A[FlR1k Opinion Filed November 5. 2012.

In The 

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## t11 No. 05-1 1-01437-CR

ARTHUR HENDERSON, Appellant V. TIlE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 5 Dallas County, Texas Trial Court Cause No. F09-58128-L 

### OPINION Before Justices O’Neill, FitzGerald, and Lang-Miers Opinion By Justice LangMiers Ajury convicted appellant Arthur Henderson ofcapital murder and the trial court sentenced appellant to life in prison. Appellant raises two issues on appeal arguing that the evidence was legally insufficientto supporthis conviction andthatthe trial court abusedits discretion by admitting certain photographs into evidence. We resolve appellant’s issues against him and affirm. SUFFicIENcY OF THE EvIDENcE in his first issue appellant argues that the evidence is legally insufficient to support his conviction.Applicable Law and Standard of Review Appellant was indicted for capital murder lor intentionally killing Salvador Alvarez by striking him with a metal tank and asphyxiating him with a strap while in the course of committing

or attempting to commit robbery. See TEx. PENAl. CODE ANN. 

### § 19.03(a)(2) (West Supp. 201 2). In reviewing a challenge to the sufticiency of the evidence, we examine all ofthe evidence in the light most favorable to the verdict and determine whether a rational trier offact could have ihund the essential elements ofthe offense beyond a reasonable doubt. Jackson v. Vi.çginia. 443 U.S. 307, 319 (1979): Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). We cannot substitute ourjudgment forthat ofthejury and instead must defer to thejury’s determinations about the credibility ofwitnesses and the weight to he given to theirtestimony. Montgomery. 369 S.W.3d at 192. Ourrole “is simply to ensure that the evidence presented supports thejury’s verdict andthat the state has presented a legally sufflcient case ofthe offense charged.” Id. The Evidence On April 12, 2009, Easter morning, Dallas police found Alvarez’s body tied up and bloody under a pile ofblankets in his ransacked apartment Jill Urban, M.D.. the forensic pathologist who performedthe autopsy in this case, testifiedthatAlvarez was tiedup with “fairly-elaborate bindings” that included handcuffs, luggage straps, and cords. Dr. Urban concluded that Alvarez died from blunt-force injuries and possible asphyxia. Dr. Urban testified that the propane tank admitted into evidence as State’s Exhibit 127 could have caused the lacerations to Alvarez’s head. Toxicology tests revealed that Alvarez had alcohol and cocaine or crack cocaine in his system. Appellant, Alvarez, and a man named Joseph Edward Roling all lived in the Trinity Palms apartment complex. Roling, who goes by the nickname “White Boy Joe,” testified that he was unemployed and selling crack at his apartment complex to make money at the time ofAlvarez’s murder. Roling had known appellant for a few months because Roling had sold appellant crack,which appellant sometimes paid for by giving Rolinu “random stuff” like microwaves. Around midnight on April 11, 2009. which was the Saturday before Easter, Roling was outside “hustling” drugs when appellant approached him. Appellant told Roling that Roling’s upstairs neighbor. Alvarez, wanted to buy some crack. The two men went upstairs, and Roling sold crack to Alvarez and left, Appellant was also smoking crack that night. Thirty minutes later appellant came to Roling’s apartment and said Alvarez wantedto buy more crack, andthe two men wentbackupstairs. On the way to Alvarez’s apartment appellant told Roling that Alvarez had “nice stuff’ and that appellant was going to “get” Alvarez. Roling assumed that appellant “was going to (10 what he usually does, you know, try to get some stuffand sell it.” When they arrived, Alvarez was in the back room ofhis apartment near his computer. Appellant pushed Roling out ofthe way and hit Alvarez over the head with a small metal propane tank. Appellant and Alvarez started fighting. Roling got scared and left. Around 2:00 a.m. on Easter Sunday, Roling and his brother walked to a convenience store. When they returned to their apartment they saw a truck backed up onto the grass near the apartment building. It is undisputed that Alvarez drove a green GMC pickup truck. Appellant approached Roling and said he was going to “take the truck.” Appellant also said, “You know something about me, and you know I’m about to go to Oak Cliff,” which Roling took as “[s]omewhat” ofa threat (presumably that ifthe police found appellant, appellant would know that Roling told them where he was). Roling also noticed that appellant’s hands were “real beat up” and swollen. Later that morning, the police arrived and knocked on Roling’s apartment. Roling told them that he saw the truck outside, but was too scared to tell them what else he saw. In August 2009 a homicide detective called Roling. Roling went to talk to the detective and toldhimwhat happened even though the detective did notpromise “anytype ofdeals orimmunity” Later, shortly before appellant’s trial, the prosecutor told Roling that he could not be charged withselling or possessing narcotics in April 2009 without evidence other than Roling s testimony. But the prosecutor nevertheless gave Roling an “immunity agreement” for the month otApril 2009 and asked the trial court to appoint an attorney for Roling, who was present during Roling’s testimony at appellant’s trial. Roling repeatedlytestifiedthathe was being “completelytruthful” once hetalked to the homicide detective. Erin Kasehalk, a Dallas police officer, also testified forthe State. Around 4:30 a.m. on April 12, 2009, she and her partner responded to a call from the Trinity Palms apartment complex about “individuals loading a green truck with things.” When they arrived the green truck was gone but they were directed to Alvarez’s apartment. Inside they Ibund a butcher knife close to the door. In the back room they found Alvarez’s body underneath a pile ofblankets. He was handcuffed and covered in blood. Portions ofthe transcriptfromthe deposition ofJose Chavez, Alvarez’s downstairs neighbor,

were read to the jury. Chavez testified that on the night ofthe murder he heard a loud noise coming from the apartment above him, and a few hours later he saw a black man loading a television into his upstairs neighbor’s green truck, so he called 911. Steve Hough, a detective with the crime scene unit of the Dallas police department, investigated the crime scene inthis case. Hough describedthe crime scene forthejury andidentified State’s Exhibits 15 through 81 as the crime scene photographs he took, including pictures ofthree cigarette butts that were collected as evidence. Paula Autry testified that around4:00 p.m. on Easter Sunday 2009 she was at a convenience store panhandling and prostituting to get money for drugs when appellantpulled up in a green truck and asked ifshe wanted to buy some pills. Later, around 10:00 p.m. that night, appellant returned to the convenience store parking lot in the green truck and asked Autry if she had a crack pipe. Appellant and Autry smoked cracktogether and then went to nearby gas stations and panhandled to -4-get more money fordrugs. Once they had some money they drove to buy some drugs and on the way they saw a group of Mexicans standing in a yard. Appellant asked them ifthey wanted to buy the truck or “something oft the truck.” Appellant sold them the truck’s battery and some tools that were in the back. The Mexicans gave appellant an older battery and jump started it so that he could keep driving the truck. When they arrived at a man named Jimmy’s house to buy drugs, the truck (lied and had to be pushed out ofthe street, Appellant went inside to buy drugs and did not share any with Autry, so she left and returned to the convenience store. Autry identified appellant as the man she rode with, and she identified State’s Exhibit 14 as a picture ofthe green truck he was driving. Paul Ray Baker testified that he bought a green truck in April 2009 and removed the motor. Buying the truck got him “into a lot of trouble” because he was charged with receiving and possessing stolen property. Bakertestified that appellant may have been the man who sold him the truck, but it was two years ago and dark outside when he bought it, so he could not be sure. Dallas police officerMichael Gonzalez is a crime scene investigatorwho analyzed Alvarez’s truck for evidence. He collected several pieces ofevidence, including latent fingerprints and DNA samples. Officer Gonzalez identified State’s Exhibit 131 as fingerprints he lifted from the exterior ofthe driver’s door. Detective Michael Epple testified that appellant’s fingerprints were found on the exterior ofthe driver’s side door ofthe green GMC pickup truckthatthe police dusted forprints. Detective Roberto Arredondo was the lead homicide detective who investigated Alvarez’s murder. Arredondo recounted forthejury how his investigation led him to appellant. It started with the discovery ofAlvarez’s truck a few days afterthe murder, and was followedby talking to a series ofwitnesses including Autry and Baker, along with the discovery ofa green notebookthat appellant pawned that contained his Texas identification card. Arredondo also identified State’s Exhibit 128

as a DVD ofexcerpts from his interview ofappellant at the police station, and the DVD was played forthejury. Duringhis interview appellantadmittedknowingAlvarez and drinking with andtalkingto him in the parking lot, hut he denied going into Alvarez’s apartment Arredondo also testified that it is appellant’s voice on the jail calls that were admitted into evidence without objection as State’s Exhibits 132 and 133. In one ofthe jail calls appellant tells the woman on the other end ofthe line to make sure and tell someone named Matty that Matty was with appellant on Easter. Courtney Ferreira, a forensic biologist and DNA analyst, was one of the witnesses who testified about the DNA evidence in this case. Ferreira testified that the DNA samples collected at the crime scene were compared to the DNA profiles lbr appellant, Roling, and Alvarez. Most ofthe DNA collected matched Alvarez’s DNA profile, none matched Roling’s I)NA profile, and one sample matched appellant’s DNA profile. The DNA sample that matched appellant’s DNA profile

was from a cigarette butt found on the floor in the back room ofAlvarez’s apartment. Quiney Stoker, anotherresident ofthe Trinity Palms apartment complex, testified that after Alvarez’s murder he saw appellant and noticed that his hands were really swollen and had “cuts and stuffon ‘em.” Stoker asked appellantwhathappened to his hands and appellant saidhe injuredthem fixing a car. Analysis Appellant first argues that the evidence is insufficient to supporthis convictionbecause “the physical evidence collected in this case does not point to [ajppellant as the perpetrator.” More specifically, appellant argues that (1) his fingerprints were not found in Alvarez’s apartment; (2) the only item found in Alvarez’s apartmentthat contained appellant’s DNA profile was a cigarette butt found on the floor, and it “could have come off of anyone’s shoe because the grounds ofthat apartment complex are littered with cigarette butts”: (3) there is no evidence that any ofAlvarez’s

At the outset, and without citing to any authority, appellant argues that the State was required to exclude every reasonable hypothesis raised by the evidence that tended to exculpate him. But the former standard ofreview requiring reversal ofcircumstantial evidence cases unless the defendant’s guilt was the only reasonable hypothesis was overruled by Geesa v. Stale, 820 5.W.2d 154, 1 6O--6l (Tex. Crim. App. 1991), overruled on other grounds be Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000); ivtanivanh v. State, No. 05-07-00921-CR, 2008 WL 4952837. at *4 (‘dcx, App--Dallas Nov.21, 200$, pet. ref’d). We apply the appropriate standard ofreview. —6—property pawned: and (4) appellant’s fingerprint on Alvarez’s truck door could have been left there at another time because the two men knew each other. Appellant also argues that other evidence is insufficient to support his conviction. For example, appellant argues that (1) the State’s principal flict witnesses, Roling and Autry, were not credible because Roling was an admitted drug dealer and Autry was an admitted crack addict; (2) Roling’s testimony “did 

### not match the evidence atthe crime scene” because Roling testifiedthatAlvarez was doing drugs and sitting athis computer, but the police did not find any drugs or drug paraphernalia in Alvarez’s apartment. nor did they find

a chairorconiputernear Alvarez’s desk; (3) the police did not 

### find Autry’s fingerprints in Alvarez’s truck; (4) Baker could not positively identify appellant as the person who sold him Alvarez’s stolen truck; and (5) Chavez (lid not positively identify appellant as the black man who was loading the television into Alvarez’s truck. We disagree with appellant. Roling testified that appellant had previously given him various items like microwaves in exchange for drugs. On the night ofAlvarez’s murder appellanttold Roling that Alvarez had “nice stuff’ and that appellant was going to “get him.” Roling saw appellant hit Alvarez in the head with

a propane tank and start fighting with him shortly before Alvarez was found dead. Autry testified that she rode around with appellant in Alvarez’s green truck afterthe murder. Appellant’s cigarette butt was found in Alvarez’s apartment and his fingerprints were found on the door ofthe truck. After examining all the evidence in the light most favorable to the verdict, we conclude that a rational trier offact could have found the essential elements ofcapital murder as charged in the indictment beyond a reasonable doubt. As a result, we conclude that the evidence is legally sufficient to support appellant’s conviction for capital murder. We resolve appellant’s first issue against him.

—7—Aimiissio OF PIaoTo(;RAPIIs In his second issue appellant argues that the trial court erred by allowing into evidence “objectionablephotographs” taken ofAlvarez atthe medical examiner’s office. He generallyargues that the photographs should havebeen excluded underTexas Rule ofEvidence 403 because they are “repetitious and highly prejudicial.” Applicable Law and Standard ofReview Relevant evidence may be excluded under rule 403 ifits probative value is substantially outweighed by the danger ofunfair prejudice. confusion ofthe issues, ormisleading the jury, or by considerations ofundue delay or needless presentation ofcumulative evidence, TEx. R. Evin. 403. Rule 403 favors the admission ofrelevant evidence andcarries apresumption thatrelevant evidence will be more probative than prejudicial. See Gullo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007). Relevant factors in determining whetherthe probative value ofphotographs is substantially outweighed by the danger of unfair prejudice include “the number of exhibits offered, their gruesomeness, their detail, their size, whetherthey are in color orblack—and—white, whetherthey are close-up, whetherthe body depicted is clothed ornaked, the availabilityofothermeans ofproof, and other circumstances unique to the individual case.” Williams v. State, 301 S.W.3d 675, 690 (Tex. Crim. App. 2009). “Autopsyphotographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself.” id. Pre-autopsy photographs are generally admissible if they aidthejury’s understanding ofthe victim’s injuries. See Matamoros v. State, 901 S .W.2d 470, 476 (Tex. 1995) (photographs ofvictim’s body at morgue before autopsy admissible because they “add to the jury’s understanding ofthe nature ofthe wounds involved”). We review the trial court’s ruling on the admissibility ofphotographs under an abuse of discretion standard and will not reverse the trial court’s ruling unless it falls outside the zone of reasonable disagreement. See Young v. State, 283 S.W.3d 854, 874 (Tex. Crim. App. 2009). —8—

### Analysis Appellant complains aboutthetrial court’s decision to overrule his timelyobjection

### under rule of

### evidence403 andadmitinto evidence State’sExhibits 83—108 and 110—114? During asub
rosa hearing on the issue ofthe admissibility ofthe photographs in question, the prosecutor explained that he and Dr. Urban reviewed 95 photographs and excluded photographs that were cumulativeorshowedinjuriesthatappearedtobeunrelatedtothe murder. Dr. Urbanalsotestified abouthowthephotographsatissueshowcertainwoundsandhelpherdescribe“theoverallcondition ofthebody.” Wecannotconcludethattheprobativevalueofthephotographs is substantiallyoutweighed by the danger ofunfair prejudice. The photographs at issue illustrate the 

### medical examiner’s testimony about Alvarez’s wounds and portray “no more than 

### the gruesomeness ofthe injuries inflictedbyappellant.” See Williams, 301 S.W.3dat 691. As aresult, 

### we cannotconcludethat

### the trialcourt abusedits 

### discretionwhen itoverruledappellant’s objectionandadmittedinto evidence State’s Exhibits 83—108 and 

### 110—114. See iii 

### We resolve appellant’s second issue againsthim. CONCLUSION 

### Weresolve appellant’s issues againsthim 

### andaffirm.

7flJ)tTh LANG-MI Do NotPublish 

## Thx. itAPP. 

### P.47 11 1437F.U05

-Appellant

### a bdeacribesthephotographs as “floolorphotogmpbC Butinhis appellant’s briefheidentIfies31 photographs, adthe intheappelhtetecadasbhck-and-whitepbotocopiea Asthecnofappeanexplained,”(i]fappeflantbelieved thatthecolors Intheactualphotographs wouldhave madeadirenceIn ourmactamestofprejudice, then itwas incumbentuponhimtotaunt thateithertheoriginal photographsorcolorphotocopieswanincluded IntherecorC’ WIlliams, 301 S.W.3d at690 n.6. 

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## 1a11a JUDGMENT ARTHI IR HENDERSON, Appellant No. 05-I 1-01437-CR V. THE STATE OF TEXAS, Appellee Appeal from the Criminal District Court No. 5 ofDallas County, Texas. (Tr.CtJ\o. F09- 581 28-F). Opinion delivered by Justice Lang-Miers, Justices O’Neill and FitzGerald participating. Based on the Court’s opinion otthis date, thejudgment ofthe trial court is AFFIRMED. Judgment entered November 5, 2012.

A 2’ 4 fL Et1ZBETH LAN&-Mf3RS / JUS7ICE 

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