Ford, Frances Rosalez

PD -
ORIGINAL

IN THE TEXAS COURT OF CRIMINAL APPEALS

FRANCES ROZALES FORD

Appellant COURT OF CRIMINAL APPEALS
JUN 2 6 2015
vs.

THE STATE OF TEXAS

Appellee

Fran The Fourth Court of Appeals
Cause No. O4-14-O0025-CR

Appeal FromThe 227th Judicial District Court
Bexas County/ Texas
No. 2011-CR-2986

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FILED IN
uuuh I Uh CRIMINAL APPEALS
JUN 26 2015

Abel Acosta, Clerk

Frances Rozales Ford/ Pro Se
TDCJ-CID # 01916749 / Crain Unit
1401 State School Rd. /
GatesviUe, TX 76599
 STATEMENT REGARDING ORAL ARGUMENT

Appellant hereby waives oral argument due to her pro se

status in this petition for discretionary review (PDR).

Appellant's PDR is self-sufficient to allow the Court to

make an adequate decision relevant to the issues raised here.
 IDENTITY OF PARTIES AND COUNSEL

Pursuant to TEX.R.APP.PRO. 68.4(a)/ the identities of the

parties and counsel are as follows:

TRIAL JUDGE:

HON. DICK ALCALA/
Senior District Judge sitting by assignment/
C/O Fourth Administrative Judicial Region/
100 Dolorosa St./
San Antonio/ Texas 78205

APPELLANT/PETITIONER:
Frances R. Ford/ pro se
TDCJ-CID # 01916749
Christina Melton Crain Unit
1401 State School Rd.,
Gatesville, TX 76599

TRIAL COUNSEL:

MONICA GUERRERO
5150 Broadway/ Suite 114
San Antonio, TX 78209

STATE OF TEXAS:

SUSAN D. REED, DISTRICT ATTORNEY
BEXAR COUNTY, TEXAS
DAVID WARREN HENDERSON and ERIC JOHN FUCHS,
Assistant District Attorneys
Paul Elizondo Tower,
101 Nueva St. Suite 310,
San Antonio, TX 78204

COUNSEL ON DIRECT APPEAL:

MICHAEL D. ROBBINS
Assistant Public Defender
Paul Elizondo Tower,
101 W. Nueva St- Suite 310
San Antonio, TX 78704

l i
 TABLE OF CONTENTS
TABLE OF CONTENTS : iii

STATEMENT REGARDING ORAL ARGUMENT i

IDENTITY OF PARTIES AND COUNSEL ii

INDEX OF AUTHORITIES iv

STATEMENT OF THE CASE 1

STATEMENT OF PROCEDURAL HISTORY. .1

GROUNDS FOR REVIEW. 2

ARGUMENT. . 3

1. Whether the court of appeals erred in rejecting
Appellant's issues related to the trial court's
rulings relevant to the [jury view] of the two
crash vehicles involved in the accident 3

2. Whether the jury view of the two crash vehicles
was more prejudicial than probative ••*• 3

DEFENSE OBJECTIONS • 3

JURY VIEWS, STANDARD OF REVIEW. 4

THE 403 RULE ERROR 6

APPLY THE SHUFFIELD FACTORS 8

CONCLUSION 9

PRAYER -. 10

CERTIFICATE OF SERVICE . . 10

ill
 INDEX OF AUTHORITIES

Jones v. State, 843 S.W.2d 487 (Tex .Crim. App . 1992) 4

Martinez v. State, 327 S.W.3d 727 (Tex.Crim.App. 2010) .4

Mauricio v. State, 153 S.W-3d 389 (Tex.Crim.App. 2005) 4,5,6

Oprean v. State, 201 S.W.3d 724 (Tex.Crim. App. 2006) 7
Sanders v. State, 422 S.W.3d 809 (Tex.App.-Dallas 2014, no pet.)
7

Shuffield v. State, 189 S.W.3d 782 (Tex.Crim.App. 2006) 7,8

IV .
 STATEMENT OF THE CASE

This was a trial on punishment only, following a guilty

plea to the jury. Appellant ("Ford") was charged by indictment

with the offense of felony murder, TEX.PENAL CODE § 19.02(b)(3),

Cause No. 2011-CR-2986). (CR,12). A jury was worn (RR2, 175),

and Ford pleaded guilty. (RR 3, 10). Ford elected that the jury

assess punishment. (CR, 115). Following the presentation of

evidence and argument of counsel, the jury found Ford guilty

of murder, as directed by the trial court, and assessed a LIFE

sentence. (CR, 125-126; RR 5, 41-42). The trial court certified

Ford's right to appeal. (CR, 118). Notice of Appeal was timely

filed. (CR, 130, 138). The trial court appointed the Appellate

Public Defender's Office of Bexar County to represent Ford.

(CR, 136). The appellate brief was timely filed.

STATEMENT OF PROCEDURAL HISTORY

On April 1, 2015, the Fourth Court of Appeals affirmed

the judgment with a modification to delete the assessment of

attorney's fees. A copy of the judgment is attached as Appendix

A.

Ford asked this Court for an extension of time to file

her PDR. The extension was granted until June 30, 2015. Ford

has placed this PDR in the United States Mail service on June

29, 2015. Therefore, this PDR is timely.

(1)
 GROUNDS FOR REVIEW

1. Whether the court of appeals erred in rejecting
Appellant's issues related to the trial court's
rulings relevant to the [jury view] of the two
crash vehicles involved in the accident.

Whether the jury view of the two crash vehicles
was more prejudicial than probative.

GROUND ONE: The trial court erred accordingly when it overruled

Appellant's objection to the jury view of the vehicles involved

in the accident, because there was no assurance that the vehicles

did not change in appearance between the time of the accident

and the time of the jury view. (RR 3, 7).

GROUND TWO: The trial court erred when it overruled Appellant's

objection to the jury view of the vehicles involved in the car

accident, because the prejudicial effect of the jury view

[substantially] outweighed its probative value. (RR 3, 7).
 ARGUMENT

Whether the court of appeals erred in rejecting
Appellant's issues related to the trial court's
rulings relevant to the [jury view] of the two
crash vehicles involved in the accident.

Whether the jury view of the two crash vehicles
was more prejudicial than probative.

These two grounds for review are argued together, with

sub-points, because they both apply to the same set of facts.

On December 10, 2013, six days prior to jury selection,

the State filed a belated Notice of Intent to Have the Jury

View Evidence Outside the Courtroom. (CR, 113-114). The notice

stated that the jury view of the two vehicles would be "highly

probative to the crash dynamics," and that [no] photos were

available "showing the vehicles as the would have been positioned

heading into impact with each other." The proposed jury view

was to be held in the closed portion of South Main Avenue ,

between the Bexar County Courthouse and Justice Center.

The trial court conducted a hearing on the notice, but

[after] the jury was selected and prior to the presentation

of any evidence. The hearing was held outside the presence of

the jury.

DEFENSE OBJECTIONS TO THE JURY VIEW

Ford's attorney raised two objections relevant to the jury

view: (1) it cannot be ascertained how the vehicles appeared

prior to the crash, and their appearances have changed in the

three years (plus) since the crash (RR3, 5-6); (2) the proposed

(3)
view "shows unfair prejudice to [Ms. Ford] as opposed to the

probative value." (RR 3, 5-6).

The trial court overruled the defense objections. (RR 3,

7). During the actual trial, the jury was admonished by the

court regarding the view of the staged vehicles. The jury was

then taken outside the courtroom to view the vehicles. Defense

counsel did not renew her objection, but stood silent, and did

not waive the objection by saying, "No objection." (RR 3, 88-

89) .

JURY VIEWS, STANDARD OF REVIEW

The term "view," as understood in law, refers to the act

or process by which the trier of fact ventures forth to observe

places or objects that are material to litigation, but that

cannot reasonably be brought, or satisfactorily reproduced,

within the courtroom. If the trier of fact is a jury, the [view]

is properly termed a "jury view." Mauricio v. State, 153 S.W.3d

389, 392 (Tex.Crim.App. 2005). The decision whether to grant

or deny a jury view rests within the sound discretion of the

trial court. Id. at 393 (citing Jones v. State, 843 S.W.2d 487,

499 (Tex.Crim.App. 1992)). A court abuses its discretion when

its ruling does not fall within the zone of reasonable disagree

ment. Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App.

2010).

In exercising its discretion regarding a jury view, the

trial court "must consider the totality of the circumstances

of the case, but not limited to, the timing of the request for

(4)
the jury view, the difficulty and expense of arranging it, the

importance of the information to be gained by it, the extent

to which the information has been or could be secured from more

convenient sources (e.g., photographs, videotapes, maps, or

diagrams), and the extent to which the place or object to be

viewed may have changed in appearance since the controversy

began." Mauricio, 153 S.W.3d at 393. The trial court must also

implement appropriate safeguards to insure fundamental fairness

to the accused, as well as to protect the trial's truth-finding

function. Id., n.3.

THERE WAS OTHER, MORE RELIABLE EVIDENCE USED THAT WAS MORE CLEAR
AND [ACCURATE] THAN THE [STAGED VEHICLES VIEWED BY THE JURY.

The accident investigator in this case was SAPD Sergeant

Scott Foulke. Sergeant Foulke used a Sokkia Total Station. (RR

3, 78). This particular device is a robotic measuring system

that permits accurate measurements of an accident scene. It is

accurate to within l/16th of an inch from a mile away. (RR 3,

79). This device is similar to surveying equipment, and allows

the user to create a precise scaled diagram. (RR 3, 77). Sergeant

Foulke's scaled diagram was admitted into evidence without any

objections from either side. (RR 3, 81; RR 6, SX20). The diagram,

plus Sergeant Foulke's testimony, provided authentic crash scene

dynamics immediately after the crash itself. (RR 6, SX17). The

two actual vehicles, hauled to the viewing site at the courthouse

(more than three years after the fact) and staged for the jury

view in broad daylight, were not authentic conditions that by

any means replicated U.S. 281 at night, and were certainly not

(5)
CAN THIS COURT REASONABLY CONCLUDE THAT THE TWO VEHICLES HAD NOT
[CHANGED] IN THE 38 MONTHS [AFTER] THE CRASH THAT OCCURRED EARLY
IN THE MORNING OF OCTOBER 14, 2010)? (RR 3/16).

Among the factors a court should consider in exercising

its discretion in permitting a view is the extent to whcih the

item viewed may have changed since the time the controversy

began. Mauricio, 153 S.W.3d at 393. This was one of the two

objections by Ford as to the jury view. (RR 3, 5-8). Here,

the controvery began on October 14, 2014. (RR 3, 16); the jury

view occurred over three years [afterwards] on December 17, 2013.

(RR 3, 1, 88-89)). There is no evidence describing how the two

vehicles looked during the jury view. There are 11 photographs

in evidence showing the vehicles on the [night] of the accident.

(RR 6, SX4-SX11, SX16 & SX17)- versus the [daylight] jury view.

These photographs, without exception, show that the violence

of the crash caused the vehicles to partially disintegrate.

Glass, metallic debris, and even a tire from one vehicle were

strewn all over the vicinity, including between the two vehicles.

This is apparent in State's Exhibit 17, which shows a large

debris field. This large debris filed could not (and was not)

reconstructed for the jury view. Even if both vehicles could

have remotely been preserved (without intention alteration),

they could not have looked like they did in the actual crash

scene photographs versus the [staged] jury view.

THE PREJUDICE HERE VERSUS THE PROBATIVE VALUE OF THE JURY VIEW

A. Rule 403 Error

Admission of evidence over a Rule 403 objection is reviewed

(6)
on an abuse of discretion standard. A court abuses its discretion

when its ruling falls outside the zone of reasonable disagree

ment. Oprean v. State, 201 S.W.3d 724, 726 (Tex.Crim.App. 2006).

Additionally, error may not be predicated on a ruling admitting

evidence unless a [substantial] right of the party is affected,

and unless the party timely makes a proper objection. TEX.R.EVID.

103(a).

TEX.R.EVID. 403 provides as follows:

Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues,
misleading the jury, or by considerations of undue
delay, or needless presentation of cumulative evidence.

The appellate courts will consider four nonexclusive factors

in considering whether the probative value of evidence is sub

stantially outweighed by the danger of unfair prejudice: (1)

the probativeness of the evidence; (2) the potential of the

evidence to impress the jury in some irrational , but neverthe

less indelible way; (3) the time the proponent needs to develope

the evidence; and (4) the proponent's need for the evidence.

Shuffield v. State, 189 S.W.3d 782, 787 (Tex.Crim.App. 2006),

cert, denied, 549 U.S. 1056)2006). TEX.CODE CRIM.PRO. art. 37.07,

§ 3(a) governs the admission of punishment evidence. However,

Rule 403 also applies at the punishment phase of a trial, and

otherwise admissible punishment evidence may still be excluded

under the rule. Sanders v. State, 422 S.W.3d 809, 814 (Tex.App.-

Dallas 2014, no pet.).

(7)
APPLYING THE FOUR SHUFFIELD FACTORS TO THE ISSUE HERE

When the four Shuffield factors are applied here, it is

certain that the trial court abused its discretion by overruling

Ford's objection to the jury view. While it may be said that

the jury view was probative of the conditions of the two vehicles

some [three] years and two months [after] the accident. However,

that does not translate into probativeness of any trial issue.

According to the Notice of Intent, the State's reasons for the

view was that it was "highly probative of crash dynamics, and

no physical pictures were available [showing] the vehicles as

they would have been positioned heading into the impact." (CR,

114) .

The actual reason for the jury view was to permit the jury

to look at the vehicles in their post-crash state. This was

not the actual condition of the vehicles after the crash. Post-

damage was inflicted on . the vehicles in order to removed the

deceased in one vehicle. That can be seen in State's Exhibit

17, a color photo of the vehicles at the site of the accident.

However, the view of the hulks "in the flesh" had the tendency

(and indeed, did) indelibly impress upon the jury the violence

necessary to achieve the damage. This tendency was irrational

because [what] the jury saw was not the actual immediate results,

or the [pre]-crash vehicles. The results were available in the

in the form of the multiple photographs already in evidence.

Finally, the record is silent on how long the jury view

took, and there is no way to apply the [third] element in this

(8)
case. Certainly, the State had no need at all for the jury view.

Sergeant foulkes described the actual crash dynamics at length

and in remarkable detail. (RR 3, 77-88). His expertly scaled

diagram and the various photographs of the aftermath spoke a

volume to crash dynamics. The staged jury view simply did not.

The trial court erred in overruling the defense objection to

the jury view.

Conclusion

The Shuffield factors weigh heavily in favor of Ford. The

error argued above was non-constitutional. Therefore, the error

is reversible only if this Court determines that Ford's rights

were substantially effected. TEX.R.APP.PRO. 44.2(b). It can

reasonably concluded that the jury view had a substantial, indeed

overwhelming influence, because the jury's setencing was assessed

at LIFE. The unnecessary jury view of the [gruesome],emotionally

charged remains of the two vehicles clearly, indelibly insinuated

itself into the minds of the jurors and substantially contributed

to the verdict of LIFE. This judgment must be reversed and a

new punishment trial should be ordered. TEX.CODE CRIM.PRO. art.

44.29(b).

(9)
 PRAYER

Ford respectfully requests this Court to grant this PDR.

Respectfully submitt

Frances R. Ford, Appellant pro se
TDCJ-CID # 01916749 / Crain Unit
1401 State School Rd.,
Gatesville, TX 76599

Certificate of Service

I hereby certify that I have mailed a carbon copy of the

above PDR to the parties noted in the Parties and Counsel, by

placing the same in the United States Mail, first-class post

age prepaid, on this the 29th day of June, 2015.

*^^A
Frances R. Ford, Appellant

(10)
 APPENDIX A.

COURT OF APPEALS" OPINION

FORD v. STATE, No. 04-14-00025-CR,(April 1, 2015)
 Jfourtij Court of Appeal*
H>an Antonio, GTexag

MEMORANDUM OPINION

No. 04-14-00025-CR

Frances Rosalez FORD,
Appellant

v.

The STATE of Texas,
Appellee

From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2011CR2986
Honorable Dick Alcala, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice

Delivered and Filed: April 1, 2015

AFFIRMED AS MODIFIED

Frances Rosalez Ford pled guilty to the charge of felony murder and was sentenced to life

imprisonment. On appeal, Ford contends the trial court erred in allowing a jury view of the

vehicles involved in the automobile collision resulting in the complainant's death. Ford also

challenges the assessment of attorney's fees against her. We modify the judgment to delete the

assessment of attorney's fees, and we affirm the judgment as modified.
 04-14-00025-CR

Background

Ford was driving the wrong way on the northbound lanes of a highway when she collided

with a vehicle driven by Lawrence Belcher. Belcher died at the scene. Ford was taken to the

hospital. The blood sample drawn by the hospital showed Ford's blood alcohol content to be .279,

while the sample drawn three hours later at the request of law enforcement showed her blood

alcohol content to be .19. Because Ford had two prior DWI convictions, she was charged with

felony murder, with the third DWI being the underlying felony.1 Ford pled guilty, and a jury

assessed Ford's sentence at life imprisonment. Ford appeals.

Jury View and Unfair Prejudice

In her first two issues, Ford contends the trial court erred in allowing the jury to view the

vehicles involved in the collision. At trial, Ford objected to the jury view on two grounds: (1) the

jury view was unduly prejudicial; and (2) the vehicles had been at the impound lot for three years

and their condition had changed. The State responded the photographs taken at the scene did not

adequately show the damage to the vehicles, and the jury needed to view the manner in which the

vehicles were positioned at the time of the collision to understand "how the impact happened."

The State explained the vehicles separated after impact, so their position at the time of impact was

not shown in the photographs taken at the scene. The State further explained the vehicles would

be brought to the courthouse, and little time would be needed for the jury view. The State did not

anticipate any questions being asked while the jury viewed the vehicles, but the jury would quickly

walk around the vehicles to view the damage. The State argued it would not be "unduly prejudicial

1 A person commits the offense of felony 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 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. Tex. Penal Code Ann. § 19.02(b)(3) (West 2011).

-2-
 04-14-00025-CR

to see what type of damage was actually caused — that caused this individual to be killed." The

trial court overruled Ford's objections.

1. Jury View During Trial

After several other witnesses who saw Ford driving or the resulting collision testified,

Sergeant Scott Foulke testified regarding the steps taken during the investigation ofthe scene, and

a diagram was introduced into evidence showing the area in which the impact was determined to

have occurred and the location of the vehicles after the collision. The investigation did not show

that either of the vehicles braked prior to impact. Sergeant Foulke stated that the car traveling

north would have reduced visibility because of a hill and a curve. Sergeant Foulke estimated that

the car traveling in the right direction would have had approximately 2.8 to 3.2 seconds to react.

The State then approached the bench and requested the jury view. The trial court instructed the

jury:

THE COURT: All right. Okay.
Members of the jury, at this time, we're going to take you outside. The
bailiffs — you are to follow them and stay with them at all times to do what's called
a jury view of the vehicles.
During that time, you are to observe the vehicles once we get outside.
You're not to converse or comment at all with each other or with anyone else for
that matter while you're doing that. Just make your view. Don't — don't touch
anything. Just view it. And when you've completed that, then you'll be brought
back in.

2. Jury View

"[T]he question of whether to grant or deny a request for a jury view rests 'within the trial

court's [sound] discretion.'" Mauricio v. State, 153 S.W.3d 389, 393 (Tex. Crim. App. 2005)

(quoting Jones v. State, 843 S.W.2d 487, 499 (Tex. Crim. App. 1992)). A trial court abuses its

discretion if it acts without reference to any guiding rules or principles. Lylesv. State, 850 S.W.2d

497, 502 (Tex. Crim. App. 1993); Reyes v. State, 21A S.W.3d 724, 729 (Tex. App.—San Antonio

-3-
 04-14-00025-CR

2008, pet. ref d). A trial court does not abuse its discretion unless its ruling "falls outside the zone

of reasonable disagreement." Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002).

In exercising its discretion to grant or deny a request for a jury view, the trial court must

consider the totality of the circumstances of the case, including, but not limited to: (1) the timing

of the request for the jury view; (2) the difficulty and expense of arranging it; (3) the importance

of the information to be gained by it; (4) the extent to which that information has been or could be

secured from more convenient sources {e.g., photographs, videotapes, maps, or diagrams); and (5)

the extent to which the place or object to be viewed may have changed in appearance since the

controversy began. Mauricio, 153 S.W.3d at 393. In addition, the trial court must provide

opposing counsel an opportunity to be heard on the question. Id.

With regard to the timing of the request, the State filed a notice of its intent to have the jury

view evidence outside the courtroom on December 10, 2013. Before trial commenced on

December 17, 2013, the trial court considered and granted the State's motion. Therefore, the

record reflects that the request for the jury view was made in a timely fashion. In addition, the

vehicles were brought to the courthouse; therefore, the arranging ofthe jury view was not difficult,

and the trial court could have concluded the jury view would be quick. In responding to defense

counsel's objections, the State explained the importance of the information to be gained, asserting

the photographs taken at the scene did not adequately show the damage to the vehicles or the

manner in which the vehicles collided. Finally, although defense counsel asserted the vehicles had

been at the impound lot for three years, defense counsel did not establish that the condition of the

vehicles had changed other than with regard to possible dust and fingerprints. Accordingly, based

on the record presented, we cannot conclude the trial court abused its discretion in granting the

jury view.

-4-
 04-14-00025-CR

3. Unfair Prejudice

Ford also objected that the jury view would be unduly prejudicial. The State contends this

court should not consider whether the jury view should be excluded under Rule 403 as a separate

issue; however, the State cites no support for its contention. In the Houston court's decision in

Mauricio, the appellant also raised a Rule 403 issue. See Mauricio v. State, 104 S.W.3d 919, 920

n.l (Tex. App.—Houston [14th Dist.] 2003), aff'd, 153 S.W.3d 389 (2005). The Houston court

explained that it was not addressing the Rule 403 issue because it was not adequately briefed. Id.

Because we are not convinced that a Rule 403 objection to a jury view cannot be made in addition

to an objection based on the law regarding jury views, we address Ford's issue.

Rule 403 of the Texas Rules of Evidence provides, in pertinent part, "Although relevant,

evidence may be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice." Tex. R. Evid. 403. In conducting a Rule 403 analysis, the following factors are

considered: (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 v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004). "Evidence

is unfairly prejudicial when it has 'an undue tendency to suggest that a decision be made on an

improper basis.'" Pawlak v. State, 420 S.W.3d 807, 809 (Tex. Crim. App. 2013) (quoting

Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (op. on reh'g)). "All evidence

is prejudicial to one party or the other — it is only when there is clear disparity between the degree

of prejudice of the offered evidence and its probative value that Rule 403 is applicable."

Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012). Similar to a trial court's ruling

on jury views, we review a trial court's ruling under Rule 403 for an abuse of discretion. Pawlak,

420S.W.3dat810.

-5'
 04-14-00025-CR

As discussed in reviewing the jury view issue, the probative value ofthe evidence was that

it showed the actual damage to the vehicles and the manner in which the vehicles collided.

Although photographs of the vehicles at the scene were introduced into evidence, the photographs

were dark, and the positioning of the vehicles in the photographs made it difficult to visualize the

manner in which the two vehicles collided. Similarly, although the diagram showed the area of

impact and location of the vehicles after impact, the State wanted the jury to view the vehicles as

they were positioned at impact to understand the nature of the collision and the resulting damage.

Although the record does not reflect the exact amount oftime it took to conduct the jury view, the

vehicles were brought to the courthouse, and the trial court's admonishments made it clear that the

jury view would be quickly completed. Finally, with regard to the potential to impress the jury in

some irrational, yet indelible, way, Ford argues in her briefthat "the view ofthe hulks 'in the flesh'

had the tendency to indelibly impress the jury on the violence necessary to achieve the damage."

The photographs and testimony that were admitted into evidence, however, should already have

impressed upon the jury the violent nature ofthe collision. Viewing the positioning ofthe vehicles

would only enable the jury to visualize the manner in which they impacted. Accordingly, having

considered the Rule 403 factors, we cannot conclude the trial court abused its discretion in

overruling Ford's Rule 403 objection.

4. Harmless Error

Even if we are incorrect in holding the trial court did not abuse its discretion in allowing

the jury view, any error in allowing the jury view would not require a reversal unless it affected

Ford's substantial rights. Tex. R. App. P. 44.2. "A substantial right is affectedwhen the error had

a substantialand injurious effect or influence in determining the jury's verdict." Cole v. State, 330

S.W.3d 253, 280 (Tex. Crim. App. 2010). In conducting this harm analysis, we consider

"everything in the record" including other testimony and evidence before the jury and "the
-6-
 04-14-00025-CR

character of the alleged error and how it might be considered in connection with other evidence in

the case." Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). This court will not

overturn Ford's conviction for non-constitutional error ifthis court, "after examining the record as

a whole, has fair assurance that the error did not influence the jury, or had but a slight effect."

Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

In addition to the evidence that Ford was driving the wrong way down the highway and

subsequent testing showed her blood alcohol content to be .279, far over the legal limit of 0.08,

the jury also heard the testimony of a truck driver who paced Ford's vehicle as he traveled in the

southbound lanes, honking his air horn and flashing his lights in an effort to get Ford's attention

for over three miles. Furthermore, the jury heard evidence that Ford was arrested for a first DWI

in February of 2008. Although Ford could have been convicted of a felony because her ten-year-

old daughter was in the vehicle, she was convicted only of a misdemeanor and placed on probation

in March of 2009. In June of 2008, Ford was arrested for a second DWI, and was also placed on

probation for that offense in August of 2010. Two months later, in October of 2010, she caused

the fatal collision that resulted in Belcher's death.

In addition to the foregoing evidence, the jury also heard Ford's own testimony. Ford

testified that she only had one drink that night and believed someone placed a drug in her drink;

however, the toxicology results did not support her belief. Ford testified she was not aware the

trial court previously ordered her not to drive and offered a series of excuses for the reason her

vehicle did not contain the ignition interlock system the court previously ordered. Because the

jury heard evidence that Belcher had a blood alcohol level of .13, Ford was asked if she believed

the alcohol in Belcher's system contributed to the accident, and she responded that she did although

she did not blame Belcher for the accident. Ford also testified that although she was driving the

wrong way, she believed she was "driving right." Because Ford stated she was requesting
 04-14-00025-CR

leniency, the prosecutor asked, "Ms. Ford, do you acknowledge that you've already been shown

leniency [with regard to the two prior DWI convictions]?" Ford responded, "No."

Having examined the record as a whole, even if we assume the trial court abused its

discretion in allowing the jury view, we have "fair assurance that the error did not influence the

jury, or had but a slight effect." Johnson, 967 S.W.2d at 417. Accordingly, any error by the trial

court in allowing the jury view was harmless.

Attorney's Fees

In her third issue, Ford contends the evidence is legally insufficient to support the trial

court's assessment of attorney's fees against her, noting the record reflects that she had appointed

counsel at trial and on appeal. See Vogt v. State, 421 S.W.3d 233, 246 (Tex. App.—San Antonio

2013, pet. ref d); Smith v. State, 421 S.W.3d 161, 165 (Tex. App.—San Antonio 2013, no pet.)

The State concedes the attorney's fees were improperly assessed. Accordingly, Ford's third issue

is sustained, and the trial court's judgment is modified to delete the assessment of attorney's fees.

Conclusion

The trial court's judgment is modified to delete the assessment of attorney's fees. The trial

court's judgment is affirmed as modified.

Marialyn Barnard, Justice

DO NOT PUBLISH

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