Opinion filed January 6, 2011



## In The 

# Eleventh Court of Appeals

__________



### No. 11

- 09

- 00303

- CR

__________

JESSIE LEONARD MCCORD , Appellant

V.

STATE OF TEXAS , Appellee

On Appeal from the 35 th District Court

Brown County, Texas

Trial Court Cause No. CR19860

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

The jury convicted Jessie Leonard McCord, upon his plea of guilty, of murder. The jury

found that appellant did not act under the immediate influence of sudden passion and assessed

his punishment at confinement for life and a $10,000 fine. We affirm.

In his sole issue on appeal, appellant argues that the trial court abused its dis cretion by

admitting postmortem pictures of the victim. Specifically, appellant contends that prejudicial

value of State’s Exhibit Nos. 6 and 7

– pictures of the victim’s body when she was discovered in

the landfill

– out weigh t ed any probative value unde r T EX

. R. E VID

. 403.2

Appellant testified that he and the victim had been married and divorced. After the

divorce, they lived togeth er off and on. Appellant testified that the victim was laughing when

she told him that she had been sleeping with another man. There was a knife on the

entertainment center, and appellant thought the victim was going to grab it. He grabbed the knife

first and stabbed her two or three times before he realized what he had done. He wrapped her

body in a blanket, drove to the elementary school, and put her body in the dumpster.

Brown County Sheriff’s Department Investigator Scott Bird testified that the victim’s

body was discovered in the landfill. The body was at the bottom of the pit in front of a

bulldozer. It appeared t hat the bulldozer had run over the body. The legs were tangled with each

other, the entrails were outside of the body, and the face was “ripped off the skull.”

The autopsy revealed that the cause of death was a stab wound above the victim’s right

colla rbone. State’s Exhibit Nos. 6 and 7 depicted the fatal stab wound to the victim’s right

collarbone as her body appear ed in the landfill.

The trial court found that the probative value out weighed the prejudicial value and

admitted State’s Exhibit Nos. 6 and 7. The Court of Criminal Appeals recently addressed the

appellate review of the admission of graphic pho tographs pursuant to Rule 403 in Wilkins v.

State

, No. AP

- 75878, 2010 WL 4117677 (Tex. Crim. App. Oct

. 20, 2010). Citing Erazo v. State

,
144 S. W .3d 487, 489 (Tex. Crim. App. 2004)

, and Montgomery v. State , 810 S. W 2d 372, 391

( T ex. Crim. App. 1991), the Wilkins court stated:

A Rule 403 analysis includes, but is not limited to, the following factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent ’ s need for the evidence. In the context of photographs, we also consider factors including “the number of photographs , the size, whether they are in color or are black and white, whether they are gruesome, whether any bodies are clothed or naked, and whether the body has been altered by autopsy.” The
trial court's decision to admit or exclude such evidence is reviewed u nder an abuse of discretion standard ( footnotes omitted ).

Wilkins , 2010 WL 4117677, at *4.

In conducting its balancing analysis under Rule 403 and Montgomery , the trial court

determined that, while both exhibits were gruesome, each had probative value in depicting the

fatal stab wound. The trial court redacted the upper portion of State’s Exhibit No. 7 admitting3

only the lower portion. The record reflects that the trial court did not abuse its discretion. The

sole issue is overruled.

The judgment of t he trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

January 6, 2011

Do not publish. See T EX

. R. A PP

. P. 47.2(b).

Panel consists of: Wright, C.J., McCall, J., and Strange, J.