Chauncey, Shannon Joe

PD-0985-15

No. PD _____________________

___________________________________________________________

In The Court of Criminal Appeals of Texas

___________________________________________________________

SHANNON JOE CHAUNCEY, APPELLANT

V.

STATE OF TEXAS, APPELLEE

____________________________________________________________

On Appellant’s Petition for Discretionary Review
From the Fourteenth Court of Appeals of Texas
Appeal No. 14-13-00950-CR
On Appeal from the 230th District Court
Of Harris County, Texas
Cause No. 1365315
___________________________________________________________

PETITION FOR DISCRETIONARY REVIEW
FOR APPELLANT, SHANNON JOE CHAUNCEY
___________________________________________________________

Brian M. Middleton
7322 Southwest Freeway, Suite 1980
Houston, Texas 77074
Telephone: (713) 680-3296 July 31, 2015
Facsimile: (713) 680-3242
Texas Bar No. 90001967
Attorney for Appellant
Oral Argument Requested
 Table of Contents

Index of Authorities...........................................................................................................iii

Statement Regarding Oral Argument...............................................................................iv

Statement of the Case......................................................................................................2

Procedural History of the Case.........................................................................................2

Grounds for Discretionary Review: Whether the court of appeals erred in affirming the
trial
court……...…………………………....................................................................................3

Arguments to the Court of Appeals...................................................................................3

The Court of Appeals’ Response to
Appellant’sArguments…………………………………………………………………………..6

Argument in Support of Grounds for Discretionary Review……………………………….12

Appendix A
 INDEX OF AUTHORITIES

Cases
Alami v. State, 333 S.W.3d 881, 890 (Tex. App.—Fort Worth 2011, no pet.)................... 8
Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999) ............................... 7

Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981) ..................................... 6
Gordon v. State, 784 S.W.2d 410, 412 (Tex. Crim. App. 1990) ........................................... 8
Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999) ................................................ 11
Matamoros v. State, 901 S.W.2d 470, 476 (Tex. Crim. App. 1995) ................................... 7
Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009) ............................................. 10
Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995) .......................................... 7
Tennard v. State, 802 S.W.2d 678, 683 (Tex. Crim. App. 1990).................................. 11, 12

Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999) ......................................... 10
Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) ..................................... 12

Rules
Tex. R. App. P. 68.4(c) ....................................................................................................iv
Tex. R. App. P. 66.3(b)………………………………………………………………… 3

iii
 STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Tex. R. App. P. 68.4(c)Tex. R. App. P. 68.4(c), counsel

respectfully requests oral argument. Oral argument would be helpful in the

event this petition for discretionary review is granted. This appeal involves

questions of law, questions of fact, public policy and procedure which

cannot be adequately addressed, analyzed and evaluated through written

communication alone. Oral argument is essential to emphasize the unique

characteristics of these questions and to address the unforeseeable

exigencies arising during the Court’s consideration of this appeal.

iv
 No. PD _______________________

___________________________________________________________

In The Court of Criminal Appeals of Texas

___________________________________________________________

SHANNON JOE CHAUNCEY, Appellant

v.

THE STATE OF TEXAS, Appellee.

___________________________________________________________

On Appellant’s Petition for Discretionary Review
From the Fourteenth Court of Appeals of Texas
Appeal No. 14-13-00950-CR
On Appeal from the 230th District Court
Of Harris County, Texas
Cause No. 1365315

___________________________________________________________

PETITION FOR DISCRETIONARY REVIEW
FOR APPELLANT, SHANNON JOE CHAUNCEY
___________________________________________________________

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:

COMES NOW Appellant, Shannon Joe Chauncey, by and through his

attorney of record, Brian M. Middleton, and files this his petition for

1
discretionary review of the decision of the First Court of Appeals of Texas

in Shannon Joe Chauncey v. State, No. 14-13-00950-CR, slip op. (Tex.

App.–Houston [14th Dist.], June 30, 2015, pet. pending); and would

respectfully show the Court following:

STATEMENT OF THE CASE

The court of appeals erred in affirming the trial court’s decision.

PROCEDURAL HISTORY OF THE CASE

On October 7, 2013, Appellant pled not guilty to charge of felony

murder. (5 R.R. at 15). On October 14, 2013, a jury found Appellant guilty

of the offense of felony murder as charged in the indictment. (9 R.R. at 43).

On October 15, 2013, the jury sentenced Appellant to confinement in the

Institutional Division of the Texas Department of Criminal Justice for a

period of thirty-seven (37) years. (11 R.R. at 44). On October 15, 2013,

Appellant timely filed his notice of appeal. (1 C.R. at 82).

On June 30, 2015, the Court of Appeals affirmed the trial court’s

decision.

2
 GROUND ONE

Review is appropriate, under Tex. R. App. P. 66.3(b), because the
Court of Appeals has rendered a decision which encompasses an
important question of state and federal law, which has not been, but should
be, settled by this Court.

GROUND TWO

Review is proper, under Tex. R. App. P. 66.3 (f), because the Court
of Appeals has so far departed from the accepted and usual course of
judicial proceedings, as to call for an exercise of this Court’s power of
supervision.

ARGUMENTS TO THE COURT OF APPEALS

Point of Error Number One:

The affidavit used to support a search warrant for Appellant’s cell

phone did not allege an offense date and contained conclusory statements.

Thus, the affidavit was inadequate to support the issuance of the search

warrant.

Point of Error Number Two:

State’s exhibits 114 and 115 were photographs of Hollingshead

laying in a hospital bed while wearing a breathing apparatus and a head

brace. Said photographs were essentially victim-impact evidence and were

not relevant to guilt/innocence.

3
Point of Error Number Three:

State’s exhibits 51 and 54 through 59 were 81/2 by 11 inch color

photographs of Shawn Williams, Jr. charred and partially clothed body

inside of Hollingshead’s burned vehicle. The photos were obviously

gruesome and superfluous and should not have been allowed into

evidence as such evidence was unfairly prejudicial.

Point of Error Number Four:

State’s exhibit 63 was a copy of Shay Hollingshead’s medical

records. Said medical records were essentially victim-impact evidence and

were not relevant to guilt/innocence and were unfairly prejudicial during

guilt innocence.

Point of Error Number Five:

State’s exhibit 60 was a color video recording of officers removing

Shay Hollingshead’s limp, partially clothed body from his burned vehicle.

There were numerous other videos admitted showing the pursuit of

appellant and the collision. Exhibit 60 was particularly gruesome and

disturbing. Thus, the trial court erred in not sustaining Appellant’s objection.

Point of Error Number Six:

4
 State’s exhibits 88, 89, 90, 91, and 92 were 81/2 by 11 inch color

photographs showing Shawn Williams, Jr.'s body. State’s exhibit 91 and 93

were particularly gruesome as they showed the interior of Williams skull

and some of Appellant’s internal organs which had been removed.

Because the photos were so gruesome, the trial court erred in allowing the

State to introduce said exhibits.

Point of Error Number Seven:

The prosecutor’s improper comment that Appellant or his expert

witness had failed to offer polygraph results was improper jury argument

and unfairly prejudicial. The trial court provided a general instruction to

disregard the prosecutor’s last comment was inadequate to address the

prosecutor’s improper comment.

THE COURT OF APPEALS RESPONSE

TO APPELLANT’S ARGUMENTS

The Court of Appeals responded to Appellant’s points of error

affirmed Appellant’s conviction.

“A motion to suppress is nothing more than a specialized objection to
the admissibility of evidence and an appellant complaining of the trial
court’s ruling on the motion to suppress must show harm in order to prevail.

5

4
See Tex. R. App. P. 44.2; Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex.
Crim. App. 1981). When objectionable evidence is not offered, however, no
harm results from any error in overruling the motion to suppress because
the ultimate result—the exclusion of the evidence—is the same as if the
motion had been sustained. Galitz, 617 S.W.2d at 952. We have inspected
the entire record and cannot find where the complained-of evidence was
admitted at trial. Although the prosecutor stated that the cell phone records
were pre-admitted in a hearing, the cell phone records were not made an
exhibit and were not introduced at trial. Further, the prosecutor did not call
any witness to testify as to what was found on appellant’s cell phone.
Because the objectionable evidence was never offered at trial, there is
nothing for us to review.
We overrule appellant’s first issue.”

“At trial, Hollingshead testified about the injuries he suffered from the
accident. Hollingshead testified that he woke up in the hospital with a
contraption on his head, a chest plate, and four bars in his skull used to
keep his neck still. He also discussed the extent of his injuries which
included collapsed lungs, broken ribs, a burst spleen, three broken bones
in his vertebra, a broken femur, minor brain damage, and second and third-
degree burns on twenty percent of his body. This testimony was admitted
into the record without objection.

The two photographs of Hollingshead in the hospital were admitted
after he testified about his injuries. Exhibit 114 is a close-up photograph
of Hollingshead lying in a hospital bed. The photograph depicts
6
Hollingshead shirtless, with a neck brace, breathing tube, and bandages
on his body. Exhibit 115 is also a photograph of Hollingshead lying in a
hospital bed and shows several bars set around his head. Nothing is
depicted in the two photographs which was not also included in
Hollingshead’s testimony. See Chamberlain v. State, 998 S.W.2d 230,
237 (Tex. Crim. App. 1999) (noting that color photographs of victim shot
in the face depicted nothing outside of what was included in testimony of
State’s pathologist). The record reflects that only Exhibits 114 and 115
were admitted at trial, even though numerous photographs of
Hollingshead’s injuries were admitted during the punishment phase. The
photographs were relevant to show the damage that resulted from
appellant’s act of evading the police, “an act clearly dangerous to human
life” that caused the complainant’s death. See Tex. Penal Code §
19.02(b)(3).

Because the photographs are not more prejudicial than probative, the
trial court did not abuse its discretion by overruling appellant’s rule 403
objection and admitting them into evidence.

We overrule appellant’s second issue.”

Close-up photographs and photographs taken from different vantage
points add to the jury’s understanding of the condition of the crime scene.
Matamoros v. State, 901 S.W.2d 470, 476 (Tex. Crim. App. 1995).
Photographs permit the jury to examine a scene in detail. See id. Although
the photographs are gruesome and disagreeable to look at, “they depict
nothing more than the reality of the brutal crime committed.” Sonnier v.

7
State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995); see also
Chamberlain, 998 S.W.2d at 237 (“The photographs are gruesome in that
they depict disagreeable realities, but they depict nothing more than the
reality of the brutal crime committed.”). Visual evidence accompanying
testimony is most persuasive and often gives the factfinder a point of
comparison against which to test the credibility of a witness and the validity
of his conclusions. Chamberlain, 998 S.W.2d at 237. The photographs are
powerful visual evidence, probative of various aspects of the State’s theory
of the offense, including the brutality and heinousness of the offense.
Sonnier, 913 S.W.2d at 519. Although the photographs depict the charred
body of the complainant in the burned-out vehicle, the photographs portray
no more than the disturbing consequences of appellant’s felony murder
offense. See Alami v. State, 333 S.W.3d 881, 890 (Tex. App.—Fort Worth
2011, no pet.) (holding that the trial court did not err by admitting post-
collision photograph, showing interior of victim’s vehicle with deceased
victim lying in the passenger seat).

Under these circumstances, we cannot say that the photographs are
more prejudicial than probative. See Chamberlain, 998 S.W.2d at 237. A
trial court does not abuse its discretion merely because it admits into
evidence photographs which are gruesome. Sonnier, 913 S.W.2d at 519;
see also Shavers v. State, 881 S.W.2d 67, 77 (Tex. App.—Dallas 1994, no
pet.) (“The fact that the scene depicted in the photograph is gory and
gruesome does not make the photograph more prejudicial than probative
when the crime scene is gory and gruesome.”). Thus, the trial court did not
abuse its discretion by admitting Exhibits 51, 54, 55, 56, 57, 58, and 59.
8
 We overrule appellant’s third issue.”

The rules applicable to photographs also apply to a videotape.
Gordon v. State, 784 S.W.2d 410, 412 (Tex. Crim. App. 1990). A
videotape allows a jury an overall perspective that is simply not available
from photographs. Matamoros, 901 S.W.2d at 476. While still photographs
offer an isolated and fixed content, a video recording allows a more
panoramic representation of the physical and forensic evidence. Id. Like
the photographs of the burned-out vehicle, the video depicts nothing more
than the reality of the brutal crime appellant committed. See Chamberlain,
998 S.W.2d at 237. Because the videotape is not more prejudicial than
probative, we hold that the trial court did not abuse its discretion by
admitting Exhibit 60.

We overrule appellant’s fifth issue.”

“Because of the nature of the complainant’s death, the autopsy
photographs are gruesome. However, the medical examiner used the
photographs to explain the complainant’s external and internal injuries to
the jury. Under the circumstances of this case, we cannot say that the trial
court abused its discretion in determining that the probative value of the
photographs was not substantially outweighed by the danger of unfair
prejudice.

We overrule appellant’s sixth issue.”
“Because the trial court ruled in appellant’s favor during the guilt-
innocence phase of trial, he did not preserve this error for review.

9
 To the extent appellant contends that the trial court erred by admitting
the medical records into evidence during the punishment phase, we
disagree. When the State sought to admit the medical records into
evidence during the punishment phase, appellant did not state any
objection. Thus, appellant has failed to preserve error for review. See Tex.
R. App. P. 33.1.

We overrule appellant’s fourth issue.”
“In his seventh issue, appellant argues that the trial court erred by
denying his motion for mistrial after the prosecutor made a comment during
her closing statement regarding a polygraph examination.

We review the denial of a motion for mistrial for an abuse of
discretion. Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999).
We view the evidence in the light most favorable to the trial court’s ruling,
considering only those arguments before the court at the time of the ruling.
Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). A trial court
does not abuse its discretion when its decision is within the zone of
reasonable disagreement. See id.

At trial, appellant called an expert witness, Dr. Bethany Brand, to
testify as to her opinion regarding appellant’s mental condition. Dr. Brand
stated that she conducted several tests on appellant to form her opinion
that appellant suffered from post-traumatic stress disorder and
polysubstance dependence. During closing arguments, the prosecutor
made the following comment: “Dr. Brand told us about tests after tests after
10

15
tests, right? That she chose. She chose them. One test that we never
heard about her giving the defendant to make sure he wasn’t making this
up, polygraph. Never.” Appellant’s counsel immediately objected to the
improper comment and the trial court sustained the objection. Appellant’s
counsel asked for an instruction for the jury to disregard the comment. The
trial court promptly gave an instruction, stating the “[j]ury will be instructed
to disregard the last statement from the prosecutor.” Appellant’s counsel
then moved for a mistrial, which the trial court denied.

A mistrial is an appropriate remedy in “extreme circumstances” for a
narrow class of highly prejudicial and incurable errors. Id. A mistrial halts
trial proceedings when the error is so prejudicial that expenditure of
further time and expense would be wasteful and futile. Id. A trial court may
properly exercise its discretion to declare a mistrial if an impartial verdict
cannot be reached, or if a verdict of conviction could be reached but
would have to be reversed on appeal due to an obvious procedural error.
Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). Whether an
error requires a mistrial must be determined by the particular facts of the
case. Id.

It is well established that the existence and results of a polygraph
examination are inadmissible for all purposes. Tennard v. State, 802
S.W.2d 678, 683 (Tex. Crim. App. 1990). However, “Tennard stands for the
proposition that when a polygraph is actually administered, the existence of
the polygraph test and results thereof are inadmissible for all purposes.”
Garcia v. State, 907 S.W.2d 635, 638 (Tex. App.—Corpus Christi 1995),

11

16
aff’d, 981 S.W.2d 683 (Tex. Crim. App. 1998). Here, the prosecutor did not
state that appellant actually took a polygraph examination, nor was it
inferred that he refused to take one. The prosecutor only stated that Dr.
Brand chose not to give appellant a polygraph examination. No results of
any polygraph test were revealed to the jury. Thus, the trial court did not err
by denying appellant’s motion for mistrial.

Furthermore, in most instances, an instruction to disregard an
improper remark will cure any error. See Wesbrook v. State, 29 S.W.3d
103, 115 (Tex. Crim. App. 2000). Here, the trial court promptly instructed
the jury to disregard the prosecutor’s remark regarding the lack of a
polygraph examination. We presume that the jury followed the trial court’s
instruction to disregard the remark. Id. at 116.

We overrule appellant’s seventh issue.”

ARGUMENT IN SUPPORT OF GROUNDS
FOR DISCRETIONARY REVIEW

The Fourteenth Court of Appeals has stretched and misapplied this

Court’s ruling in Tennard v. State, 802 S.W.2d 678, 683 (Tex. Crim. App.

1990). The Fourteenth Court of Appeals held, “Here, the prosecutor did not

state that appellant actually took a polygraph examination, nor was it

inferred that he refused to take one. The prosecutor only stated that Dr.

12
Brand chose not to give appellant a polygraph examination. No results of

any polygraph test were revealed to the jury. Thus the trial court did not err

by denying appellant’s motion for mistrial.” Then in utter contradiction the

Fourteenth Court of Appeals held “Here, the trial court promptly instructed

the jury to disregard the prosecutor’s remark regarding the lack of a

polygraph examination.” Thus, the Fourteenth seems to reason that it was

not an error for the prosecutor to state that Appellant did not take a

polygraph but the trial court was correct in instructing the jury to disregard

the prosecutor’s comment that he did not take a polygraph.

In Tennard, this court held that “Where the defense insists on a

mistrial, the sufficiency of an instruction to disregard polygraph evidence

generally depends on whether the results of the exam were revealed to the

jury.” In the instant case, the prosecutor was clearly trying to create the

impression that Appellant took a lot of test but did not take a polygraph

test. The prosecutor was clearly telling the jury that Appellant did not take a

polygraph examination which left the impression that Appellant could have

taken a polygraph examination for the jury to consider. The prosecutor’s

statement was worse than mentioning that a polygraph examination was

administered without revealing the results, because it left the impression

13
that Appellant could have taken a polygraph examination and presented it

to the jury but elected not to do so.

IV.

WHEREFORE, PREMISES CONSIDERED, Appellant, Shannon Joe
Chauncey, prays that the Court grant the Petition for Discretionary Review
for Appellant, order briefing on this cause, and set it for submission at the
earliest possible date. Moreover, upon submission and review of the
appellate record and the briefs and arguments of counsel, the Court find
reversible error in the judgments of both the Fourteenth Court of Appeals in
appeal number 14-13-00950-CR and of the 230th District Court of Harris
County, Texas in cause number 1365315. In accordance with this Court’s
finding of reversible error, appellant also requests that the Court then issue
its opinion and judgment reversing the judgments of the Fourteenth Court
of Appeals and the 230th District Court of Harris County, Texas, remand
this cause to the 230th District Court, assess all costs of the appeal against
Appellee, and order execution of its judgment in accordance with its
opinion.

Respectfully submitted,

/s/ Brian M. Middleton___
Brian M. Middleton
7322 Southwest Freeway, Suite 1980
Houston, Texas 77074
Telephone: (713) 680-3296
Facsimile: (713) 680-3242
Email: attorney@middletonlawfirm.com
Texas Bar No. 90001967

14
Attorney for Appellant

CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3) of Texas Rules of Appellate Procedure, the
undersigned hereby by certifies that the foregoing document contains 3291
words.

/s/ Brian M. Middleton
Brian M. Middleton

CERTIFICATE OF SERVICE
In accordance with Tex. R. App. P. 9.5, I, Brian M. Middleton, certify
that a true and correct copy of the foregoing Petition for Discretionary
Review has been served, by U.S. Mail upon the attorney of record for the
State of Texas, the Harris County District Attorney, 1201 Franklin, Houston,
Texas 77002 on 30th day of July, 2015.
/s/ Brian M. Middleton
Brian M. Middleton

15
APPENDIX
Affirmed and Memorandum Opinion filed June 30, 2015.

In The

Fourteenth Court of Appeals

NO. 14-13-00950-CR

SHANNON JOE CHAUNCEY, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1365315

MEMORANDUM OPINION

Appellant Shannon Joe Chauncey appeals his conviction for felony murder.
A jury found appellant guilty and the trial court sentenced him to thirty-seven years
in prison. In several issues on appeal, appellant contends that the trial court erred
by denying his motion to suppress, admitting various photographs and a videotape,
and denying his motion for mistrial. We affirm.
 BACKGROUND

On October 19, 2012, appellant and his girlfriend, Jennifer Jenkins, were
shoplifting at various stores in Baytown, Texas. At 9:03 p.m., police officers were
dispatched to the San Jacinto Mall because a caller reported that there was a
possible theft at Sears. The caller observed two suspects steal merchandise from
Sears and travel to Academy. Police officers arrived at Academy and Detective
Scott Vice entered the store to look for the two suspects. Detective Vice observed
Jenkins gathering merchandise and taking it into a dressing room. Appellant exited
the store by himself and walked to his Ford F-150 truck parked outside in the
parking lot. Appellant began slowly driving around searching for police vehicles
and made several loops around the parking lot. He then pulled up to the exit doors
of Academy, flashed his lights, and Jenkins exited the store. At that time,
undercover officers in unmarked vehicles surrounded appellant’s truck. Appellant
reversed his truck into one of the officer’s vehicles and pushed it back so that he
could escape. The officers immediately exited their vehicles and drew their
weapons. Appellant drove around the officers, peeled through the parking lot,
jumped the curb, and ploughed through a ditch.

Marked patrol cars began pursuing appellant and Jenkins on Garth Road for
several miles. The police deployed a spike strip across the road to deflate
appellant’s tires and stop his truck. Appellant then struck a Ford Focus at the
intersection of Garth Road and Rollingbrook. The Ford Focus was stopped at the
intersection, waiting for a red light to change. An accident reconstructionist
testified that appellant was traveling between 79 and 97 miles per hour when he hit
the Ford Focus. Shay Hollingshead was the driver of the Ford Focus and the
complainant, Shawn Williams, was in the passenger seat.

Both vehicles immediately burst into flames. Appellant and Jenkins jumped

2
out of the truck and ran, but were quickly apprehended by the police. Officers and
bystanders pulled Hollingshead out of the driver’s seat but because of the flames,
they did not see that the complainant was in the passenger seat. Hollingshead was
transported to a hospital to be treated for extensive injuries from the collision. The
complainant was killed instantly upon impact.

Appellant was indicted for felony murder. Appellant pleaded not guilty. The
case proceeded to trial and the jury rendered a guilty verdict on October 15, 2013.
The jury assessed punishment at thirty-seven years in prison.

ISSUES AND ANALYSIS

In seven issues, appellant contends that (1) the trial court erred by denying
his motion to suppress the search warrant of his cell phone; (2) the trial court erred
by admitting photographs of Hollingshead in the hospital; (3) the trial court erred
by admitting photographs of the accident scene; (4) the trial court erred by
admitting Hollingshead’s medical records; (5) the trial court erred by admitting a
video of the officers pulling Hollingshead from the burning vehicle; (6) the trial
court erred by admitting autopsy photographs; and (7) the trial court erred by
denying his motion for a mistrial based on a comment the prosecutor made during
her closing statement.

I. Motion to Suppress

In his first issue, appellant contends that the trial court erred by denying his
motion to suppress evidence found on his cell phone because the affidavit used to
support the search warrant contained conclusory statements and did not allege an
offense date.

A motion to suppress is nothing more than a specialized objection to the
admissibility of evidence and an appellant complaining of the trial court’s ruling

3
on the motion to suppress must show harm in order to prevail. See Tex. R. App. P.
44.2; Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981). When
objectionable evidence is not offered, however, no harm results from any error in
overruling the motion to suppress because the ultimate result—the exclusion of the
evidence—is the same as if the motion had been sustained. Galitz, 617 S.W.2d at
952. We have inspected the entire record and cannot find where the complained-of
evidence was admitted at trial. Although the prosecutor stated that the cell phone
records were pre-admitted in a hearing, the cell phone records were not made an
exhibit and were not introduced at trial. Further, the prosecutor did not call any
witness to testify as to what was found on appellant’s cell phone. Because the
objectionable evidence was never offered at trial, there is nothing for us to review.

We overrule appellant’s first issue.

II. Photographs and Videotape

In several issues, appellant contends that the trial court erred by admitting
into evidence several photographs and a videotape. Specifically, appellant
complains of the following: (1) two photographs of Hollingshead in the hospital;
(2) seven photographs of the burned-out Ford Focus with the complainant inside at
the accident scene; (3) a videotape of police officers pulling Hollingshead out of
his vehicle; and (4) five autopsy photographs.

Rule 403 provides that although 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 consideration of undue delay,
or needless presentation of cumulative evidence. Tex. R. Evid. 403. Several factors
may be considered in determining whether the danger of unfair prejudice
substantially outweighs the probative value of photographs, including the number
of exhibits offered, their gruesomeness, their detail, their size, whether they are
4
black and white or color, whether they are close-up, whether the body is naked or
clothed, and the availability of other means of proof and the circumstances unique
to each individual case. Emery v. State, 881 S.W.2d 702, 710 (Tex. Crim. App.
1994) (quoting Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991)). Rule
403 favors admissibility and presumes relevant evidence is more probative than
prejudicial. Rayford v. State, 125 S.W.3d 521, 529 (Tex. Crim. App. 2003).

The admissibility of photographs is within the sound discretion of the trial
court and is reviewed for abuse of discretion. Jones v. State, 843 S.W.2d 487, 501
(Tex. Crim. App. 1992), abrogated on other grounds, Maxwell v. State, 48 S.W.3d
196 (Tex. Crim. App. 2001). We will not disturb the trial court’s ruling unless the
ruling falls outside the zone of reasonable disagreement. Montgomery v. State, 810
S.W.2d 372, 391 (Tex. Crim. App. 1990).

A. The trial court did not err by admitting photographs of Hollingshead
in the hospital
Appellant asserts that the trial court erred by admitting State’s Exhibits 114
and 115, which are two photographs of Hollingshead in the hospital. Appellant
argues that the photographs were not relevant because they were of Hollingshead,
not the complainant. In response, the State argues that the photographs were
relevant to show the damage resulting from appellant’s act of evading police that
was clearly dangerous to human life, an element of the charged offense. See Tex.
Penal Code § 19.02(b)(3).

Exhibits 114 and 115 were relevant to the State’s case because the State
alleged that appellant committed felony murder. A person commits felony murder
if he commits a felony other than manslaughter, and in the course of and in
furtherance of the felony’s commission, he commits an act clearly dangerous to
human life that causes the death of an individual. Id. Generally, photographs are

5
admissible if verbal testimony is admissible which described that which the
photographs depict. Emery, 881 S.W.2d at 710.

At trial, Hollingshead testified about the injuries he suffered from the
accident. Hollingshead testified that he woke up in the hospital with a contraption
on his head, a chest plate, and four bars in his skull used to keep his neck still. He
also discussed the extent of his injuries which included collapsed lungs, broken
ribs, a burst spleen, three broken bones in his vertebra, a broken femur, minor brain
damage, and second and third-degree burns on twenty percent of his body. This
testimony was admitted into the record without objection.

The two photographs of Hollingshead in the hospital were admitted after he
testified about his injuries. Exhibit 114 is a close-up photograph of Hollingshead
lying in a hospital bed. The photograph depicts Hollingshead shirtless, with a neck
brace, breathing tube, and bandages on his body. Exhibit 115 is also a photograph
of Hollingshead lying in a hospital bed and shows several bars set around his head.
Nothing is depicted in the two photographs which was not also included in
Hollingshead’s testimony. See Chamberlain v. State, 998 S.W.2d 230, 237 (Tex.
Crim. App. 1999) (noting that color photographs of victim shot in the face depicted
nothing outside of what was included in testimony of State’s pathologist). The
record reflects that only Exhibits 114 and 115 were admitted at trial, even though
numerous photographs of Hollingshead’s injuries were admitted during the
punishment phase. The photographs were relevant to show the damage that
resulted from appellant’s act of evading the police, “an act clearly dangerous to
human life” that caused the complainant’s death. See Tex. Penal Code
§ 19.02(b)(3).

Because the photographs are not more prejudicial than probative, the trial
court did not abuse its discretion by overruling appellant’s rule 403 objection and

6
admitting them into evidence.

We overrule appellant’s second issue.

B. The trial court did not err by admitting photographs of the accident
scene
In his third issue, appellant contends that the trial court erred by admitting
Exhibits 51, 54, 55, 56, 57, 58, and 59, which mainly consist of post-collision
photographs of Hollingshead’s burned-out Ford Focus with the complainant in the
passenger seat of the vehicle. In several of these photographs, the complainant’s
charred and unclothed body is visible. Appellant argues that the gruesomeness of
the photographs inflamed the minds of the jurors and that one photograph, instead
of six, would have been sufficient to depict the scene.

Exhibit 51 is a photograph that depicts the driver’s side of the vehicle, but
the complainant’s body is not immediately visible in the photograph. 1 Exhibit 54
shows a close-up view of the driver’s side window. Although the complainant’s
body is not immediately visible, his thigh and knee can be seen in the photograph.
Exhibit 55 is a photograph of the vehicle from the front, showing the vehicle’s
smashed windshield and the complainant’s body slouched over in the passenger
seat. Exhibit 56 is a close-up photograph of the complainant’s body slouched over
in the passenger seat, next to the smashed windshield. The photograph also shows
the extensive damage to the vehicle caused by the fire. Exhibit 57 is an even closer
view of the complainant through the windshield of the vehicle. Exhibit 58 is a
photograph from the passenger side of the vehicle, showing the complainant’s
body falling out of the vehicle. In Exhibits 55, 56, 57, and 58, the complainant’s

1
After appellant objected, the trial court stated “[i]s there something in particular that - -
I mean, am I missing . . . I don’t know if yall will point this out, but I couldn’t even tell that from
- - but I understand what you’re saying.” The prosecutor then agreed that he would not point out
the body in the photograph to the jury.

7
upper body can be seen, in which he is unclothed and his injuries from the fire are
visible. Exhibit 59 is a photograph of the charred interior of the vehicle.2

Officer Gallegos testified that when he arrived at the scene, he saw that
appellant’s truck and Hollingshead’s vehicle were both on fire. He stated that when
he eventually got to the Ford Focus, a civilian was attempting to pull Hollingshead
from the driver’s side of the vehicle. Officer Gallegos and three more officers
struggled to pry the driver’s side door open because it was melting from the fire.
Officer Gallegos grabbed Hollingshead’s legs and pulled him out of the burning
vehicle with help from the other officers. He stated that he could not see the
complainant because the vehicle was completely engulfed in flames. Four
photographs of the wrecked vehicle were then admitted to aid Officer Gallegos in
his testimony, including Exhibit 51. The photographs depicted the condition of the
vehicle after the flames were extinguished. Nothing is depicted in Exhibit 51
which was not also included in Officer Gallegos’s testimony. See Chamberlain,
998 S.W.2d at 237.

Officer Nathaniel Brown also testified about the scene of the accident.
Officer Brown stated that when he arrived, the vehicle was completely engulfed in
flames and he could see Hollingshead leaning forward in the driver’s seat, trapped
inside the vehicle. He testified that he and the other officers pulled him out of the
vehicle but it was difficult because of the fire. Officer Brown stated that once the
fire department extinguished the flames, they learned that the complainant died
while in the passenger seat of the vehicle. He stated that they could not see the
complainant inside the vehicle while they were pulling Hollingshead out of the

2
Although appellant complains about Exhibit 59 on appeal, the record reflects that this
exhibit was admitted by agreement of the parties. Because appellant did not object to the
admission of Exhibit 59 at trial, he has waived any argument regarding this photograph on
appeal. See Tex. R. App. P. 33.1(a).

8
driver’s seat. After learning that the complainant had died, Officer Brown went
back to the vehicle to see him and further investigate. Exhibits 54, 55, 56, 57, and
58 corroborate Officer Brown’s testimony regarding the extensive damage to the
vehicle.

Close-up photographs and photographs taken from different vantage points
add to the jury’s understanding of the condition of the crime scene. Matamoros v.
State, 901 S.W.2d 470, 476 (Tex. Crim. App. 1995). Photographs permit the jury
to examine a scene in detail. See id. Although the photographs are gruesome and
disagreeable to look at, “they depict nothing more than the reality of the brutal
crime committed.” Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995);
see also Chamberlain, 998 S.W.2d at 237 (“The photographs are gruesome in that
they depict disagreeable realities, but they depict nothing more than the reality of
the brutal crime committed.”). Visual evidence accompanying testimony is most
persuasive and often gives the factfinder a point of comparison against which to
test the credibility of a witness and the validity of his conclusions. Chamberlain,
998 S.W.2d at 237. The photographs are powerful visual evidence, probative of
various aspects of the State’s theory of the offense, including the brutality and
heinousness of the offense. Sonnier, 913 S.W.2d at 519. Although the photographs
depict the charred body of the complainant in the burned-out vehicle, the
photographs portray no more than the disturbing consequences of appellant’s
felony murder offense. See Alami v. State, 333 S.W.3d 881, 890 (Tex. App.—Fort
Worth 2011, no pet.) (holding that the trial court did not err by admitting post-
collision photograph, showing interior of victim’s vehicle with deceased victim
lying in the passenger seat).

Under these circumstances, we cannot say that the photographs are more
prejudicial than probative. See Chamberlain, 998 S.W.2d at 237. A trial court does

9
not abuse its discretion merely because it admits into evidence photographs which
are gruesome. Sonnier, 913 S.W.2d at 519; see also Shavers v. State, 881 S.W.2d
67, 77 (Tex. App.—Dallas 1994, no pet.) (“The fact that the scene depicted in the
photograph is gory and gruesome does not make the photograph more prejudicial
than probative when the crime scene is gory and gruesome.”). Thus, the trial court
did not abuse its discretion by admitting Exhibits 51, 54, 55, 56, 57, 58, and 59.

We overrule appellant’s third issue.

C. The trial court did not err by admitting the video from the accident
scene
In his fifth issue, appellant contends that the trial court erred by admitting
Exhibit 60, a video showing several police officers pulling Hollingshead from the
driver’s side of his vehicle while it was engulfed in flames.

Exhibit 60 is a video taken from one of the police officer’s dashboard
camera and shows the Ford Focus on fire. In the video, the officers are seen pulling
Hollingshead out of the driver’s seat of the vehicle while he is unconscious. The
officers carried him away from the vehicle and laid him on the ground. Although
Hollingshead is unconscious in the video, he is clothed and no visible injuries can
be seen. Exhibit 60 was used to corroborate Officer Brown’s testimony regarding
the scene of the accident. See Emery, 881 S.W.2d at 710. This testimony was
admitted into the record without objection.

The rules applicable to photographs also apply to a videotape. Gordon v.
State, 784 S.W.2d 410, 412 (Tex. Crim. App. 1990). A videotape allows a jury an
overall perspective that is simply not available from photographs. Matamoros, 901
S.W.2d at 476. While still photographs offer an isolated and fixed content, a video
recording allows a more panoramic representation of the physical and forensic
evidence. Id. Like the photographs of the burned-out vehicle, the video depicts

10
nothing more than the reality of the brutal crime appellant committed. See
Chamberlain, 998 S.W.2d at 237. Because the videotape is not more prejudicial
than probative, we hold that the trial court did not abuse its discretion by admitting
Exhibit 60.

We overrule appellant’s fifth issue.

D. The trial court did not err by admitting the autopsy photographs

In his sixth issue, appellant asserts that the trial court erred by admitting five
autopsy photographs. Specifically, appellant complains of the following: (Exhibit
88) a close-up identification photograph of the complainant’s charred face, which
was taken to assist the family in identifying him; (Exhibit 89) a photograph of the
complainant’s charred face and unclothed torso; (Exhibit 90) a photograph of the
complainant’s unclothed and charred torso, pelvic area, thighs, knees, and legs;
(Exhibit 91) a photograph of the complainant’s skull split in half, indicating where
his spinal cord separated from his brain; and (Exhibit 92) a photograph of the
complainant’s removed spinal cord, depicting where it was cut in half.

Autopsy or post-autopsy photographs can be used to illustrate injuries and to
reveal cause of death. Drew v. State, 76 S.W.3d 436, 452 (Tex. App.—Houston
[14th Dist.] 2002, pet. ref’d). Autopsy photographs are generally admissible as
long as they aid the jury in understanding the injury and do not depict the
mutilation caused by the autopsy itself. Id.; see also Rojas v. State, 986 S.W.2d
241, 249 (Tex. Crim. App. 1998) (holding that autopsy photographs were
admissible because depicted gunshot wounds and trauma to pelvic area were the
result of appellant’s actions, not the autopsy itself).

The five photographs accompanied the testimony of the State’s medical
examiner who performed the autopsy. The photographs depict nothing outside of

11
the medical examiner’s testimony. The record does not reveal how many
photographs were taken during the autopsy, but only five photographs were
admitted at trial. The medical examiner testified that the selected photographs
aided him during his investigation and that they would aid the jury in
understanding the injuries that caused the complainant’s death. He further stated
that the photographs would aid the jury in understanding his testimony regarding
the complainant’s lack of external injuries and presence of internal injuries.

The medical examiner used Exhibits 88, 89, and 90 to show that the
complaint did not have any external injuries, aside from extensive charring due to
thermal injuries caused by the flames. He stated that these three photographs were
important to show the lack of external injuries. He also stated that he selected
Exhibit 88 because he routinely chooses an identification photograph when he
testifies. The mere fact that appellant is unclothed in two of the photographs used
to illustrate the charring on his body is not sufficiently inflammatory to outweigh
the photographs’ probative value. See Rojas, 986 S.W.2d at 249 (photograph of
unclothed victim with legs apart displaying trauma to pelvic area admissible);
Morales v. State, 897 S.W.2d 424, 428 (Tex. App.—Corpus Christi 1995, pet.
ref’d) (photograph of unclothed victim with bullet wounds and numerous ant bites
admissible). Although these photographs are gruesome, they assisted the medical
examiner in explaining the complainant’s lack of external injuries to the jury.

When photographs depict internal organs which have been removed,
portraying the extent of the injury to the organ itself, “there is no depiction of
‘mutilation of the victim.’” Salazar v. State, 38 S.W.3d 141, 152 (Tex. Crim. App.
2001). Because there is no danger that the jury would attribute the removal of the
organs to the defendant, the fact that the jury views photographs depicting organs
that were removed from the victim’s body is not, by itself, determinative of

12
whether the exhibits should have been admitted. Id. The medical examiner used
Exhibits 91 and 92 to describe the internal injuries that the complainant suffered.
Neither photograph shows any mutilation caused by the autopsy. Both photographs
are probative of the nature of the complainant’s injuries and force caused by
appellant’s truck striking him while in the vehicle.

Because of the nature of the complainant’s death, the autopsy photographs
are gruesome. However, the medical examiner used the photographs to explain the
complainant’s external and internal injuries to the jury. Under the circumstances of
this case, we cannot say that the trial court abused its discretion in determining that
the probative value of the photographs was not substantially outweighed by the
danger of unfair prejudice.

We overrule appellant’s sixth issue.

III. Medical Records

Appellant contends that the trial court erred by denying his objection to the
admission of Exhibit 63, which contains Hollingshead’s medical records.
Appellant argues that the medical records were reflective of the impact the
collision had on Hollingshead and consequently, were not relevant and were
unfairly prejudicial. Appellant’s brief does not clearly state whether he is arguing
that the trial court erred by admitting the medical records during the guilt-
innocence phase of trial or the punishment phase. Thus, we will address both
arguments.

We review the trial court’s decision to admit or exclude evidence under an
abuse of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim.
App. 2010). The trial court does not abuse its discretion unless its determination
lies outside the zone of reasonable disagreement. Id.

13
 Although appellant seems to complain about the admission of the medical
records at trial, the record reflects that the medical records were not admitted into
evidence during the guilt-innocence phase of trial. When discussing whether to
admit the medical records, appellant’s counsel objected under Rule 403. The trial
court sustained his objection, stating “[f]or purposes of guilt/innocence, defense
objection to State’s Exhibit No. 63 will be sustained.” To preserve error on appeal,
the complaining party must timely object and receive an adverse ruling on his
objection. See Tex. R. App. P. 33.1; Tex. R. Evid. 103(a). Because the trial court
ruled in appellant’s favor during the guilt-innocence phase of trial, he did not
preserve this error for review.

To the extent appellant contends that the trial court erred by admitting the
medical records into evidence during the punishment phase, we disagree. When the
State sought to admit the medical records into evidence during the punishment
phase, appellant did not state any objection. Thus, appellant has failed to preserve
error for review. See Tex. R. App. P. 33.1.

We overrule appellant’s fourth issue.

IV. Motion for Mistrial

In his seventh issue, appellant argues that the trial court erred by denying his
motion for mistrial after the prosecutor made a comment during her closing
statement regarding a polygraph examination.

We review the denial of a motion for mistrial for an abuse of discretion.
Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999). We view the
evidence in the light most favorable to the trial court’s ruling, considering only
those arguments before the court at the time of the ruling. Ocon v. State, 284
S.W.3d 880, 884 (Tex. Crim. App. 2009). A trial court does not abuse its discretion

14
when its decision is within the zone of reasonable disagreement. See id.

At trial, appellant called an expert witness, Dr. Bethany Brand, to testify as
to her opinion regarding appellant’s mental condition. Dr. Brand stated that she
conducted several tests on appellant to form her opinion that appellant suffered
from post-traumatic stress disorder and polysubstance dependence. During closing
arguments, the prosecutor made the following comment: “Dr. Brand told us about
tests after tests after tests, right? That she chose. She chose them. One test that we
never heard about her giving the defendant to make sure he wasn’t making this up,
polygraph. Never.” Appellant’s counsel immediately objected to the improper
comment and the trial court sustained the objection. Appellant’s counsel asked for
an instruction for the jury to disregard the comment. The trial court promptly gave
an instruction, stating the “[j]ury will be instructed to disregard the last statement
from the prosecutor.” Appellant’s counsel then moved for a mistrial, which the
trial court denied.

A mistrial is an appropriate remedy in “extreme circumstances” for a narrow
class of highly prejudicial and incurable errors. Id. A mistrial halts trial
proceedings when the error is so prejudicial that expenditure of further time and
expense would be wasteful and futile. Id. A trial court may properly exercise its
discretion to declare a mistrial if an impartial verdict cannot be reached, or if a
verdict of conviction could be reached but would have to be reversed on appeal
due to an obvious procedural error. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim.
App. 1999). Whether an error requires a mistrial must be determined by the
particular facts of the case. Id.

It is well established that the existence and results of a polygraph
examination are inadmissible for all purposes. Tennard v. State, 802 S.W.2d 678,
683 (Tex. Crim. App. 1990). However, “Tennard stands for the proposition that

15
when a polygraph is actually administered, the existence of the polygraph test and
results thereof are inadmissible for all purposes.” Garcia v. State, 907 S.W.2d 635,
638 (Tex. App.—Corpus Christi 1995), aff’d, 981 S.W.2d 683 (Tex. Crim. App.
1998). Here, the prosecutor did not state that appellant actually took a polygraph
examination, nor was it inferred that he refused to take one. The prosecutor only
stated that Dr. Brand chose not to give appellant a polygraph examination. No
results of any polygraph test were revealed to the jury. Thus, the trial court did not
err by denying appellant’s motion for mistrial.

Furthermore, in most instances, an instruction to disregard an improper
remark will cure any error. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim.
App. 2000). Here, the trial court promptly instructed the jury to disregard the
prosecutor’s remark regarding the lack of a polygraph examination. We presume
that the jury followed the trial court’s instruction to disregard the remark. Id. at
116.

We overrule appellant’s seventh issue.

CONCLUSION

We overrule appellant’s seven issues and affirm the judgment of the trial
court.

/s/ Ken Wise
Justice

Panel consists of Justices Christopher, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).

16