NO. 12-10-00338-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JARON ANTHONY BURTON, § APPEAL FROM THE THIRD
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Jaron Anthony Burton appeals his conviction for aggravated assault with a deadly weapon.
In his sole issue on appeal, Appellant argues that the trial court erred by admitting certain
photographs into evidence at trial. We affirm.
BACKGROUND
Appellant was charged by indictment with the offense of murder, a first degree felony.1
Appellant pleaded “not guilty,” and the case proceeded to a jury trial. On cross-examination,
Appellant testified that on the morning following the incident, law enforcement required him to
remove his clothing and took photographs of him. The State offered these six photographs into
evidence. Appellant’s counsel objected, stating that the photographs were “inflammatory,
beyond any probative value.” The trial court admitted the photographs. Copies of the
photographs in the record depict Appellant’s front torso, back torso, right and left side torsos, and
lower body.2 The copies of the photographs in the record are fairly small and are black and white.
1
See TEX. PENAL CODE ANN. § 19.02 (b)(1), (2), (c) (Vernon 2011).
2
In the last two photographs depicting Appellant’s lower body, it is impossible to determine if the
photographs are of the front and back of his lower body or two photographs of the front or back of his lower body.
At the conclusion of trial, the jury found Appellant guilty of the lesser included offense of
aggravated assault with a deadly weapon, 3 and assessed his punishment at five years of
imprisonment and a $5,000.00 fine.4 This appeal followed.
ADMISSION OF EVIDENCE
In his sole issue on appeal, Appellant argues that the trial court erred by admitting
photographs of him into evidence at trial. More specifically, he contends that the photographs of
him taken by law enforcement on the morning after the incident were not probative regarding any
relevant issue at trial and were inflammatory in nature.
Applicable Law
A trial court's decision to admit or exclude evidence is reviewed for abuse of discretion.
Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). A trial court does not abuse its
discretion as long as its decision to admit or exclude evidence is within the “zone of reasonable
disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on
reh'g). 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. 403.
Under Texas Rule of Evidence 403, a photograph is admissible if it has probative value and
that probative value is not substantially outweighed by the photograph's inflammatory nature.
TEX. R. EVID. 403; Williams v. State, 301 S.W.3d 675, 690 (Tex. Crim. App. 2009); see also
Nadal v. State, No. 14-09-00756-CR, 2011 WL 2638175, at *8 (Tex. App.–Houston [14th Dist.]
July 7, 2011, no. pet. h.). “Rule 403 favors the admission of relevant evidence and carries a
presumption that relevant evidence will be more probative than prejudicial.” Shuffield v. State,
189 S.W.3d 782, 787 (Tex. Crim. App. 2006). Analysis under Rule 403 should include, but is not
limited to, the following factors: (1) how probative the evidence is, (2) the potential of the
evidence to impress the jury in some irrational, but nevertheless indelible way, (3) the time the
3
A person commits the offense of aggravated assault with a deadly weapon if the person commits assault and
uses or exhibits a deadly weapon during the commission of the assault. TEX. PENAL CODE ANN. § 22.02(a)(2) (Vernon
2011). This offense is a second degree felony. TEX. PENAL CODE ANN. § 22.02(b) (Vernon 2011).
4
An individual adjudged guilty of a second degree felony shall be punished by imprisonment for any term of
not more than twenty years or less than two years and, in addition, a fine not to exceed $10,000.00. TEX. PENAL CODE
ANN. § 12.33 (Vernon 2011).
proponent needs to develop the evidence; and (4) the proponent's need for the evidence. Id.
As a prerequisite to presenting a complaint for appellate review, the record must show that
(1) the complaint was made to the trial court (2) by a timely request, objection, or motion (3) that
stated the grounds for the ruling that the complaining party sought from the trial court (4) with
sufficient specificity to make the trial court aware of the complaint, unless the specific grounds
were apparent from the context. TEX. R. APP. P. 33.1(a)(1)(A).
Analysis
On appeal, Appellant contends that the photographs were inflammatory because they
depicted large tattoos that could have led the jury to speculate that Appellant was affiliated with a
gang or involved in illicit behavior. In response, the State argues that Appellant cannot point to
any place in the record showing any improper motive for admitting the photographs nor any
improper arguments by the State. Further, the State contends the photographs were offered to
refute the alleged violent nature and degree of the victim’s actions towards Appellant.
Although Appellant objected to the photographs at trial, he did not specify why he believed
these photographs were inflammatory. As the court of criminal appeals has explained,
[t]he purpose of requiring a specific objection in the trial court is twofold: (1) to inform the trial
judge of the basis of the objection and give him the opportunity to rule on it; [and] (2) to give
opposing counsel the opportunity to respond to the complaint. . . . [A] party must be specific enough
so as to “let the trial judge know what he wants, why he thinks himself entitled to it, and do so
clearly enough for the judge to understand him at a time when the trial court is in a proper position to
do something about it.”
Resendez v. State, 306 S.W.3d 308, 312-13 (Tex. Crim. App. 2009) (quoting Lankston v. State,
827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). Further, when the context shows that a party
failed to effectively communicate his argument, the error will be deemed forfeited on appeal. Id.
Here, Appellant claimed at trial that he killed the victim, Tyrone Price, in self-defense.
According to Appellant’s written statement, Price threatened and “pushed” Appellant. However,
at trial, Appellant alleged that Price hit him in the throat, causing him to fall over some steps. He
also testified that Price pushed him again, causing him to hit a door and shut it. On
cross-examination, the State showed the photographs to Appellant and asked him if he received
any injuries as a result of Price’s conduct. Other than pointing out a “mark” on his back that
resulted from hitting the door, Appellant denied receiving any injuries from Price.
In his objection at trial, however, Appellant did not let the trial court know the basis for his
objection and why he contended these photographs were inflammatory. See id. He never
specified, as he argues here, that the photographs were objectionable because they depicted “large”
tattoos on Appellant’s body that could lead the jury to speculate that he was affiliated with a gang
or involved in illicit behavior. Thus, the trial court was not aware of why Appellant believed the
photographs to be inflammatory. See id. Because Appellant failed to state the grounds for his
objection to the photographs with sufficient specificity to make the trial court aware of his
complaint regarding the tattoos, he has waived this issue on appeal. See TEX. R. APP. P.
33.1(a)(1)(A). Accordingly, Appellant’s sole issue is overruled.
DISPOSITION
The judgment of the trial court is affirmed.
BRIAN HOYLE
Justice
Opinion delivered July 29, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)