Affirmed and Opinion Filed November 10, 2014 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-13-01090-CR JEREMY LAMONTE SILLEMON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F-12-24277-N 

### MEMORANDUM OPINION Before Justices Bridges, Lang, and Evans Opinion by Justice Bridges A jury convicted appellant Jeremy Lamonte Sille mon for the offense of injury to a child. The trial court assessed punishment for twenty-four years, six mont hs’ confinement. In a single issue, Sillemon argues the trial court abused its discretion by admitting all thirty-nine photographs depicting the complain ant’s injuries. We affirm. Background Sillemon lived in an apartment with his girl friend, Tatiana Nobles. Tatiana’s three-yearold son, the complainant, also lived in the apartment, 1 along with various other relatives. On August 30, 2012, the day began “as usual” for the members of the household. Tatiana’s brother, her mother, and her step-father woke up around 5:30 a.m. Her mother drove

1 At the time of trial, co mplainant was four-years-old.–2– her brother to school, then dropped her husband of f at work, and then she arrived at work by 7 a.m. Tatiana, Sillemon, and complainant were still asleep. Tatiana explained that if she woke up before appellant and her son, she straightened the apartment and made breakfast. She would then r un the bath water and give complainant a bath. She testified he could get in and out of the wate r on his own. On the mo rnings complainant and Sillemon slept late, Sillemon would give the bath because Tatiana needed to leave for school. On the morning of August 30, Tatia na left the apartment around 9 a. m. to meet a friend and take a bus to the Work Force. The record is silent as to whether she gave complainant a bath before leaving. Around 9 a.m. that morning, Jessie Smith, a neighbor and good friend of the family, heard an urgent knock on his door. When he looked outside, he saw Sillemon holding complainant in his arms. After opening the door , Jessie saw “a lot of burns” on complainant’s legs. “Just a horrific sight . It almost looked like his skin was coming off of him. It looked really bad.” Although complainant was not cr ying at the time, Jessie said it was obvious complainant had been crying, and he seemed distraught. Jessie asked Sillemon what happened, and Sillemon explained that he was running bathwater and cooking at the same time. When the microwave went off, Sillemon left the bathroom and went to the kitchen. Sillemon said complainant jumped into the bathtub after he left the room. Jessie testified the explanation did not make sense to him. Sillemon did not want to call an ambulance or take complainant to the hos pital. Rather, he only wanted to call Tatiana. Tatiana received a phone call from Sillemon when she and her friend were about halfway to the South Garland Transit Station. Sillemon told her complainant burned a small part of his foot with hot water, and she needed to come home. However, when she talked to Jessie, he said, “This look bad; you need to get here now.”–3– When Tatiana arrived at the apartment, she de scribed her son as “just sitting there . . . his skin bubbled up and hanging and sagging.” She imme diately called her mother and asked her to meet them at the hospital. Her neighbor then took them to Baylor Hospital. On the way to the hospital, Sillemon told Tatiana he did not “whup” complainant. He said complainant had a potty accident, and co mplainant was trying to clean up on his own. Sillemon said the potty flipped the water onto complainant and burned him. Tatiana testified she was potty-training complainant and he occasionally had accidents, but he never cleaned up on his

own. Because of complainant’s extensive burns, Care Flight took him to Parkland Hospital. When they arrived at Parkland, detectives separa ted Sillemon and Tatiana. She told the same story Sillemon had told her in the car ride to the hospital. However, at first she told the detectives she was at the apartm ent because she was scared she would get in tr ouble for leaving her son. Later, however, she admitted she was not home. She testified she had not talked to Sillemon since that day in the hospital. Dr. Matthew Cox was the pediatrician c ontacted by Parkland Hospital to evaluate complainant’s burn injuries. He was also the me dical director of R.E.A.C.H., a program for the referral and evaluation of at-ri sk children. He explained the program conducted medical evaluations of children in a hospital or clinic setting whose injuries may have been caused by abuse or neglect. Dr. Cox provided testimony during trial about complainant’s in juries. He described the difference between a first, second, and third-degr ee burn. He further expl ained the burn patterns one expected to see when scalding water splashed a person verses when a person was submerged in water. A bathtub injury, sometimes called an immersion burn, would look more uniform and–4– one would expect to see a water line from the scalding water rather than splash marks from a splash burn. He said scalding water could cause burns within a few seconds to a child. He explained the body’s natura l reaction to avoid somethi ng that hurts, like scalding water and that a child of complainant’s age, with the ability to get in and out of the bathtub, would normally not have immersion burns. The immediate pain sensation from the scalding water would result in a child trying to get out of th e bathtub, rather than staying in it to the point of immersion burns. Dr. Cox took pictures of complainant on the day of the injury and one day later because burn patterns are easier to see a day or two late r. Over Sillemon’s objection, the State showed the jury pictures from both days. The pictures showed the extensive nature of the second-degree burns on complainant’s lower legs, scrotum, penis, buttocks, and lower b ack. He suffered third- degree burns on his feet, which required skin grafts. The burn pattern indicated complainant was in a tucked position when he was forced into the water. Dr. Cox explained this would be a natural responsive position as to prevent parts of the body from contacting the scalding water. The tucked position also showed the “sparing” of certain body parts from burning, spec ifically the front of complain ant’s thighs, his belly, and the backs of his knees. The pictures also revealed recent bruising patterns indicating complainant had been struck with some unknown object. Dr. Cox opined that based on his examination, complainant’s injuries were consistent with a “forced immersion pattern burning as we ll as having some recent bruises and pattern injuries that would indicate he had been struck with some type of object.” The forced immersion pattern was not something a child could do to himself. He explai ned someone had to have a part in causing the burns. Dr. Cox said he was told complainant soiled himself while at home and–5– “was put on the training pot and had dumped the pot into the tub and climbed into the tub and somehow burned himself.” Sillemon’s explanation of how complainant received his injuries was not consistent with the burn patterns. Theref ore, Dr. Cox concluded complainant’s injuries indicated physical abuse. Dr. Cox classified complainant’s injury as a serious bodily injury b ecause of the scarring and life-long deformity he will have from the th ird-degree burns on his f eet. He also explained the scarring could affect the range of motion in complainant’s ankles, causing problems with walking later in life. Despite defense counsel’s attempts to provide “another plausible ex planation” of what happened in the bathtub to cause the burns, the jury found Sillemon guilty of injury to a child. The trial court assessed punishment at twenty-four years, six months ’ confinement. This appeal followed. Discussion In his sole issue, Sillemon complains the trial court abused its discretion by admitting thirty-nine photos of complainant’s injuries. Specificall y, he argues the photographs’ probative value did not substantially outweigh their inflammato ry nature; therefore, the trial court violated Texas Rule of Evidence 403. Th e State responds the trial cour t did not abuse its discretion because the probative value substantially outw eighed their alleged prejudicial nature. A trial court’s decision to admit photographs is reviewed for an abuse of discretion and will not be reversed unless the court’s ruling falls outside the zone of reasonable disagreement. Williams v. State , 301 S.W.3d 675, 690 (Tex. Crim. App. 2009). Generally, a photograph is admissible if verbal testimony as to matters depi cted in the photographs is also admissible. Gallo v. State , 239 S.W.3d 757, 762 (Tex. Crim. App. 2007); Davenport v. State , No. 05-10-–6– 00329-CR, 2012 WL 75662, at *6 (Tex. App.—Dallas Ja n. 11, 2012, pet. ref’d) (not designated for publication). Rule 403 requires a photograph to have some probative value. T EX
. R. E VID . 403. The rule favors admission of relevant evidence and carri es a presumption that relevant evidence will be more probative than prejudicial. Gallo , 239 S.W.3d at 762. A court may consider several factors in de termining whether the probative value of the photographs is substantially outweighe d by the danger of unfair prejudice. Williams , 301 S.W.3d at 690. The factors include : the probative value of the evid ence, the potential to impress the jury in some irrational, yet indelible way, the time needed to develop the evidence, and the proponent’s need for the evidence. Prible v. State , 175 S.W.3d 724, 733 (Tex. Crim. App. 2005). The court may also consider the number of exhibits offered, their gruesomeness, their detail, their size, whether they are in color or black-and-white, whet her they are close-up, whether the body depicted is clothe d or naked, the availability of other means of proof, and any other circumstances unique to the individual case. Williams , 301 S.W.3d at 690; Henderson v.
State , No. 05-11-01437-CR, 2012 WL 5383194, at *4 (Tex. App.—Dalla s Nov. 5, 2012, pet. ref’d) (not designated for publication). The State offered exhibits 29-72, which we re photographs taken by Dr. Cox on August 30 and August 31 of complainant’s injuries. Afte r an off-the-record discussion, defense counsel objected on the record “to any pho tograph showing injury to [complainant].” Counsel argued the prejudicial effect far outweighe d any probative value that the photographs may have. The trial court overruled the objec tion because the photographs “reasonably depict the injuries suffered by the complainant.” Further, the court determined the photographs were re levant, and therefore, any prejudicial effect was outwe ighed by their probative value. The State then offered into–7– evidence exhibits 15-32, 34-38, 42, 44, 45, 47, 4 8, 50, 53, 54, 56, 58, 60, 63, 66, 68, and 71. Dr. Cox explained the admitted photographs would assist the jury in understanding his conclusions. Considering the relevant factors for admissi on of photos, appellant concedes they were probative of complainant’s injuries and that it did not take much time for the State to lay the foundation for their admission. He, therefore, admits these two f actors weigh in favor of the State and admission of the photos. He asserts th e remaining factors under a rule 403 analysis weigh heavily against admission of the photos. We do not agree. Sillemon argues introducing all of the photogra phs was not essential to the State’s case because (1) the fact that comp lainant was burned was not in dispute; (2) Dr. Cox’s testimony sufficiently described the injuries in detail; and (3) Jessie and Tatiana bo th described the graphic nature of the burns. Photos that depict the natu re, location, and extent of an injury have been declared probative enough to out weigh any prejudicial effect. Frank v. State , 183 S.W.3d 63, 78 (Tex. App.—Fort Worth 2005, pet. ref’d). The fact that complainant’s in juries were not in dispute does not lessen the rele vance of the photos needed to demonstrate his injuries. See, e.g., Fletcher v. State , 960 S.W.2d 694, 700 (Tex. App.—Tyler 1997, no pet.) (concluding trial court did not err in admitting photos over a rule 403 objection despite defendant’s argument that assault was not in dispute and exclusion of photos would not disadvantage the prosecution). Moreover, a photograph is generally admissibl e if verbal testim ony about the matters depicted in the photograph is also admissible. Gallo , 239 S.W.3d at 762 (“The fact that the jury also heard testimony regarding the injuries . . . does not reduce the relevance of the visual depiction.”); Chamberlain v. State , 998 S.W.2d 230, 237 (Tex. Cr im. App. 1999) (en banc) (“Visual evidence accompanying testimony is most persuasive and often gi ves the fact finder a point of comparison against which to test the cr edibility of a witness a nd the validity of his conclusions.”). The testimony of Dr. Cox, Jessie, and Tatiana was admissible. Therefore, the–8– visual images of the injuries Sillemon inflicted on complainant are relevant to the jury’s determination, and the fact that the jury also he ard testimony regarding the injuries depicted does not reduce the relevance of the photos. Gallo , S.W.3d at 762. This factor weighs in favor of the photos’ admission. Sillemon next argues it was error to ad mit so many photographs depicting the same injuries because “it is clear the only purpose . . . was to inflame the jury’s emotions and passions. . . .” However, as the State co rrectly notes, th e number of photos presente d to the jury is the result of the extensive wounds complainant suffe red at the hands of appellant. The photos accurately depict the severity a nd amount of damage done to complainant’s feet, legs, buttocks, and genitals. While Sillemon suggests these ph otographs, when grouped t ogether, show similar angle and body parts, Dr. Cox explained the pur pose of the photographs a nd often explained the specific importance of the part icular angle and the specific in jury that was depicted. Sillemon also argues the photographs illustra te the injuries in a manner that is significantly more prejudicial than probative because some of the photos unnecessarily show complainant’s face, genitals, and his genitals wi th a catheter in place. We first note Sillemon objected “to any photograph showing injury to [complainant].” He did not object to the photographs because they showed complainant’s face, genitals, or a catheter. To the extent he makes such an argument, his argument is waived. T EX
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. P. 33.1. However, even if we considered Sillemon’s argument, complainant’s burns occurred on the entire lower half of his body; therefore, in order to document his injuries, complainant’s genitals would necessarily be exposed. Dr. Cox explained that the underside of complainant’s genitals were burned and blistered. Specifically , Dr. Cox described how complainant’s penis had some “sloughing of the skin and blisters involving his scrotum.” As previously stated, the fact–9– that the jury heard test imony regarding the injuries does not reduce the relevance of the visual depiction. Gallo , 239 S.W.3d at 762. Dr. Cox also explained the purpose of the Fole y catheter seen in some of the pictures. The catheter was required to closely monitor co mplainant’s urine output. From a medical standpoint, he testified flui d management is “very important” in bu rn victims. Further, he said it was common for children with genital burns to hol d their urine because it hurts when urine hits the open skin. The catheter allows them to urinat e without pain. Thus, in addition to illustrating complainant’s injuries, these pictures also assist ed the jury in understanding some of the medical treatment he needed because of his injuries. See, e.g., Strickland v. State , No. 06-06-00238-CR, 2007 WL 2592440, at *2 (Tex. App.—Texarkana 2007, no pet.) (mem. op., not designated for publication) (photographs properly admitted showi ng injuries and various tubes inserted in victim’s abdomen required for medical treatment after serious car acciden t). These photos were not “so horrifying or appalling that a juror w ith normal sensitivity would necessarily encounter difficulty rationally deciding the critical i ssues of the case after viewing [them].” Fletcher , 960 S.W.2d at 700. While the photos are most certainly difficu lt to look at and likely made an indelible impression on the jury, they do not depict more than the nature of the crime. None of the images simply appeal to the jury’s emotion to lead the jury to make an irrational verdict. See Erazo v.
State , 144 S.W.3d 487, 491–92 (Tex. Crim. App. 2004) (no ting relevant photos are inadmissible only if the emotional and prejudici al aspects substantially outweigh helpful aspects). Therefore, it is unlikely the photos rendered the jury irrati onal and incapable of making a sober assessment of the facts. This factor wei ghs in favor of admissibility. We likewise conclude the remaining fact ors do not weigh against admission of the photos. The photos were not overly large (8x12 in ches). They needed to be in color to–10– accurately show the extent of complainant’s in juries. And although appellant protests about complainant’s naked body in some of the photos, as previously stated, because of the location of some of the injuries, accurate documentati on could only occur while he was naked. And finally, a trial court does not err merely because it admits into evidence photographs that are gruesome. Sonnier v. State , 913 S.W.2d 511, 519 (Tex. Crim. App. 1995) (en banc). The photographs are no worse than would be expected in this sort of crim e, showing the second and third-degree burns on complainant’s lower b ody shortly after they o ccurred and a day later when burn patterns appeared more clearly. Whe n, as here, the power of the visible evidence emanates from nothing more than what Sill emon himself has done, we cannot conclude the probative value of the photographs was substantia lly outweighed by their prejudicial effect. The trial court did not err in allowing the photogra phs into evidence. Sillemon’s sole issue is overruled. Conclusion The judgment of the trial court is affirmed.

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JEREMY LAMONTE SILLEMON, Appellant
No. 05-13-01090-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 195th Judicial District Court, Dallas County, Texas Trial Court Cause No. F-12-24277-N. Opinion delivered by Justice Bridges. Justices Lang and Evans participating.

Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered November 10, 2014.