NO. 07-03-0218-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL C NOVEMBER 30, 2004

______________________________ DEANNA SHEP HERD,

Appellant v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 159 TH DISTRIC T COURT O F ANGELI NA COUNTY; NO. 22,688; HON. PAUL E. W HITE, PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before JOHNSON, C.J., and QUINN and REAV IS, JJ. Appellant, Deanna Shepherd, ap peals her conv iction for capi tal murd er th rough five issues. She argues that 1) the evidence i s legall y insufficient to support her

convicti on, 2) the evidence is factually insufficient to support her convictio n, 3) the trial court erred in admitting evidence of an e xtraneous offense, 4) the trial court erred i n admitting t he hearsay statement of a m inor child, and 5)

the trial court erred i n admitting four photographs i nto evidence. We aff irm the judg ment of the trial court.2 Background Appellant

was res iding in ahouse owned by he r father i n Angelina C ounty along with her two children and with Dani el Pugh, her boyfriend. Appellant and Pug h had been
a couple for several months, and appell anthad quit her job around the s ame time they g ot together. She was w riting ho t checks to s upport her boy friend and childr

en. Several weeks prior tohis murder, appell ant’s neighb or, Fant Smart, had been robbed of several personal items from his house includ ing some guns. The perpetrators of th at offense were Daniel Pugh and two friends of his frien ds, Nathan Snider and David Yount. Yet, appell ant later possess ed and or fired at least one of the weapons taken in th at robbery

. On January 6, 2001, Pugh went back to Smart’s residence several times to look for more items. During one of those trips, Smar t entered his h ome, was bound an d beaten, and then shot seven times with tw o different guns. Appellant denied being presen t while the b urgla ry, beatin g, and shooting occurred. Y et, her chil d had informed the poli ce that her mother had been at Smar t’s house w ith Pugh w hen shots we re heard. So too d i d appellant

inform her cell mate (after her ar rest) that “we” were in the house when the home
owner retu rned unexp ecte dly. After the killin g, appellant

and Pugh clean ed up the house, loa ded Smart’s body into Smart’s pickup truc k, set fire to Smart’s house, loaded her tw o children i n the t ruck, and drove around wi th the body i n the bed of it. The body was ev entually dr

opped into Tantabogue Creek

in Trinity

County w ith the help of Nat han Snider. The next day, appellant left her two chil dren with her ex-hu sband. She and Pugh then traveled to Florida, back through Oklahoma, and ev entually to Canyon, Texas, to meet a friend of Pugh’s. However, the friend had notified authori ties in Randal l County t hat3

he had been contacted by Pugh, and the authoriti es attempted to stop them. Before they could do so, Pugh committed s uic ide by shoot ing himself i n the head. Appell ant was arrested, tr ied, and conv icted of capital murder.

Issues One and

Two - Suf

ficiency of the Evidence In her first tw

o issues, appel lant challeng es the legal and factu al sufficiency of the evidence to support he r participation or agreement to comm it either burglary or murder. W e overrule the issues. The standards by which we rev iew legal and factu al sufficiency are well established. We refer the parti es to Jackson v. Vi rginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed.2 d 560 (1979), Sims v. State, 99 S.W.3d 600 (Tex. Crim. App. 2003), Zuliani v. State, 97 S.W.3d 589 (Tex. Cr im. App. 2003), and King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000) for an explanati on of the standards. Appellant

was charged in the indictment with intentionally causing the death of Fant Smart by shooting him with a deadly weapon while in the course of committing or attempting to commit the offense of burg lary of the habita tion of Fant Sm art. Th e charge allowed the jury to convict ap pellant either 1) by act ing wi th intent to pr omote or assis t the commission of the offense and soliciti ng, encourag ing, dire cting, aid ing, or attempting to aid another person to commit the offense or 2) by committing one felony whi le attempting to carry out a conspiracy to co mmit another felony if the of fense was committed in furtherance of the unlawful pur pose and shoul d have been anticipated. See T EX
. P EN
. C ODE A NN
. §7.02 (Vernon 2003) . Appellant ar gues that ther

e was no evidence th at anyone other than Pugh enter

ed the h ouse with in tent to commit a bur glary of the home of Fant4

Smart or that anyone else was in the house when Pugh shot and killed Sm art. Thus, there
was no ev idence of any form of ag reement to commit one felony. To be convic

ted as a party

to an offense, there must be ev idence show ing that at the time of the offense, the part ies wer e acting tog ether

with each contributing some part towardsthe execution o f their common purpos e. Wooden v. State, 101 S.W.3d 542, 546 (Tex. App

. –Fort Worth 2003, pet. ref’d); Edwards v. State, 956 S.W .2d 6 87, 6 90 (T ex. App.–Texark ana 1997, no pe t.). The a greem ent, wheth er exp licit or imp licit , mus t have be e n made before or contempor aneously w ith the offense. Barnes v. State , 62 S.W.3d 288, 296 (Tex. App.–Austin 2001 , pet . re f’d) . In dete rmi ning the g uil t of a defendant as a part y, the factfinder

may look to events occurring before, d uring, and after commission of the crime, Goff v. State, 931 S.W.2d 537, 545 (Tex. Cr im. App. 1996), cert. denied, 520 U.S. 1171, 117 S.C t. 1438, 137 L.Ed.2d 545 (1997), and p articipati on as a party may be inferred from circu mstantial evidence. Gant v. State, 116 S.W.3d 124, 133 (Tex. App.– Tyler 2003, pet. ref’d); Green v. State, 839 S.W.2d 935, 944 (Tex. App. –Waco 1992, pet. ref’d); Hill v. State, 883 S.W.2d 765, 770 (Tex. App.–Amarillo 1994, pe t. ref’d). Moreover, the cumula tive force of al l the incri minating ev idence may be s ufficient to war ran t a conclusion of guilt. Thomas v. State, 915 S.W.2d 597, 600 (Tex. App.–Houston [14 th Dist.] 1996, pet. ref’d). H owever , one does not become an accomp lice thro ugh mere knowledge of a crime or t he failure to dis close its commission. Stevens v. State, 820 S.W.2d 930, 934 (Tex. App.–For

t Worth 1991, pet. ref’d). In this instance, appellant den ied that she was present when Smart was ki lled or thatshe partici pated in any burglary of his house. She d id admit that she cleaned up after5

the murder, helped to load the victim into his ow n pickup truc k, drove ar ound in the victim’s truckwi th th e bod y i n thebed o f the tru ck, was pre sent whe n thebody

was dis pose d of, fled the state w ith Pugh, and u sed money stol en from the vic tim and pawned items stolen from him. However, she c laimed she did t hose acts becaus e she was afr aid of Pugh. Nevertheless, other evi dence shows that 1) she and Pugh had previous ly talke d of committing a robbery

and had actually

done so near Col lege Stat ion, Tex as, 2) she had quit her j ob and was having to write hot checks to cover ex penses, 3) she learned of the first burglary of Smart’s house soon after its occu rrence, and pr acticed shooti ng the guns thathad been stolen i n the burglar y, 4) on J anuary 6, appel lant was told by Pug h that he
was going to Smart’s house to see what w as in it, and she “had an idea”he was g oing to rob it, 5) after Pugh had been to Smart’ s house, he show ed her money he ha d taken, they counted out $250 in coins together, and h id it in her closet, 6) after doing so, Pugh tol d her he was returning to Smart’s house and she d id no t ask him t o ret urn t he st olen prop erty, 7) later she cl eaned up blood from Smart’s house, had the idea to put a blanket under

the bod y, returned toher ow n home several times while doing so to obtain cleaning materials and check on her children, and helped load th e body into the truck, 8) appellant did no t try to escape from P ugh although she had multiple oppor tunities to do so throughout the entire ordeal, 9) appellant g ave a detail ed descripti on to police as tohow t he cri me occurred even though she wasallegedly not present, 10)

appellant gav

e conflicting stories to the police with respect to her

involvement, 11) the body had bruising consistent w ith the vi ctim having been beaten before his death altho ugh that theory is inconsistent with appellant’s version that Smart was only shot when he unexpectedly came home, 12 ) Pugh told his friend i n Canyon, Texas, that “ we were robbing a house and the guy walked in on us and [I] turned6

around and shot him,” 13) a cell mate tes tified that appell anttold her “ we were in the house when the teacher came in and surpri sed ‘em,” and 14) a ppellant’s own daughter told
o fficers that her mother was in theSmart house w ith Pugh w hen shots we re h eard

. (Emphasis added)

. From this evi dence, a rational jury could have found, bey ond reasonable doubt , that appellant

participated in the burg lary and mur der of Smart. Thu s, th e con victio n enj oys the support of legal ly sufficient evidence. That appellant presented exculpat ory evidence and evidence indicating that Pu gh forced her to helpclean the house a fter the murder did not obligate the jury to acquit her of the charges . Indeed, evi dence of guilt may often be circumstantial, contradicted, and less than clea r and uneq uivo cal, such as th at here. Yet , it is the task of the jury to determine what and who to believe. And, the jury is free to disbelieve appellant’s testimony and evidence and believe that of the State. See Hanson v. St ate, 55 S.W.3d 681, 691-92 (Tex. App.–Austin 2001, pet. ref’ d) (ho ldin g that the j ury co uld d isbe lieve that the defendant had told his companion that he was “not doing nothing ” when ther e was ev idence that he had been told of a plan to rob the vi ctim, carri ed a hammer which was one of the mur der weapons, washed off a knife after the murder, took

items from the house, and left town). And, when the evidence i s viewed as a whol e, we cannot say that i t greatly preponderates against that supporting appellant’s conviction. Nor can we conclude that the evidence of ap pellant’s guilt, w hen weig hed against th e other evi dence of record w as so w eak as t o render the verdict manifestly unjust. Thus, the verdict also enjoys the suppo rtof factually sufficient evidence. See Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940, 107 S. Ct. 1590, 94 L.Ed .2d 779 (1987) (hol ding that the7

defendant exhibited a prior under standing that

a crime would occur by stating he felt that his co-actor “was goi ng to start some trouble,”the defendant sugg ested that they gag the victim and take him to th e back of the trai ler, the defendant moved the truck to load the stolen property, and after the murder , they trav eled to another tow n, pawned a televis ion, used the vic

tim’s ATM car

d and fled to another s tate). Issue Three -

Extraneous Offense In her third i ssue, appellant compla ins of the admission by the trial court of evidence thatshe had prev iously committed an unadjudicated armed robber y wit h P u g h

. We overrulethe issue. On rebu ttal, the S tate attempted to introduce the testimon y of 1) Norma Nichols, who had resided w ith appellant an d Pugh for a peri od of time, to the effect t hat she ha d heard them plan a robbery a nd that they r eported to her t hey had committe d a robbery, 2)
an offi cer

who inter

viewed appellant duri ng whic h intervi ew appellant admitted to participati ng in an arm ed ro bbe ry in BrazosCounty, and 3) a Braz os County officer regarding an aggrav

ated robbery t hat took place w ithin that count y at that same time. The State contended t hat the evidence w as releva nt to motive, intent, plan, k nowledge, and refutation of appellant’s conten tion that she only participated in the curr ent o ff ense because she was afra id of Pugh. Appellant objected to its admission on the basis of Rule 404(b) and Rule 403 of the Tex as Rules of Evidence. The court over ruled the objections and admitted the ev idence. We review

the trial court’s rul ing on the admi ssion of th e evide nce for abuse of discretion. Montgomer y v. State, 810 S.W.2d 377, 379 (Tex. Crim. App. 1991). And, so8

long as the trial court’s decision falls within the zone of reason able disa greement, w e cannot say t hat it abused it s discreti on. Id. at 380. Next, evidence of an extraneous of fense is relevant if it tends t o estab lish some elemental or evident iary fact or rebuts a defensive theor y. Brown v. State, 96 S.W.3d 508, 511 (Tex. App.–Aus tin 2002, no pet.); see also Mose s v. State, 105 S.W.3d 622, 626 ( Tex. Crim. App. 2003 ) (hol ding t hat e viden ce ma y be ad miss ible if it rebu ts a d efe nsive theory); Tex. R. E VID
. 404(b) (holdi ng that evidence of other crimes, wrongs or acts is admissible to show proof of moti ve, opportuni ty, intent, preparation, pl an, knowledg e, identity or absence of mistake or

accident). Appellant

contended both in statements g iven to police and i n her testimony at trial thatshe did not know

that Pugh was going to rob Smart and t hat she only helped him after the murder beca use she feared Pug h. The evidenc e of her partici pation wit h Pugh in a prior robbery n otonly

illustra tes that she w

orked in tandem w ith Pugh’s criminal es capades in the past but

also that

she did it q uite voluntarily. Indeed, she hers elf admitted that she waited outside of the convenience store i n Brazos C ounty to dri ve the coupl e away a nd thatwhile s he waited s he applied mascar a to at least one eye. The nonc halance exhi bited whil e Pugh robbed thestore tends torebut any i nsinuation that she feared Pu gh or wa s otherwise coerced into engag ing in his criminal es capades. Conseq uently, w e cannot say thatany decision fin d ing the ev idence both rel evant, an exception to Rul e 404(b), and admissible under

Rule 403 was outside the zone of reasonable dis agreement.

Issue Four - Hearsay Statement Appellant

argues in her fourth i ssue that the tr ial court erred in admitti ng the hearsay statement of her minor daughter. We overrul e the issue.9

Prior to the offer of the hearsay statement, the si x-year -old child testified that she had never hear

d gunshots w hen her mother w as away from the house. This statement diffe red from the statement given to a police o fficer and offered (at tr ial) throug h Officer Jimmy Casper as a prior inco nsistent state ment of the child. F urther more, i n the prior statement, the child di sclosed that s he had been in the hous e w ith he r brot her, b ecame concerned because she coul d not find her mother , stepped outside, heard gunshots, and realized that her mother w as still w ith Pugh at Smar t’s house. A prior inconsistent statement is not hearsay. T EX
. R. E VID . 801(e)(1) (A). And, to the extent that appellant conte nds before us that th e State failed to com ply with Texas Rule of Evidence 613 (regarding the admission of prior incon si stent stat ements), that g round went unmentioned below

. S o, because the obj ection below does not comport with that uttered here, it is waived. Rodriguez v. State, 955 S.W .2d 171, 177 (Tex. App.– Amarillo 1997, no pet.). Issue Five - Photographs In her final issue, appellant claim s the trial court erre d in admitting, over her Rule 403 objection, four

photographs of thedeceased vi ctim. We overrule the i ssue. Althou gh relevant, evidence may be excluded if its probative value is substantially outweigh ed by the dang er of unfair prejud ice. T EX
. R. E VID
. 403. And, whet her the trial court erred in rejecting an objection found ed upon Rule 403 depe nds upon whether it abused its discr

etion, i.e. whether th e decision fall s outs ide the z one of reasonab le disagreement. This s tand ard also appli es to the admissi on of photographs. Wyatt v. State, 23 S.W.3d 18, 29 (Tex. Crim. App. 2000).10

Next, pictures are generallyadmissible i f verbal testimony of thematters depicted is also admissi ble, unle ss, o f co urse , the ir pro bati ve value isoutweig hed by their prejudicia l effect. Ramirez

v. State, 815 S.W.2d 636, 647 (Tex. Crim. App. 1991). Furthermore, the trial court does not abuse its d iscretion in admitting photographs if the y will help the jury to understand verbal testimony, such as technical language used by a medical doctor in describing injuries sustained. Hernan dez v. State, 118 S.W.3d 469, 478 (Tex. App.– Eastland 2003, pet. ref’d). The four photographsin questi on were al l 4" by 6" pi ctures of the victim s howing t he wounds on his body . Appellant co mplains that Ex hibit 35 show s the vic tim on a g urney with his hands bound beh ind his back. Appellant also complains that Exhibits 39, 46, and 47 depict the v ictim’s head while he is lying o n a gurney. Yet, the pictures about which appellant

complains on appea l are not more gruesome than others depic ting appell anton the gurney and to which no complaint was made. See Youens v. State , 742 S.W.2d 855, 862 (Tex . App .–Be aumon t 199 7, pe t. r ef’d ). A ddit iona lly , two of th e pictures ar e of the decedent’s scalp and purp ort to depict scalp wounds. A trial court holding them to be of minimal emotional impact or of minimal dista ste would fall withi n the zone of reasonable disagreement. That of the decedent ly ing wi th hi s arms tied de picts how the body was found and t he ef for t which must have been taken by those who murdered him to either kill him or dispose of his body. And, the photo of the deced ent’s face depicts that he was beaten, whic h tends to contr adict the ev idence that he w as only sh ot. The fact that the body

is show n after it has been moved from the position in which itwas di s covered doesnot render the photos inadmissi ble. See Purtell v . State, 761 S.W.2d 360, 37 1 (Tex . Cri m. App. 1988) (hol ding that photog raphs show ing the body after11

having been moved from the po siti on in which it was dis covered w

ere probative of the
manner in w hich the d eceased was killed as w ell as the con dition of the body and the locations of the wounds) . Moreov er, photogra phs of murder v ictims may be admissible to show the manner and means of deat h even if they merely corroborate other kinds of evidence. Moreno v. Stat e, 1 S.W .3d 846, 857 (Tex. App.– Corpus Christi 1999, pet. ref’d). Fina lly, that a relevant pi cture may be gruesome alone is not necessa rily j ustification to exclude it. Sonnier v. Stat e, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995). Giv en this and the propensity

of the photos to not only evince the brutalit y of the cri me but also the
manner in which itactually occurred, we cannot say that the trial court’s decision to reject Rule 403 as a basis to exclude t hem fell outside the zone of rea sonable disagreement and constituted an abu se of discreti on. Accordingl y, the judg ment of the trial court is affirmed.

Per Curiam
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