### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00020- CR

Johnn y Ray Barr, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 167 TH JUDICI AL DISTRICT NO. D-1 -DC- 11- 9040 43, TH E H ONO RAB LE MI CHAEL LY NCH, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted J ohnny Ray Ba rr of murder. See Tex. Penal Code § 19.02. He elec ted to have the trial court assess punishment, and the judge assessed his p unishment at confine ment for 60 y ear s in the Texas Depa rtment of Criminal J ustice. See id. § 12

. 4 2 (d ). I n a single point of err o r o n ap p ea l, Ba rr complains about the admission of one of the autopsy photogr aphs. I n addition, throug h our own revie w of the rec ord, we have found cler ical err ors in the written judgme nt of conviction. We w ill modify the judgme nt to corr ect the cler ical err ors and, as modified, aff

irm the judg ment of convic tion.

BACK GR OUND Edna Nutall had been dating Ba rr for approximately three months when, on November 6, 2010 at approximately 11:00 p.m., she and her cousin, J ames Stewart, met up with Ba rr and then went toge ther to the Airport Ba r an d Gr i l l

. At the club, Stewart spent most of the nightinside, but Ba rr and Nutall went outside toge ther a few times. At closing time, Stewart left the club and found Nutall in the parking lot sitting in the passeng er seat of her Ex plorer. He saw blood on 1
her lips. Nutall beg an cry ing and explained that Ba rr had struck her in the nose and punched her in the mouth. 2
Stewart star ted to drive Nuta ll away

in the Ex plorer but stopped just before exit ing the parking lot when he saw Ba rr standing off to the rig ht. Stewart exit ed the SUV to confr ont Ba rr about the assault of his cousin. Nutall also g ot out of the Ex plorer. During the confr ontation at the back of the SUV, Ba

rr pushed Nutall up ag ainst the Ex plorer and shot her in the fac e. Nutall fell into
Stewart’s arms. When police arr ived on the scene , Stewart was in shock, cra dling his cousin in his

arms, repe atedly say ing “he shot my cousin.” He identified Ba rr as the person who shot his cousin. Nutall was take n by

ambulance to the hospital where she died the ne x t day

. After he shot Nutall, Ba

rr fled the scene . He flag g ed down an acqua intance as he ran along the frontag e road of I nterstate 35, seeking a ride. He showe d the occ upants of the c ar a g un and told them h e acc identally shot Nutall. After this disclosure, his friends ref used to g ive him a ride. The day afte r the shooting, while Nutall was in the hospital, Ba rr called Nutall’s sister and told her that he did not mean to shoot Nutall. He said that he intended to shoot her cousin, Stewart, but Nutall g ot in the way

.

The evidenc e showed that Nutall and Stewart drove her Ex plorer to meet Ba rr at a parking 1 lot near dow ntown. The thre e of the m then drove to the c lub toge ther in her Ex plorer. Evidence at trial demonstrated discord in the rela tionship betwee n Ba rr and Nutall. 2 Testimony from Nutall’s family indicated that she wa s attempting to end the rela tionship and planning to move to Houston. Other testimony showed that Ba rr expressed jealousy and frustra tion that night be cause he thoug ht Nutall was “ha ving a fling ” with her

ex-boy friend. 2At trial, the medical examiner testified t h at Nutall died from a g unshot wound

inflicted on the left side of her fore head just above her left ey ebrow

. She also t est ified that the injuries, particula

rly stippli ng injuries on the skin around the entry wound, indicated that the g un was in close ra

ng e, betwe en two inche s and three fee t from Nutall’s fa ce, w hen the shot wa s fired. The jury found Barr g uilty of m urder as charg ed in the i ndictment

. Ba rr elected to have the trial court assess his punishment. He enter ed pleas of true to three enhanc ement para g raphs alleg ing four prior felony convictions. The trial judge found the enhanc ement alleg ations to be true and, pursua

nt to the habitual offe nder provision of t he P enal Code, assessed Ba rr’ s punishment at conf i n em en t for 60 y ear s in the Texas Depa rtment of Criminal J ustice. See Tex. Penal Code § 12.42(d). This appe al followed.

ADMISSION OF A UTOPSY P HOTO GR AP H
I n his sole point of err or, Ba rr contends that the trial court err ed in admitting State’s
Ex hibit 48, an autopsy photogr aph depicting the bullet lodge d in the t issue at t he back of Nutall’s neck. He claims that the photogr aph should have been excluded beca use it was not rele vant and the dang er of unfair pr ejudice substantially outweig hed any

probative va lue.
Standard of Review

We revi ew a t ri al court’s decision to admit or exclude evidenc e for an abuse of discretion. Till man v. State , 354 S.W .3d 425, 435 (Tex. Crim. App. 2011); Sandoval v. State , 409 S.W .3d 259, 281 (Tex. App.—Austin 2013, no pet.); see also Gallo v. State , 239 S.W .3d 757,
762 (Tex. Crim. App. 2007) (“The admissibili ty of a photogr aph is within the sound discretion of

3the t ri al judge .”). A trial court abuses its discretion only if its decision “lies outside the zone of

rea sonable disag ree ment.” Martinez v. State , 327 S.W .3d 727, 736 (Tex. Crim. Ap p . 2 0 10); Montgomery v. State , 810 S.W .2d 372, 391 (Tex. C ri m. App. 1990) (op. on reh’ g ); Sandoval , 409 S.W .3d at 281. We consider the ruling in light of what was befor e the trial court at the time the ruling was made and uphold the trial cou rt ’s decision if it lies within the zone of rea sonable disag ree ment. Billodeau v. State , 277 S.W .3d 34, 39 (Tex. Crim. App. 2009); Sandoval , 409 S.W .3d

at 281. I f the court’s evidentiar y ruling is rea sonably supported by the rec ord and correc t o n any theory of law applicable to that ruli n g, we will uphold the decision. De La Paz v. State , 279 S.W .3d 336, 344 (Tex. Crim. App. 2009); Carrasco v. State , 154 S.W .3d 127, 129 (Tex. Crim. App. 2005); Sandoval , 409 S.W .3d at 297.
Analysis
To be admissible, evidenc e m u s t b e re levant. See Tex. R. Evid. 402. Evidence is rele vant if it has “any tendenc y to make the exis tence of any fac t that is o f consequence to the deter mination of the action more probable or less probable than it would be without the evidenc e.” Tex. R. Evi d. 401.

Rule 403 of the Texas Rules of Evidence allows for the exclusion of otherwise rele vant evidenc e when its probative value is substantially outweig hed by t h e d an ger of unfair prejudic e. Tex. R. Evid. 403. Rule 403 favor s the admission of rele vant evidenc e and car ries a presumption that re l evant evidenc e will be more probative than prejudicia l. Davis v. State , 329 S.W .3d 798, 806 (Tex. Crim. App. 2010 ); Ga l l o , 2 3 9 S.W .3d at 762. “The term ‘proba tive value’ ref ers to the inhere nt pr obative forc e of an item of evidenc e—that is, how strong ly it se rves
4to make more or less probable the exis tence of a fac t of conseque nce to the litigation—coupled with

the proponent’s need for that item of eviden ce . ” Da vis , 329 S.W .3d at 806; Casey v. State , 215 S.W .3d 870, 879 (Tex. Crim. App. 2007). “‘Unf air pre judice’ r efe rs to a tendency to sugg est decision on an improper basis, commonly , though not nece ssari l y , an emotional one.” Davis , 329 S.W .3d at 806. All testimony and phy sical evidenc e are likely to be prejudicia l to one party or the other. Id. ; Jessop v. State , 368 S.W .3d 653, 694 (Tex. App.—Austin 2012, no pet.). Thus, “[t] o violate Rule 403, it is not enoug h that the evidenc e is ‘pre judicial’—it must be unfairly prejudicia l.” Vasquez v. State , 67 S.W .3d 229, 240 (Tex. Crim. App. 2002). I t is only when ther e exists a c lear disparity betwee n the deg ree of prejudice produce d by the offe red evidenc e and its probative value that Rule 403 is applicable. Davis , 329 S.W .3d at 806; see Gayton v. State , 331 S.W .3d 218, 227 (Tex. App.—Austin 2011, pet. ref ’d).
Our analy sis under Rule 403 includes, but is not limit ed t o , t he following fac tors: (1) the probative value of the evid en ce , (2 ) t he potential to impress the j ury in some irrational y et i n d eli ble way , (3) the time neede d to develop the evidenc e, and (4) the proponent’s need for the evidenc e. Hernande

z v. State , 390 S.W .3d 310, 32 4 (T ex . C rim. App. 2012); Shuffield v. State , 189 S.W .3d 782, 7 8 7 (Tex. Crim. App. 2006). I n deter mining whether the probative value of a photogr aph is substantially o u t we ighe d by the dange r of unfair prejudice , rele vant factors i nclude “the number of [phot og raphs] offe red, their g ruesomene ss, their detail, their siz e, whether they are in color or black- and-w hite, whether they are close-up, whether the body depicted is clot h ed or

n ak ed, the availability of other means of proof, and other circ umstances unique t o t h e

5individual case.” Davis v. State , 313 S.W .3d 317, 331 (Tex. Crim. App. 2010); W illiams v. State , 301 S.W .3d 675, 690 (Tex. Crim. App. 2009).

State’s Ex hibit 48 appea

rs in the rec ord as an eig ht-b y -t en -i nch color photogr aph showing a close-up vi ew of the t i ssue of the back of Nutall’s neck and t he bull et l odg ed therein. 3
The photogr aph was introduced during the testimony of Dr. Satish Chundru, Deputy Chief Medica l
Ex aminer for Travis County , who per formed the autopsy . Ex hibit 48 was one of only six autopsy photogr aphs used by the State to show the fata l injury Nutall sustained and, as the trial court noted, the only one depicting the internal injury

. The rec ord ref lects that these six photogr aphs wer e culled from at lea st 50 or more a utopsy photogr aphs.
Ba rr arg ues t hat t he photogra ph had no probative value and thus was not rele vant. Specifica lly , he contends that the photogr aph lacke d probative value beca use (1) he never contested that the cause of Nutall’s death was a g unshot wound to the head, (2) he never contested that he shot Nutall, (3) there was an abundanc e of evidenc e showing Nutall was shot in the head, and (4) wher e the bullet came to rest was not proba tive of any issue the jury

had to dec ide. We disag ree . 4

The rec ord does not ref

lect how the autopsy photogr aphs wer e published to the jury

. The 3 prosec utor asked the medical examiner to use “this pointer” to hig hlight specific details on cer tain photogr aphs, but the size of the imag es whe n display ed is unknown. We note that the rec ord ref lects that at trial Ba

rr did not conce de that he was the individual 4 who shot Nutall. During opening statement, def ense c ounsel arg ued So, y ou g ot to wonder what happene d. What rea lly happene d? Who rea lly fired that shot? Could Stewart have had a g un? Could he have g iven it to one of the other two g uy s that wer e there ? Could one of the other two g uy s have fired the shot and g iven it to [Barr ]? These are things that we have to look at, and listen to the testimony of all the witnesses a

nd decide what re ally

happene d out there[.] The only witness who testified for the defe nse was a woman who was in the parking lot that 6Under the indictment in this case , the St at e h ad t h e burden to prove that Ba rr intentionally or knowing ly cause d Nutall’s death b y s h o o t i n g her with a firea rm. See Tex. Penal Code § 19.02(b)( 1) (providin g t h at p erson commits offe nse of murder if he intentionally or knowing ly cause s death of another individual). Thus, the cause of Nutall’s death (a g unshot wound to the head) and manne r of death (homicide) were releva nt. When testify ing a

bout cause of dea th and manner of death resulting from g unshot wounds , m ed i ca l examiners often testify about the

entra nce wound, the exit wound, and the trajec tory and path of the bullet. “[I ]f verba l testimony is rele vant, photogr aphs of the s ame are also rele vant.” Gallo , 239 S.W .3d at 762; see W illiams

v. State , 937 S.W .2d 479, 488 (Tex. Crim. App. 1996) (holding that autopsy photogr aphs are rele vant
to show manner and means of death) ; Moreno v. Sta t e , 1 S.W .3d 846, 857 (Tex. App.—Corpus Christi 1999, pet. ref

’d) (same)

. Consequently , photogr aphs that depict the natur e, l o ca t ion, and

ex tent of a wound have been decla red probative enoug h to outweig h any prejudicia l eff ect. See

night. She testified that she hear d the g unshot, saw Nutall fall to the g round, and saw Nutall’s cousin next t o her but did not see a ny one else near

by and did not see a

ny one fle e the sc ene. During closing arg ument, defe nse counse l sugg ested that B arr was not the shooter : So, wher e is s o m e of the lack of evidenc e in this case ? The shell casing that was found, the .32, which temporar ily is lost ag ain, that was never proce ssed or tested for fing erpr ints or DNA. Detec tive San ch ez ad m itted on cross-e x amination, that they do at times test that, but they didn’ t i n t h i s case. What would that have told y ou? Well, if it had someone else’s DNA besides [Barr ’s], or someone else’s fing erpr int, whoeve r that might be, that would tell us that bey ond a rea sonable doubt he wasn’t involved. I f his print and DNA wa s o n i t , i t would be the other way . Well, they didn’t test it. Thus, contra

ry to his assertion, the re cord r efle cts that at trial B arr did contest that he shot Nutall.

7Frank v. State , 183 S.W .3d 63, 78 (Tex. App.—For t Worth 2005, pet. ref

’d); Legat e v. State , 52 S.W .3d 797, 807 (Tex. App.—San Antoni o 2 0 0 1 , pet. ref’d). Moreove r, autopsy photogr aphs

are g ener ally admissible unless they d ep ict mutilation of the victim cause d by the autopsy itself.
W illiams , 301 S.W .3d at 690; Rayford v. State , 125 S.W .3d 521, 529 (Tex. Crim. App. 2003); see also Gallo , 239 S.W .3d at 762 (“[A] visual imag e of the injuries appellant inflicted on the victim is evidenc e that is rele vant to the jury ’s deter mination.”).
We reje ct Ba

rr’ s asser tion that the complained- of photogr aph lacks probative value beca use (1) the evidenc e alre ady established that Nutall died from the g unshot wound and (2) it was cumulati v e o f t h e m edica l examiner’s testimony

. A photogr aph is g ener ally admissible if verba l testimony about the matters depicted in the photogr aph is also admissible. Paredes v. State , 129 S.W .3d 530, 539 (Tex. Crim. App. 2004). The fac t that photogr aphs acc ompany oral testimony establishing the same fac ts does not rende r the photogr aphic evidenc e cumulative or of weak probative value. See Gallo , 239 S.W .3d at 76 2 (“ T h e fac t that the jury also hear d testimony
reg arding the injuries depicted [i n the photogr ap h ] d o es n ot reduc e the rele vance of the visual depiction.” ); Chamberlain v. State , 998 S.W .2d 230, 237 (Tex. Crim. App. 1999) (re cog nizi ng that visual evidenc e acc ompany ing testimony g ives fac t finder point of compar ison to test cre dibilit y of witness and v al i d i t y of his conclusions); W illiams , 937 S.W .2d at 487 (autopsy photogr aphs of murder vic tim admissi ble eve n if they mere ly corr oborate other kinds of e vidence ).
Ba rr further arg ues that even if rele vant, the probative value of the photo was substantially outweig hed by unfair prejudice due to the “g ruesomene ss of the photo.” He offe rs no further arg

ument about the purported unfair prejudice

. The autopsy photogr aphs, including State’s

8Ex hibit 48, were admitted for their usefulness in assisting the medic al examiner’s testimony . The

photogr aphs depict the nature , location, and extent of the wound as testified to by Dr. Chundru and thus had the ef

fec t of illustrating he r testimony

. See Frank , 183 S.W .3d at 79. State’s Exhi bit 48 did not rec eive any undue emphasis in terms of siz e, quality , or leng th of time it was display ed, nor

wa s i t emphasized during Dr. Chundru’s acc ompany ing testimony

. Although the photogr aph i s a color c lose-up of the tissue of the back of Nutall’s nec k, it is clini cal in natur e simply establishing the location of the bullet wher e it came to rest inside Nutall. I t is not particula rly gru esome or detailed, it is not e nhance d in any way , and it portray s no more than the c ondition of Nutall due to the g unshot wound Ba

rr inflicte d. See Young v. State , 283 S.W .3d 854, 874–75 (Tex. Crim. App. 2009). The g ruesomene ss of the photogr aph, if any , is attributable to the subject matter it depicts, and the photog raph is no more g ruesome than would be expected in this sort of cr ime. See G allo , 239 S.W .3d at 763. I n other words, the complained- of autopsy photogr aph depicts what Ba rr cause d and what Dr. Chundru’s verba l testimony proper ly descr ibed. See Saldano v. State , 232 S.W .3d 77, 101–02 (Tex. Crim. App. 2007).

Under the circ umstances of this case , we find that the trial court’s decision to admit the complained- of photogr aph was within the zone of rea sonable disag ree ment and was not an abuse of discre tion. W e over

rule a ppellant’s sole point of er ror.

CLERICAL ERRORS IN JUDGM ENT
Howeve r, we observe that the trial court’s judgme nt of conviction contains cler ical

er ro rs . First, the judgme nt ref lects t hat t he judgment was enter ed on Dec ember 8, 2011 when th e

rec ord demonstra tes that it was enter ed on De cembe r 9, 2011.

9Second, the judgme nt states that the “F indings on Dea dly W eapon” are “not

applicable .” Howeve r, the jury returne d a verdic t that found Ba rr “Guilty of the offe nse of murder, as allege d in the i ndictment.” The indictment alleg ed that B arr intentionally

or knowingly cause d Nutall’s death “by shooting her with a fi re ar m . ” A firea rm is a deadly wea

pon per se. See Tex. Penal Code § 1.07(17)( A) (def ining “dea dly wea

pon” as “a firea

rm”). When a jury is the fac t finder,

an aff irmative deadly wea

pon finding is made when the wea pon alleg ed in the indictment is a deadly

wea pon per se and t h e v erdic t states that the defe ndant is g uilty “as char g ed in the indictment.” Lafleur v. State , 106 S.W .3d 91, 95 (Tex. Crim. App. 2003) (apply ing Polk v. State , 693 S.W .2d 391, 396 (Tex. Crim. App. 1985)). Acc ording ly , the jury made a n aff irmative dea dly

wea pon finding

. Third, the judg ment indicates that the pleas to the enhanc ement para g raphs a nd the finding s on the enhanceme nt para g raphs were “not applica ble.” However , the record reflec ts that

at the punishment hear ing Ba rr enter ed pleas of “True ” to the enhanc ement para g raphs alleg ed in the
State’s Notice of Enhancem ent Paragraphs . The trial court ex plicitly found t he allegations in the notice to be true , indicating that his findings “ [m ade] this a habitual offe nse.”

This C o u rt has authority to modify incorre ct judgme nts when the nece ssary information is available to do so. See Tex. R. App. P. 46.2(b); Bigley v. State , 865 S.W .2d 26, 27–28 (Tex. Crim. App. 1993). Since the nece ssary information is available here , we modify the judgme nt of conviction to ref

lect that t h e “D at e J udg ment Entere d” was Dec ember 9, 2011, and that the
“F indings on Dea dly Weapon” wer e “YES, A FI REARM.” We further modify the judgme nt t o ref lect that t h e pleas to the “1st Enhanc ement Parag raph” and “2nd Enhanc ement/Habitual

10Parag raph” wer e “TRUE” and to ref lect that the finding s on the “1st Enhanc ement Parag raph” and “2nd Enha

nceme nt/Habitual Parag raph” wer e “T RUE.”

CONCLUSION Finding no abuse of discretion in the admission of State’s Ex hibit 48, we modify the judgme nt of conviction as noted a bove and a ffirm the judg ment as modified.

__________________________________________ Melissa Goodwin, Jus tice
Be fore Chief J ustice Jones, J ustices Goodwin, and F ield Modified and, a s Modified, Aff irmed Filed: F ebrua

ry 14, 2014 Do Not Publish

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