsel for the State

(e.) Hon. J.D. Langley, Judge Presiding

/s/ Gerald E. Bourque

GERALD E. BOURQUE

Attorney of Record for Appellant

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TABLE OF CONTENTS

Page IDENTITY OF PARTIES...........................................................................................i TABLE OF CONTENTS..........................................................................................ii INDEX OF AUTHORITIES....................................................................................iv STATEMENT REGARDING ORAL ARGUMENT.................................................1 STATEMENT OF THE CASE..................................................................................3 STATEMENT OF THE PROCEDURAL HISTORY................................................3 GROUNDS FOR REVIEW.......................................................................................4 ARGUMENTS..........................................................................................................5

GROUND FOR REVIEW NO. ONE: The Court of Appeals erred in holding the evidence to be legally sufficient to sustain the guilty verdict..............................................................................................................

GROUND FOR REVIEW NO. TWO: The Court of Appeals erred in affirming the trial court’s denial of petitioner’s motion for instructed verdict.............................................................................................

GROUND FOR REVIEW NO. THREE: The Court of Appeals erred in holding that there was no fatal variance between the allegata and the probata..............................................................................................

GROUND FOR REVIEW NO. FOUR: The Court of Appeals erred in affirming the trial court’s overruling of petitioner’s objections to the jury charge.....................................................................................................

GROUND FOR REVIEW NO. FIVE: The Court of Appeals erred in affirming the trial court’s admission into evidence multiple autopsy photographs over petitioner’s objection........................................................

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PRAYER FOR RELIEF..........................................................................................22 CERTIFICATE OF SERVICE.................................................................................23 CERTIFICATE OF COMPLIANCE.......................................................................23 iii

INDEX OF AUTHORITIES

Page

CASES Bell v. State, 693 S.W. 2d 434 (Tex. Crim. App. 1985)...........................................15 Burks v. United States, 437 U.S. 1, 98 S.Ct 2141, 57 L.Ed.2d 1 (1978).................10 Canales v. State, 98 S.W. 3d 690 (Tex. Crim. App. 2003)......................................10 Dewberry v. State, 4 S.W. 3d 735 (Tex. Crim. App. 1999)........................................5 Drichas v. State, 175 S.W. 3d 795 (Tex. Crim. App. 2005).......................................5 Ferrel v. State, 55 S.W. 3d 586 (Tex. Crim. App. 2001)....................................14, 15 Gollihar v. State, 46 S.W. 3d 243 (Tex. Crim. App. 2001)................................11, 13 Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978)...................10 Hall v. State, 619 S.W. 2d 156 (Tex. Crim. App. 1980)...........................................11 Herrin v. State, 125 S.W. 3d 436 (Tex. Crim. App. 2002).................................7, 8, 9 Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)............5 Long v. State, 823 S.W. 2d 259 (Tex. Crim. App. 1991).........................................19 Malik v. State, 953 S.W. 2d 234 (Tex. Crim. App. 1997)..........................................5 Mason v. State, 905 S.W. 2d 570 (Tex. Crim. App. 1995).........................................8 Moreno v. State, 755 S.W. 2d 866 (Tex. Crim. App. 1988)......................................5 Narvaiz v. State, 840 S.W. 2d 415 (Tex. Crim. App. 1992).....................................11 iv

Rose v. State, 1 Tex. App. 400 (1876)......................................................................11 Rousseau v. State, 855 S.W. 2d 666 (Tex. Crim. App. 1993)..................................14 Santellan v. State, 939 S.W. 2d 155 (Tex. Crim. App. 1997)..................................19 Tibbs v. Florida, 457 U.S. 31, 102 S. Ct. 221, 72 L. Ed. 2d 652 (1982).................11 Torres v. State, 71 S.W. 3d 758 (Tex. Crim. App. 2002).........................................18 STATUTE Rule 403, Tex. R. Evid.......................................................................................19, 20

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STATEMENT REGARDING ORAL ARGUMENT The grounds for review set forth in this petition concern the conflicting opinions of different appellate courts on the same point of law, conflicts with this decision and the U.S. Supreme Court decisions, and the misinterpretation of the factual bases of petitioner's complaints by the Court of Appeals are adequately addressed without the necessity of oral argument.

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In The

Court of Criminal Appeals Of The State of Texas

Austin, Texas

_____________________________________

STANLEY WAYNE ROBERTSON,

Petitioner

vs.

THE STATE OF TEXAS,

_____________________________________

PETITION

FOR

DISCRETIONARY REVIEW

_____________________________________

COMES NOW, STANLEY WAYNE ROBERTSON, petitioner herein, and petitions this Court to review the judgment affirming his conviction for capital murder in cause no. 10-13-00105-CR, in the Tenth Court of Appeals, trial court no. 10-04337-CRD-85 in the 85th District Court of Brazos County, Texas.

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STATEMENT OF THE CASE

Petitioner was convicted of capital murder after a jury trial upon his plea of not guilty. Petitioner was indicted by a Brazos County grand jury for the offense of capital murder. (CR.-2). Trial was to a jury. (R.R. XXXIV-19, et seq.). Following the presentation of evidence, and following arguments of counsel and deliberations, the jury found petitioner guilty of the offense of capital murder as charged in the indictment. (R.R. XXXVII-49). After the presentation of punishment evidence, and after further arguments of counsel and deliberations, the jury answered special issue number one in the affirmative, special issue number two in the negative, and special issue number three in the affirmative, resulting in punishment being assessed at imprisonment for life without parole by operation of law. (R.R. L-4-5). This conviction was affirmed by the Court of Appeals, Tenth District, on April 16, 2015. A copy of said opinion is appended hereto as Appendix A.

STATEMENT OF PROCEDURAL HISTORY The Court of Appeals rendered its opinion affirming the conviction on April 16, 2015. No motion for rehearing was filed and this petition is filed with the clerk of the Court of Appeals within 30 days after the final ruling, to-wit: on May 15, 2015.

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GROUNDS FOR REVIEW

GROUND FOR REVIEW NO. ONE: The Court of Appeals erred in holding the evidence to be legally sufficient to sustain the guilty verdict.

GROUND FOR REVIEW NO. TWO: The Court of appeals erred in affirming the trial court’s denial of petitioner’s motion for instructed verdict.

GROUND FOR REVIEW NO. THREE: The Court of Appeals erred in holding that there was no fatal variance between the allegata and the probata.

GROUND FOR REVIEW NO. FOUR: The Court of Appeals erred in affirming the trial court’s overruling of petitioner’s objections to the jury charge.

GROUND FOR REVIEW NO. FIVE: The Court of Appeals erred in affirming the trial court’s admission into evidence multiple autopsy photographs over petitioner’s objection.

ARGUMENTS

GROUND FOR REVIEW NOS. ONE and TWO:

Petitioner raised the issue of the insufficiency of the evidence and the trial court’s error in failing to grant a motion for instructed verdict of acquittal, however the Court of Appeals erroneously rejected that argument. The Court of Appeals correctly cited the applicable standard to review the legal sufficiency of the evidence under Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See also Drichas v. State, 175 S.W. 3d 795 (Tex. Crim. App. 2005). While appellate courts do not re-evaluate the evidence, nor substitute the court’s judgment for that of the fact finder, they do overturn the verdict when it is irrational or unsupported by more than a mere modicum of the evidence. Dewberry v. State, 4 S.W. 3d 735 (Tex. Crim. App. 1999); Moreno v. State, 755 S.W. 2d 866 (Tex. Crim. App. 1988). Lastly, the legal sufficiency of the evidence is measured by the elements as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W. 2d 234 (Tex. Crim. App. 1997).

The jury charge in the cause sub judice charged as follows:

“Now, bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that on or about August 13, 2010, in Brazos County, Texas, the defendant, STANLEY ROBERTSON did intentionally cause the death of an individual, namely, Annie Toliver, by stabbing or cutting her with a knife, and the defendant was then and there in the course of committing or attempting to commit the offense of Kidnapping of Annie Toliver, you will find the defendant guilty of the offense of Capital Murder in the indictment.

If you do not so find, or if you have a reasonable doubt thereof, you will find the defendant not guilty of Capital Murder and next consider whether the defendant is guilty of the lesser-included offense of Murder.” (R.R. XXXVII-14- 16). Therefore, pursuant to the court’s charge, the only manner in which the jury could find petitioner guilty of the offense of capital murder was to find that he caused the complainant’s death while in the course of committing or attempting to commit kidnapping. Fatal to the verdict, however, is the absence of any evidence of the complainant’s death being caused in the course of committing kidnapping or attempted kidnapping. Therefore, no rational trier of fact could have found all the essential elements beyond a reasonable doubt.

The critical question is whether the murder was committed in the course of the kidnapping or attempted kidnapping, not the other way around. Herrin v. State, 125 S.W. 3d 436 (Tex. Crim. App. 2002). In other words, the critical question is which occurred first, the murder or the kidnapping. If the murder occurred first, then it was not done in the course of committing or attempting to commit kidnapping. Herrin, supra. Therefore, if the murder occurred first, the evidence is insufficient to sustain a conviction for capital murder. Herrin, supra.

It is abundantly clear in the case at bar that the complainant accompanied petitioner in his car voluntarily. (R.R.XXXIV-52-53). Nothing in the record shows that the complainant’s movement was ever restricted by petitioner, nor without her consent, prior to her being stabbed. The appellate court’s observation that petitioner stabbed Toliver through her seatbelt and that could show sufficient restraint to establish kidnapping defies logic. There is no evidence that petitioner caused Toliver to be restrained by the seatbelt; in fact, Texas law requires the use of seatbelts. Viewing the evidence in the light most favorable to the verdict, it was not until after the complainant was stabbed that a kidnapping could arguably have begun.1 The offense of kidnapping is complete when the person is restrained, and evidence exists establishing the defendant intended to restrain the victim by either secretion or the use or threat to use deadly force. Mason v. State, 905 S.W. 2d 570 (Tex. Crim. App. 1995). As regards capital murder as alleged herein, the kidnapping must precede the homicide. There is nothing to show that any alleged kidnapping occurred before the complainant was stabbed. The homicide of the complainant began at the time she was first stabbed. The “kidnapping” did not occur until after the homicide had begun. Therefore, the murder did not occur in the course of committing or attempting to commit kidnapping, the kidnapping or

1Petitioner does not concede that a kidnapping actually occurred. This is only presented as argument pursuant to the Jackson standard.

attempted kidnaping occurred in the course of committing murder. This is legally insufficient to sustain the conviction for capital murder.

The facts in the cause sub judice are astonishingly similar to those in Herrin, supra, wherein the Court of Criminal Appeals found the evidence therein to be legally insufficient to sustain a conviction for capital murder. In Herrin, the defendant approached the complainant’s truck with a rifle in his hand, opened the door, and shot the complainant in the chest. The defendant then moved the complainant’s body. In finding the evidence to be legally insufficient, the court stated:

“Appellant’s clear and un-diverted intent was to kill (the complainant). Nothing suggests that appellant was in the course of attempting a kidnapping when he shot (the complainant). Appellant did not shoot to merely disable or harm (the complainant) so that he could abduct him, but shot him at close range in the vital organs in an obvious effort to kill him. In light of appellant’s intent to murder (the complainant), appellant’s moving of (the complainant’s) body after the shooting did not amount to evidence that (the appellant) was in the course of kidnapping when the murder took place.” Herrin, supra.

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The facts are analogous to those in the case at bar. Petitioner did not kidnap the complainant first, and then murder her. She went willingly with him in his vehicle to Wal-Mart. She waited in his car in the parking lot while petitioner and her son went into the store. It was not until after petitioner returned to his vehicle that the homicide began. Blood was found in the parking lot of Wal-Mart where Petitioner’s vehicle had been. Therefore, it was after the homicide began that the complainant was moved. “Appellant’s moving of the body after the shooting in which appellant intended to kill the victim does not amount to a kidnapping or attempted kidnapping.” Herrin, supra. Therefore, Petitioner’s moving the complainant after he began to stab her does not amount to a kidnapping or attempted kidnapping herein. The murder began before any alleged kidnapping began. Therefore, petitioner did not murder the complainant during the course of kidnapping nor attempting to kidnap the complainant. As such, the evidence is legally insufficient to sustain the conviction.

At the close of the State’s case in chief, petitioner moved for an instructed verdict of not guilty. (R.R. XXXVI-72). The trial court denied petitioner’s motion. An appeal of the denial of a motion for an instructed verdict is a challenge to the legal sufficiency of the evidence. Canales v.

18

State, 98 S.W. 3d 690 (Tex. Crim. App. 2003). Because the state failed to prove beyond a reasonable doubt petitioner caused the death of the complainant in the course of committing kidnapping nor attempted kidnapping as alleged, and because the jury was charged to find petitioner guilty only if they found beyond a reasonable doubt that the homicide was committed during the course of kidnapping or attempted kidnapping, the evidence is legally insufficient to sustain the verdict. As such, the trial court erred in denying petitioner’s motion for an instructed verdict. The Court of Appeals erred in its analysis of the evidence in denying relief on these issues. The evidence is insufficient to support the conviction of capital murder warranting an acquittal. Burks v. United States, 437 U.S. 1, 98 S.Ct 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). The Court of Appeals was therefore in error by failing to reverse the conviction and enter a judgment of acquittal. For these reasons, petitioner urges that this cause be reversed and that a judgment of acquittal as to capital murder be entered. Tibbs v. Florida, 457 U.S. 31, 102 S. Ct. 221, 72 L. Ed. 2d 652 (1982); Narvaiz v. State, 840 S.W. 2d 415 (Tex. Crim. App. 1992).

GROUND FOR REVIEW NO. THREE:

The Court of Appeals likewise erred in failing to recognize the fatal

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variance between the allegations and the proof offered at trial. As pointed out to the Court of Appeals, a variance occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial. In a variance situation, the State has proven the defendant guilty of a crime, but has proven its commission in a manner that varies from the allegations in the charging instrument.” Gollihar v. State, 46 S.W. 3d 243 (Tex. Crim. App. 2001). This has been true in Texas jurisprudence for well over 100 years. Rose v. State, 1 Tex. App. 400 (1876). A variance is material and fatal if it misleads a defendant to his prejudice. Hall v. State, 619 S.W. 2d 156 (Tex. Crim. App. 1980). Petitioner was indicted for causing the death of the complainant by “stabbing and cutting her with a knife . . . .” (R.R. XXXIV-18-19). The jury was charged to find petitioner guilty if they found beyond a reasonable doubt that he, inter alia, “. . . caused the death of an individual - - namely Annie Toliver - - while stabbing or cutting her with a knife. . . .” (R.R. XXXVII-14-15). The evidence adduced by the State, however, wholly fails to show that petitioner caused the death of the complainant in the manner alleged.

The forensic pathologist, Shiping Bao, testified that the complainant had a total of approximately 38 stab wounds on her body.

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(R.R. XXXVI-21). However, none of the injuries the complainant suffered caused her death. Bao specifically testified as reflected at R.R. XXXVI-26, to-wit:

“Actually the conclusion was since there's no single fatal injury on the body, there's clotted blood, I would think Annie Toliver could have survived if there were emergency treatment during this period of time by removing the air and blood in the pleural cavities and blood transfusion.”

He further testified that the complainant would have survived her injuries if she had received proper medical treatment, which, according to Bao, were standard medical procedures. (R.R. XXXVI-27-28). He specifically testified that the wounds were only potentially fatal because of a lack of medical treatment. (R.R. XXXVI-33).

The Court of Appeals erred in finding that the variance, if any, was immaterial. The allegations as to the manner and means of cause of death was a factual issue of which the State was required to give notice and against which petitioner was able to prepare a defense. The Court of Appeals stated that Toliver would not have required medical attention at

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all if petitioner had not stabbed her, but that conclusion is superfluous. There are a number of conceivable factors that would have prevented Toliver from requiring medical attention, none of which constituted the cause of death. Clearly, there is a fatal variance between the allegata and the probata. The State alleged that petitioner caused the complainant’s death by cutting and stabbing her. The evidence, however, clearly establishes the complainant died as a result of a lack of medical treatment. Contrary to the opinion of the Court of Appeals, this variance was extremely material. The proof of the complainant’s death, the failure to seek medical care, was not alleged in the indictment. Therefore, the State has proven petitioner “ . . . guilty of a crime, but has proven its commission in a manner that varies from the allegations in the charging instrument.” Gollihar, supra. As the trial court charged the jury to convict petitioner if they believed beyond a reasonable doubt that petitioner caused her death by cutting and stabbing her, and as the State proved, arguendo, that petitioner caused the complainant’s death by failing to seek medical care for her, a fatal variance exists. The Court of Appeals failed to appreciate the insufficiency of the evidence due to this fatal variance. The Court of Appeals therefore erred in failing to grant relief because of the fatal variance between the allegations and proof,

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warranting a reversal by this Court of Criminal Appeals.

GROUND FOR REVIEW NO. FOUR:

The appellate court also erred in failing to grant relief on the basis that the trial court failed to instruct the jury regarding certain lesser included offenses. As noted herein above, Petitioner was indicted for the offense of capital murder. (R.R. XXXIV-19). The trial court provided a jury charge which included the charged offense, and the lesser included offenses of murder, felony murder, and manslaughter. (R.R. XXXVII-14- 17). Petitioner objected that the charge also did not include a lesser included charge of aggravated kidnapping and kidnapping. (R.R. XXXVII-5).

The Court of Appeals correctly recognized that a defendant is entitled to a lesser included offense instruction if proof of the charged offense includes the proof required to establish the lesser included offense, and there is some evidence in the record that would permit a jury to rationally find that if the defendant is guilty, he is guilty only of the lesser included offense. Ferrel v. State, 55 S.W. 3d 586 (Tex. Crim. App. 2001). The appellate court must review all the evidence produced at trial in arriving at this determination. Rousseau v. State, 855 S.W. 2d 666 (Tex. Crim. App. 1993). If the evidence raises an issue of a lesser

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included offense, a jury charge on that offense is mandatory, regardless of whether the evidence is from the State or the defendant, or whether it is strong, weak, unimpeached, or contradicted. Bell v. State, 693 S.W. 2d 434 (Tex. Crim. App. 1985).

First, as alleged in the case at bar, kidnapping is a lesser included offense of capital murder. The Court defined kidnapping for the jury in its charge. (R.R. XXXVII-13-14). Additionally, the Court charged the jury it could convict petitioner if it believed that he caused the death of the complainant by committing an act clearly dangerous to human life in the course of committing kidnapping. (R.R. XXXVI-16). Therefore, petitioner has met his burden under the first prong. Ferrel, supra.

Furthermore, it is obvious that evidence existed that Ppetitioner was not guilty of the charged offense as alleged, but, if at all, only of a lesser included offense. The evidence adduced at trial established, arguendo, that petitioner did not cause the death of complainant in the manner alleged by the State, but by another means. 2 The indictment alleged that petitioner caused the death of the complainant by cutting and stabbing her with a knife, while in the course of committing or attempting to commit kidnapping. The evidence, as discussed infra, shows that the

2Petitioner does not concede that the State proved he caused the death of the complainant, but presents this theory by way of argument.

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complainant died from a lack of proper medical care, a manner not alleged in the indictment. Therefore, it is clear that while petitioner was not guilty of the offense of capital murder as alleged, there was evidence that he was guilty of the offense of kidnapping only. The Court of Appeals, in concluding that petitioner committed capital murder, substituted its judgment for what the jury could have determined. The Court of Appeals based its erroneous opinion on its conclusion that a rational juror or could have determined that the stab wounds were a cause of Toliver’s death, consistent with the allegations in the indictment. Ignored by the Court of Appeals is the fact that a rational juror could likewise have determined that the lack of medical care was the cause of death as detailed by the State’s expert witness, acquitted petitioner of capital murder, and found him guilty of kidnapping. The jury was denied the opportunity to make that factual determination, which issue apparently escaped the Court of Appeals. The Court of Appeals concluded that because the jurors had sufficient evidence to convict petitioner of capital murder, there was no evidence of a lesser included offense. That determination by the Court of Appeals ignores the salient portions of the record that challenged the cause of death. The trial court’s jury charge requires the jury to find that petitioner caused the

25

complainant’s death in order to convict him of either the charged offense, or any of the lesser included offenses included in the jury charge. Therefore, according to the charge, the jury must have found petitioner caused a homicide to convict him of anything. However, the jury charge does not allow the jury to convict petitioner of the offense that the State actually proved: kidnapping. The only difference between the charged offense of capital murder and the requested lesser included offense of kidnapping is the existence of a homicide. The jury could have found, based upon the evidence adduced by the State, that petitioner did not cause the death of the complainant in the manner alleged by the State, and is therefore not guilty of committing a homicide, but did, in fact, kidnap the complainant.

The trial court charged the jury on a plethora of lesser included offenses. (R.R. XXXVII-15-17). Therefore, the trial court acknowledged that some evidence of the charged offense of capital murder was absent. However, the trial court’s charge of the lesser included offense of felony murder still requires the jury to find that petitioner committed the offense of kidnapping. Other charged lesser included offenses allowed the jury to convict petitioner of a homicide offense without requiring the jury to find petitioner also committed the offense of kidnapping. However, there was

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evidence in the record that a rational juror or could have believed demonstrated that petitioner did not cause the death of the complainant in the manner alleged in the indictment. This is true, regardless of the opinion by the Court of Appeals regarding guilt. Therefore, because of the fatal variance between the allegata and the probata regarding the complainant’s death, the jury could have rationally found that petitioner kidnapped the complainant, but did not cause her death in the manner alleged. The Court of Appeals even failed to address the fact that the trial court recognized the possibility of an acquittal of capital murder and instructed the jury regarding some lesser included offenses. Because the trial court already concluded that a genuine issue as to the lack of evidence proving beyond a reasonable doubt that petitioner committed the offense of capital murder, demonstrated by the court’s lesser included instructions, it erred in not also providing an instruction on kidnapping over petitioner’s objection. (R.R. XXXVII-5). The Court of Appeals erred in its analysis of this issue based on its opinion that appellant was guilty of capital murder. Just because a rational juror could have found petitioner guilty of capital murder does not necessarily mean that another rational juror could have acquitted petitioner of capital murder and found him guilty of kidnapping. Because of this failure of the Court of Appeals

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to grant relief on this issue, this court should reverse the conviction.

GROUND FOR REVIEW NO. FIVE:

Regarding the introduction of prejudicial photographs, the Court of Appeals erred in its analysis of the issue. The Court of Appeals correctly recognized the standard of review as abuse of discretion standard. Torres v. State, 71 S.W. 3d 758 (Tex. Crim. App. 2002). The trial court’s ruling is overturned when it falls outside the zone of reasonable disagreement. Santellan v. State, 939 S.W. 2d 155 (Tex. Crim. App. 1997). Rule 403, Tex. R. Evid., requires that photographs introduced into evidence to have some probative value that is not outweighed by their inflammatory nature. Long v. State, 823 S.W. 2d 259 (Tex. Crim. App. 1991). Factors the court uses in making this determination included the number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or in color, whether the body is naked or clothed, the availability of other means of proof, and any circumstances unique to an individual case. Long, supra. Applying this to the case at bar leads to the inescapable conclusion that the trial court abused its discretion in admitting into evidence several autopsy photographs over Appellant’s objection.

The State tendered State’s Exhibits Number 148, 149 and 150.

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Petitioner objected to their admission, observing that any possible probative value was outweighed by the effect of the unfair prejudice. (R.R. XXXV-188). The complained of photographs were large, full color closeups of the complainant’s bloody face in two photographs, and of the complainant’s entire bloody body in the third photograph. The State offered them into evidence purportedly to demonstrate the condition in which the complainant’s body was found. However, the State introduced other photographs demonstrating the condition of the complainant’s body to which petitioner did not object. The complained of photographs, therefore, were not needed in order for the State to establish the condition of the complainant’s body. As such, they had no probative value.

The State additionally tendered eight photographs from the autopsy on the complainant as State’s Exhibits Numbers 206, 207, 209, 210, 211, 212, 214, and 216, with the State’s forensic pathologist, Shiping Bao, serving as the sponsor. (R.R. XXXVI-5, 14). Petitioner objected to their introduction, complaining that any probative value they might have was outweighed by their inflammatory nature. Rule 403, Tex. R. Evid. (R.R. XXXVI-6, 14). The trial court overruled petitioner’s objection. (R.R. XXXVI-6, 14). The photographs were gruesome in nature, in that they were large, full color detailed closeups of numerous puncture wounds on

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complainant’s body. The State’s theory for their introduction was that they demonstrate the wounds inflicted by petitioner. Unique to the cause sub judice, however, is the fact that these wounds did not cause the death of the complainant according to the State’s own evidence.

According to the forensic pathologist’s testimony, these wounds did not cause the death of the complainant. Bao testified that none of these wounds was fatal, nor did they cause the death of the complainant. (R.R. XXXVI-26). A lack of proper medical care caused the complainant’s death, according to Bao. (R.R. XXXVI-27-28, 33). Therefore, these photographs had minimal probative value at best. As such, any putative probative value was grossly outweighed by the photographs’ prejudicial effect. Bao testified that the gruesome wounds depicted in the photographs did not cause the death of the complainant. Therefore, their introduction only served to inflame the minds of the jury. The opinion of the Court of Appeals simply described the photographs with insufficient analysis of the prejudicial effects and lack of probative value. The Court of Appeals then simply summarily stated that there was no abuse of discretion in the admission of the photographs in contravention of the authorities cited by petitioner above. The Court of Appeals therefore erred in failing to properly address the factual complaints concerning the photographs and in summarily finding no abuse of discretion. The error of the Court of Appeals requires this court to reverse the conviction.

The reasons compelling review by this Court are therefore several. The decision of the Court of Appeals conflicts with decisions of other appellate courts, the same appellate court, and with applicable decisions of this Court and the

United States Supreme Court. The Court of Appeals has in effect decided important questions of State law which should be settled by this Court of Criminal Appeals. The decision of the Court of Appeals is therefore in conflict with the decisions cited above and additionally has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a lower court, as to call for an exercise of this Court's power of supervision.

PRAYER FOR RELIEF

For the reasons herein alleged, petitioner was denied a fair trial in Cause No.

10-04337-CRF-85 and Cause No. 10-13-00105-CR before the Court of Appeals. This Court should grant review in order to address and correct the errors of the Court of Appeals. Therefore, petitioner prays that this Court grant this petition, and upon reviewing the judgment entered below, reverse this cause and render a judgment of acquittal, or in the alternative, remand it to the trial court for a new trial.

Respectfully submitted,

/S/ Gerald E. Bourque

GERALD E. BOURQUE

Appointed Counsel for Petitioner Attorney at Law

24 Waterway Ave., Suite 660 The Woodlands, TX 77380

PHONE: (281) 379-6901

FAX: (832) 813-0321

TBL #02716500

CERTIFICATE OF SERVICE

This is to certify that copies of the above entitled and numbered petition for discretionary review have been served on the State by providing a copy to the Office of the District Attorney, 300 East 26 th Street, Suite 310, Bryan, Texas, 77803, by United States Mail, postage prepaid, and the State Prosecuting Attorney, P.O. Box 12405, Austin, TX 78711, by United States Mail, postage pre-paid, on the 12th day of May, 2015.

/S/ Gerald E. Bourque

GERALD E. BOURQUE

Attorney for Petitioner

CERTIFICATE OF COMPLIANCE Pursuant to Rules 9.4(i)(1), 9.4(i)(2)(A), and 9.4(i)(3), Tex. R. App. Proc, I hereby certify that the word count of the program used to prepare this document is 4,139 words.

/S/ Gerald E. Bourque

GERALD E. BOURQUE

APPENDIX A