In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00010-CR
CATRINA MALDONADO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 235th District Court
Cooke County, Texas
Trial Court No. CR11-00316
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Carter
OPINION
On September 10, 2011, Nathan De Alejandro, a four-year-old child, suffered severe,
third-degree burns covering sixty percent of his body. Precisely what caused Nathan’s injuries,
which ultimately led to his death on September 24, 2011, remains a mystery. What is known,
however, is that Nathan lived for fourteen days after suffering these severe injuries; that during
those fourteen days, Nathan received no professional medical attention; and that Nathan died as a
direct result of these burns and their related complications. It was not until Nathan stopped
breathing on September 24, 2011, that his mother, Catrina Maldonado, finally sought assistance
for her child. Maldonado pled guilty to the crime of injury to a child by omission1 and elected to
have a Cooke County2 jury determine her punishment. She was sentenced to life imprisonment.
During her punishment trial, Maldonado objected to the admission of a number of photographs
depicting the nature and extent of the burn wounds that covered Nathan’s body at the time of his
death. On appeal, Maldonado claims that the trial court abused its discretion (1) in admitting the
photographs and (2) in failing to adequately balance the probative value of the photographs
against their unfair prejudicial effect as required by Rule 403 of the Texas Rules of Evidence.
See TEX. R. EVID. 403. We overrule both points of error and affirm the trial court’s judgment.
1
See TEX. PENAL CODE ANN. § 22.04 (West Supp. 2014).
2
Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are
unaware of any conflict between precedent of the Second Court of Appeals and that of this Court on any relevant
issue; however, we have applied the Second Court’s precedent where appropriate. See TEX. R. APP. P. 41.3.
2
I. The Facts
In the early morning hours of September 24, 2011, Cooke County Emergency Medical
Services (EMS) received a call concerning a child in respiratory distress; when they arrived on
the scene, they found Maldonado’s neighbor, Sue Branch, performing CPR on Nathan. EMS
personnel were unable to resuscitate Nathan, and he was eventually pronounced dead at the
hospital.
On September 10—fourteen days before EMS was summoned for assistance—
Maldonado left Nathan in the care of her boyfriend, Johnny Earl Alexander, while she went to
work. At 11:03 a.m. on September 10, Alexander called Maldonado and told her that Nathan
had been burned in the bathtub. In reality, sixty percent of Nathan’s body was covered with
primarily third-degree burns. While certain aspects of Maldonado’s account of the events
preceding Nathan’s death changed from the time she initially spoke to the police on
September 24 to the time she testified at trial, one fact remained consistent throughout—during
the fourteen days between the time Nathan was burned and his death, Nathan received no
professional medical treatment for his burn injuries.
On September 21, 2014, three days before EMS was contacted, the police were at
Maldonado’s home looking for Alexander’s brother on an unrelated matter. Officer George
Courtney, one of the officers at Maldonado’s home on September 21, said he saw a child
wrapped from head to toe in blankets. According to Courtney, whenever the child was touched
or moved, he made sounds indicating that he was in “much distress and in pain.” In describing
the sounds of distress, Courtney testified,
3
I have children, most of us do, but there’s different cries and different screams.
You could just tell that every time that the bed would move or a blanket was
moved that he was wrapped in, you could tell that there was some type of pain
going on from -- from the voice.
Courtney had no doubt that the child needed immediate medical attention. Maldonado told
Courtney that the child had a very bad case of the flu, so Courtney and the other officers kept
their distance for fear of contagion. Maldonado also told Courtney that Alexander’s parents
were taking Nathan to the doctor that day. Courtney had her use his cell phone two or three
different times to call Alexander’s parents to make sure they were coming. Courtney testified
that, had Alexander’s parents not arrived to take the child, he believed to see a doctor, he would
have summoned EMS to the scene that day
Maldonado was convicted, on her guilty plea, of injury to a child for failing to seek
medical attention for Nathan; as previously noted, she was sentenced to life in prison. In a
separate proceeding, Alexander was also convicted of injury to a child and sentenced to life
imprisonment. 3
II. The Law
We review a trial court’s ruling on the admissibility of evidence for an abuse of
discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g).
“That is to say, as long as the trial court’s ruling was at least within the zone of reasonable
disagreement, the appellate court will not intercede.” Id.
3
Alexander’s conviction is on appeal to the Eighth Court of Appeals under appellate cause number 08-14-00113-CR.
Alexander’s parents were also charged with neglect in connection with Nathan’s death.
4
Under the Texas Rules of Evidence, relevant evidence is generally admissible. TEX. R.
EVID. 402. Article 37.07, Section 3(a)(1) of the Texas Code of Criminal Procedure, governing
the admissibility of evidence during the punishment phase of a non-capital trial, states,
“Regardless of the plea and whether the punishment be assessed by the judge or the jury,
evidence may be offered by the state and the defendant as to any matter the court deems relevant
to sentencing . . . .” TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2014). In
discussing the practical effect of Article 37.07, the Texas Court of Criminal Appeals stated,
[U]nder Article 37.07, the admissibility of evidence in a non-capital trial is a
matter of policy, including the policy of giving complete information to the jury
to allow it to tailor an appropriate sentence for the defendant. The result is that
what is relevant for the jury to hear during punishment is determined by whatever
is helpful to the jury.
Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007) (citation omitted). With respect to
the relevance of photographic evidence, the Court of Criminal Appeals further instructs,
A photograph should add something that is relevant, legitimate, and logical to the
testimony that accompanies it and that assists the jury in its decision-making
duties. Sometimes this will, incidentally, include elements that are emotional and
prejudicial. Our case law is clear on this point: If there are elements of a
photograph that are genuinely helpful to the jury in making its decision, the
photograph is inadmissible only if the emotional and prejudicial aspects
substantially outweigh the helpful aspects.
Erazo v. State, 144 S.W.3d 487, 491–92 (Tex. Crim. App. 2004).
Under Rule 403 of the Texas Rules of Evidence, even relevant “evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice . . . .” TEX. R. EVID. 403. “Rule 403 favors admissibility of relevant evidence, and the
presumption is that relevant evidence will be more probative than prejudicial.” Montgomery,
5
810 S.W.2d at 389 (op. on reh’g). Rule 403 requires both trial and reviewing courts to analyze
and balance “(1) the probative value of the evidence; (2) the potential 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.” Erazo, 144 S.W.3d at 489. “In making this determination,
we consider factors including: the number of exhibits offered, their gruesomeness, their detail,
their size, whether they are black and white or color, whether they are close-up shots, whether
the body is naked or clothed, the availability of other means of proof, and other circumstances
unique to the individual case.” Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997).
III. Application
A. The Photographs
Maldonado complains that the trial court abused its discretion in admitting some thirty-
five photographs depicting the burn wounds on Nathan’s body at or near the time of his death.
Specifically, Maldonado objected to the admission of six photographs taken by EMS personnel
on September 24 4 and to twenty-nine photographs taken by the Dallas County Medical
Examiner’s Office during the autopsy of Nathan’s body. 5 All thirty-five of the contested
photographs are 8” x 10” color images showing the nature and extent of the burn wounds that
covered Nathan’s body. The photographs, which were taken from varying perspectives, angles,
and distances, are in focus, and the quality of the images is very good. The photographs show
significant portions of Nathan’s body covered in black, charred-looking burns. Several of the
4
State’s Exhibits 6–11.
5
State’s Exhibits 18–46.
6
photographs show burns to Nathan’s perineum and anus, and his genitalia and anus are visible in
those images. The majority of the photographs, however, show the burns covering Nathan’s
legs, feet, back, face, arms, chest, and mouth.
B. Relevance
Maldonado first argues that, because she pled guilty to the charged offense, the
photographs depicting Nathan’s body at the time of his death were wholly irrelevant to any issue
before the jury in Maldonado’s punishment trial. According to Maldonado, the fact that
Nathan’s body was burned severely enough to cause his death was not contested; consequently,
she concludes, the only possible motive for introducing the photographs into evidence was to
inflame the jurors and prejudice them against Maldonado. But this overlooks the very point of a
punishment trial—determining the appropriate punishment for a particular defendant given the
specific facts and circumstances of that defendant’s crime. A punishment trial is the mechanism
by which a jury is allowed to assess the moral blameworthiness of a defendant. Rodriguez v.
State, 203 S.W.3d 837, 844 (Tex. Crim. App. 2006). Maldonado would apparently have us hold
that, by pleading guilty to seriously injuring Nathan, she rendered evidence concerning the
nature and extent of Nathan’s injuries and/or the effects of her crime irrelevant to the assessment
of her moral blameworthiness. While it is true that there is no evidence in the record to suggest
that Maldonado actually inflicted the injuries on Nathan, the crime to which she pled guilty was
injury to a child, and the issue before the jury was the appropriate punishment for that crime.
Maldonado attempted to minimize her blameworthiness by claiming she was fearful of
7
Alexander. It defies logic to suggest that the nature and extent of Nathan’s injuries was
irrelevant to the determination of Maldonado’s punishment.
We find that the pictures at issue in this case, which depicted the severity and extent of
Nathan’s injuries at the time of his death, were helpful to the jury in assessing Maldonado’s
moral blameworthiness for her crime. In short, the photographs were relevant notwithstanding
Maldonado’s guilty plea.
C. The First Montgomery Factor: The Probative Value of the Evidence
[T]he relevance value of a photograph is to show appearance. . . . A crime-scene
photograph or an autopsy photograph is not admissible simply to show the death
of the individual. These photographs are admissible despite the fact, and because,
they show more than the testimony. But that “something more” must be relevant
and helpful to the jury.
Erazo, 144 S.W.3d at 493. The photographs at issue here all provided visual images of the
appearance of Nathan’s body at the time of his death; combined with testimony that the wounds
were two weeks old, the photographs gave the jury stark evidence of what the child might have
endured during those two weeks. This information was clearly helpful to the jury in assessing
Maldonado’s moral blameworthiness for her crime. See Rodriguez, 203 S.W.3d at 844. Further,
the photographs provided context to the witness testimony they accompanied, and, in the case of
the twenty-nine autopsy photographs offered through the medical examiner, they helped the jury
to understand that testimony.
The six objected-to photographs offered into evidence during Cooke County EMS
Paramedic Jacob Blount’s testimony provided the jury visual images of what Blount described
during his testimony—the appearance of the child when EMS personnel arrived. Similarly, the
8
autopsy photographs offered during Dallas County Medical Examiner Dr. Lynn Salzberger’s
testimony provided the jury visual images of the nature and extent of the injuries discovered on
Nathan’s body during Salzberger’s examination. Salzberger used the photographs during her
testimony to illustrate her findings and to elucidate her testimony. By way of example,
Salzberger testified that sixty percent of Nathan’s body was burned, that the majority of those
burns were third-degree burns, and that there was also evidence of some burns that were less
severe than third degree. Salzberger further explained to the jury that third-degree burns are
“full-thickness” burns, which means “that the injury damaged the skin to its full-thickness [sic],
the whole layer of skin, not just the outside layer.” She used the photographs to illustrate the
different types of burns on Nathan’s body and to illustrate the damage caused by a third-degree
burn. One of the autopsy photographs showed Nathan’s anus. Salzberger testified that there was
a burn injury close to the anus and burns on the perineum, and she used this photograph to
illustrate these injuries. Salzberger also testified that there was a burn injury on the base of the
child’s penis at the groin, and she used a photograph to identify that injury to the jury.
Additionally, Salzberger used the photographs to show the jury burn injuries inside Nathan’s
mouth and across the bridge of his nose. Salzberger used the photographs to identify the severe
burns she discovered under Nathan’s arms, down the sides of his chest, and on his feet and toes.
And finally, she utilized a photograph of a portion of the child’s inner neck and one showing his
pharynx to illustrate the unusual burn injuries she discovered down Nathan’s pharynx, into the
top of his esophagus, and below his vocal chords.
9
Salzberger testified that, prior to performing this autopsy, she had never seen burn
injuries of the severity suffered by Nathan that went untreated for as long as Nathan’s did, and
she opined that Nathan would probably have been in “excruciating pain” as a result of his
injuries. She also opined that, upon observing such injuries on a child, any reasonable person
would have immediately sought medical treatment for that child. The contested photographs
precisely fill the role contemplated by the Texas Court of Criminal Appeals in Erazo: “they
show more than the testimony” they accompany, and that something more is “relevant and
helpful to the jury.” Erazo 144 S.W.3d at 493. The photographs were highly probative in
demonstrating the nature and extent of Nathan’s injuries, and these were pivotal considerations
in determining Maldonado’s moral blameworthiness for failing to obtain medical care for
Nathan. This factor weighs heavily in favor of admissibility.
D. The Second Montgomery Factor: The Potential to Impress the Jury in Some
Irrational yet Indelible Way
The second factor we consider in determining whether the probative value of these
photographs is outweighed by the danger of unfair prejudice is the potential of the photographs
to impress the jury in some irrational yet indelible way. The thirty-five contested photographs
are unquestionably gruesome and disturbing, and they undeniably leave an indelible impression.
The photographs offered through both Blount and Salzberger were selected from much larger
pools of available photographs, and Salzberger specifically stated that she removed repetitious
photographs as well as “the ones that were especially gross.”
We agree with Maldonado that these photographs were prejudicial to her defensive
theory during the punishment trial. However, Rule 403 does not mandate the exclusion of all
10
prejudicial evidence; rather, its narrow focus is on that evidence with the potential for unfair
prejudice. Manning v. State, 114 S.W.3d 922, 927–28 (Tex. Crim. App. 2003). Relevant
evidence becomes unfairly prejudicial when it has some detrimental impact above and beyond
proof of the fact or issue that justified its admission in the first place. Id. Here, we cannot agree
with Maldonado that the prejudicial impact of these photographs was unfair. Stated differently,
we find that the impression left on the jury by these photographs, although powerful and likely
emotional, was a completely rational impression under the facts and circumstances of this case.
Maldonado emphasizes the gruesome and disturbing nature of the photographs in her
efforts to convince us that the photographs are unfairly prejudicial. However, the probative
value of a photograph that is gruesome and disturbing to view is not substantially outweighed by
the danger of unfair prejudice if it merely depicts the gruesome reality of the injuries sustained
by the victim. Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995). As the Texas
Court of Criminal Appeals has clearly stated, “A trial court does not err merely because it admits
into evidence photographs which are gruesome.” Id.; see Davis v. State, 313 S.W.3d 317, 331
(Tex. Crim. App. 2010); Drew v. State, 76 S.W.3d 436, 452 (Tex. App.—Houston [14th Dist.]
2002, pet. ref’d) (where relevant to explain injuries, trial court did not err in admitting autopsy
photographs showing (1) victim’s head with top portion of skull removed and brain exposed,
(2) skull with scalp pulled over victim’s face, (3) interior of skull with brain removed, (4) brain
outside skull, and (5) excised windpipe).
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Given the facts of this case, we cannot say that either the autopsy photographs or the
photographs showing the scenes encountered by EMS personnel were likely to impress the jury
in an irrational way. This factor weighs in favor of admissibility.
E. The Third Montgomery Factor: The Time Needed to Present the Evidence
The State took most of one day to present its evidence, and the trial testimony in its
entirety covers in the neighborhood of 300 pages of the reporter’s record. 6 Blount’s direct
examination covers approximately thirty-one pages of the reporter’s record, and his description
of the challenged photographs covers only three of those pages. This is a fairly insignificant
amount of time both in the context of Blount’s testimony as a whole and in the context of the
trial as a whole. Dr. Salzberger’s direct testimony covered approximately forty pages of the
reporter’s record. After establishing her experience and credentials, she used the challenged
photographs throughout her testimony. However, Salzberger used the photographs to elucidate
her findings to the jury. Given the manner in which the photographs were used in this case, the
issue before the jury, and the particular relevance of the photographs to that issue, we cannot
conclude that the amount of time spent presenting this evidence was inappropriate. We find that
this is a neutral factor under these circumstances.
F. The Fourth Montgomery Factor: The Proponent’s Need for the Evidence
The photographs admitted through Blount show Nathan’s state at the time EMS
personnel arrived. Blount told the jury that Nathan was not breathing and described several
6
After dismissing the jury at the end of the first day of testimony, the trial court stated, “[W]e’ve got an hour” and
encouraged the parties to work on the jury charge during that time. Based on the court’s statements to the jury panel
throughout the day, we feel safe inferring that most of this first day was consumed by witness testimony.
12
procedures performed by members of his team in an effort to resuscitate the child. Blount
testified that, as a result of the severity and pervasiveness of Nathan’s burn injuries, his team was
unable to find a vein on either his arms or his legs into which an intravenous needle could be
inserted. According to Blount, after he and his team delivered Nathan to the hospital, their
supervisor released them for the day—approximately three hours early—because they were all so
distraught by Nathan’s injuries and his death.
Also, in one of the photographs introduced through Blount and, notably, without
objection from Maldonado, Nathan is seen wrapped in a kind of gauze, which covered his burned
legs. Blount testified that removing that gauze would have been “excruciatingly painful” if
Nathan were still alive. 7 The photographs demonstrated that Blount’s testimony was not
hyperbole.
The State’s theory of the case was that Nathan suffered for two weeks in Maldonado’s
home when medical treatment was obviously necessary. Maldonado pled guilty to injuring
Nathan by failing to seek medical attention for him. The State asked the jury to assess
Maldonado’s punishment based on the suffering endured by Nathan. Salzberger testified that the
injuries were so significant that any reasonable person would have sought medical treatment
immediately. She also opined that Nathan could have survived with prompt treatment. Visual
evidence of the extent of the injuries was important to illustrate Salzberger’s testimony that the
wounds would have been “very, very painful.” Based on the circumstances of this case and the
7
As previously noted, EMS personnel could not resuscitate Nathan, and he was declared dead at the hospital.
13
extent of the injuries, we find the State had a legitimate need for this evidence. This factor
weighs in favor of admissibility.
After considering the Montgomery factors, we find that the trial court’s decision to admit
the challenged photographs was within the zone of reasonable disagreement; the trial court did
not abuse its discretion by admitting the photographs. Maldonado’s first point of error is
overruled.
IV. Formalities of the Rule 403 Balancing Test
In Montgomery, the Texas Court of Criminal Appeals held that, when a party asserts an
objection to the admissibility of evidence under Rule 403 of the Texas Rules of Evidence, a trial
court is required to conduct a balancing test to determine whether the probative value of the
challenged evidence is substantially outweighed by the potential of the evidence to have some
unfairly prejudicial effect. Montgomery, 810 S.W.2d at 389. Maldonado complains that the trial
court failed to perform the mandatory Rule 403 balancing test before admitting the challenged
photographs into evidence.
While a trial court must conduct the balancing test when a Rule 403 objection is lodged,
there appears to be no requirement that the court formally conduct the test on the record. See
Nolen v. State, 872 S.W.2d 807, 812 (Tex. App.—Fort Worth 1994, pet. ref’d) (citations
omitted); Houston v. State, 832 S.W.2d 180, 183–84 (Tex. App.—Waco 1992), pet. dism’d,
14
improvidently granted, 846 S.W.2d 848 (Tex. Crim. App. 1993) (per curiam). 8 In the words of
the Second Court of Appeals,
There is no requirement that the trial court announce for the record that it has
conducted and completed the balancing test in its own mind. The fact that a trial
judge made a proper balancing test can be implied from the record. While the
record does not contain a direct discussion by the court of its balancing, we
presume the court did perform the mandatory balancing test.
Nolen v. State, 872 S.W.2d 807, 812 (Tex. App.—Fort Worth 1994, pet. denied) (citations
omitted). We are bound by the precedent of our sister court where, as here, the case has been
transferred to us from that court. See TEX. R. APP. P. 43.1.
The record reveals that the trial court carefully considered Maldonado’s objections to the
photographs after first obtaining the State’s response to the objections raised. It appears from the
record that the trial court examined each of the contested photographs. In overruling
Maldonado’s objections to the six photographs admitted during Blount’s testimony, the court
opined that the jury was entitled to see the extent of the child’s injuries, that each photograph
showed different injuries, and that the photographs would assist Blount in his testimony. Under
these facts and in light of controlling precedent of the Second Court of Appeals, we presume the
trial court performed the mandatory Rule 403 balancing test.
When Salzberger was about to testify using photographs from the autopsy she conducted,
Maldonado objected to State’s Exhibit 46, and then made a separate objection to State’s Exhibits
18–45. State’s Exhibit 46 is an overhead view of Nathan’s body during the autopsy; it shows the
8
See also Swarb v. State, 125 S.W.3d 672, 681–82 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d); Yates v.
State, 941 S.W.2d 357, 367 (Tex. App.—Waco 1997, pet. ref’d); Caballero v. State, 919 S.W.2d 919, 922 (Tex.
App.—Houston [14th Dist.] 1996, pet. ref’d); Duckworth v. State, 833 S.W.2d 708, 710–11 (Tex. App—Beaumont
1992, no pet.).
15
naked child including the demarcation lines of burned and unburned skin. A card is next to the
child with an identifying number corresponding to the autopsy number. The trial court asked if
Salzberger needed the photograph to identify the body; she said she did, because of the
identifying number. The trial court overruled the objection without comment. Maldonado next
objected to State’s Exhibits 18–45. On voir dire, Maldonado asked if Salzberger needed the
photographs to determine the cause of death. Salzberger answered that she did not need them for
that purpose, but that she did need the photographs to explain her findings to the jury. Again, the
trial court asked to see the photographs, and the record indicates they were tendered to the court.
After reviewing them, Maldonado’s objection was overruled without further comment. Under
these facts and, again, in light of controlling precedent, we presume that the trial court conducted
the mandatory Rule 403 balance.
We find no error in the trial court’s failure to conduct an explicit, on-the-record weighing
of the Rule 403 considerations. Maldonado’s second point of error is overruled.
We affirm the trial court’s judgment.
Jack Carter
Justice
Date Submitted: October 8, 2014
Date Decided: December 11, 2014
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