In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-15-00357-CR 

MICHAEL ANTHONY COLE PHILLIPS, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 66th District Court 

Hill County, Texas 

Trial Court No. 38,331, Honorable A. Lee Harris, Presiding 

 

July 11, 2016 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. 

Appellant Michael Anthony Cole Phillips pled guilty before a jury to the firstdegree felony offense of aggravated robbery with a deadly weapon1

and was sentenced 

to a term of life in prison. Through one issue, appellant contends the trial court erred by 

admitting ten photographs into evidence during the punishment phase of trial. We will 

affirm the judgment of the trial court. 

 

1 TEX. PENAL CODE ANN. § 29.03 (West 2014).
2

Background

After appellant pled guilty to the indicted charge and pled true to its enhancement 

allegation, the jury heard punishment evidence.

The State’s evidence showed that in May 2014, appellant and another man broke 

into a home owned by Mr. and Mrs. Harless. The Harlesses’ dogs alerted them and Mr. 

Harless confronted the men with a gun. The men hit Mr. Harless and took his gun. 

They then beat the couple and took several items from the house. Mr. Harless 

sustained serious, permanent injuries from the beating. Mrs. Harless also sustained 

injuries.

Mrs. Harless testified to the nature and the extent of the injuries she and her 

husband sustained. Mr. Harless did not testify. During the testimony of a police officer, 

the State introduced, over appellant’s objection, three photographs showing blood in the 

Harlesses’ home, and seven photographs of Mr. and Mrs. Harless in the hospital. 

Analysis

Through one issue, appellant argues the trial court erred by admitting the ten 

photographs during the punishment phase of trial. His contention focuses on Rule of 

Evidence 403.

Section 3(a)(1) of article 37.07 governs the introduction of punishment-stage 

evidence. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West 2015). It provides in 

relevant part, “[r]egardless of the plea and whether the punishment be assessed by the 
3

judge or the jury, evidence may be offered by the state and the defendant as to any 

matter the court deems relevant to sentencing . . . .” Id. 

Even if punishment phase evidence is deemed relevant, it nevertheless is subject 

to analysis under Rule of Evidence 403. Rodriguez v. State, 203 S.W.3d 837, 843 (Tex. 

Crim. App. 2006). “The admissibility of a photograph is within the sound discretion of the 

trial judge.” Shuffield v. State, 189 S.W.3d 782, 786 (Tex. Crim. App. 2006). 

Accordingly, we review the trial court's analysis under an abuse-of-discretion standard 

and will overturn its ruling only if it falls outside the “zone of reasonable disagreement.”

Rodriguez, 203 S.W.3d at 843.

Rule 403 provides that relevant evidence, which is usually admissible, may be 

made inadmissible when its probative value is substantially outweighed by the danger of 

unfair prejudice. TEX. R. EVID. 403. In the analysis, the following factors are pertinent, 

but not exclusive: (1) how probative the evidence is; (2) the potential of the evidence to 

impress the jury in some irrational, but nevertheless indelible way; (3) the time the 

proponent needs to develop the evidence; and (4) the proponent's need for the 

evidence. Shuffield, 189 S.W.3d at 787 (citing Montgomery v. State, 810 S.W.2d 372, 

389-90 (Tex. Crim. App. 1991) (op. on reh'g)). Specifically in the context of photographic 

evidence, these elements have been encapsulated into the following considerations: the 

number of photographs, the size of the photograph, whether it is in color or black and 

white, the detail shown in the photograph, whether the photograph is gruesome, 

whether the body is naked or clothed, and whether the body has been altered since the 

crime in some way that might enhance the gruesomeness of the photograph to the 

appellant's detriment. Id.; Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 
4

1995). See also Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002) (similar 

considerations). Generally, photographs are admissible if testimony about the matters 

depicted in the photographs would be admissible and their probative value is not 

substantially outweighed by any of the Rule 403 counter-factors. Threadgill v. State, 146 

S.W.3d 654, 671 (Tex. Crim. App. 2004).

Exhibits 52, 53 and 54 depict different views of a pool of blood on the floor 

immediately in front of an upholstered chair in the Harless home. Two of the three 

views also show blood splatters on the wall and window adjacent the chair, and on 

decorative pillows in the chair’s seat. The third is a close-up photograph of the pool of 

blood, showing an unfired cartridge standing upright in the blood.

Exhibit 55 is a photograph of Mrs. Harless, taken in the hospital. She is wearing a 

hospital gown. The picture bears the date of their attack in May 2014, and shows the 

beaten and bruised condition of her face, along with small amounts of dried blood. The 

other six photographs, exhibits 58 through 63, are of Mr. Harless. He also is wearing 

hospital clothing. Four of them also bear the date of their attack and appear to have 

been taken in the hospital shortly after his head wounds were stitched. Bloody gauze is 

present. These four photographs depict different views of a large stitched wound at his 

hairline and mid-forehead, and at least two other stitched wounds in the back of his 

head, along with smaller wounds. The two other pictures, apparently taken days later, 

show two views of the forehead wound and other wounds on the top of Mr. Harless’s 

head. 
5

In her punishment phase testimony, Mrs. Harless described their attack by 

appellant and his cohort. Her testimony is detailed, occupying some thirty pages of 

reporter’s record, with twelve of those pages including descriptions of the injuries the 

couple sustained. She told of her husband’s four brain surgeries, and of his debilitated 

condition. On appeal, appellant characterizes her descriptions as “compelling and 

graphic, especially as to the permanent damage to [Mr. Harless’s] skull.” Appellant 

argues her testimony alone was sufficient to illustrate for the jury the gravity of their

injuries. 

We do not agree the injury photographs were cumulative of Mrs. Harless’s 

testimony. Our courts recognize that photographs of wounds suffered by victims in the 

incident on trial can be helpful to the jury determining punishment because they show 

more than testimony can convey. See Erazo v. State, 144 S.W.3d 487, 493-94 (Tex. 

Crim. App. 2004). The photographs of injuries the victims here suffered during 

appellant’s robbery are thus highly probative, and have little potential to impress the jury 

in an irrational way. Introduction of the photographs required little time at trial, and 

carried no risk of distracting the jury from the issues at hand in the punishment phase. 

See Sonnier, 913 S.W.2d at 519 (noting photographs in that case were “powerful visible 

evidence,” and that their power “emanates from nothing more than what the defendant 

has himself done”). 

The injury photographs are not especially gruesome. The injuries as depicted 

have been treated, and none are open wounds. None of the pictures depict surgical 

procedures.
6

Appellant refers to the crime-scene photographs with their pool of blood as 

“disgusting” and “very gruesome.” We will agree the coagulating pool is not a pleasant 

sight, and thus might be called “gruesome.” See Sonnier, 913 S.W.2d at 519 

(photographs there were gruesome because “disagreeable to look at”). But we find 

these photographs relevant to the jury’s task for the same reason the injury photographs 

are helpful. The pooled and splattered blood serves to illustrate the brutality of the 

attack on the Harlesses and the horrific consequences of appellant’s unlawful intrusion 

into their home. See Erazo, 144 S.W.3d at 493 (noting crime-scene photograph assists 

jury in visualizing the scene). Their gruesomeness alone does not demonstrate error in 

their admission. See Sonnier, 913 S.W.2d at 519 (court does not err merely because it 

admits gruesome photographs into evidence). The close-up photograph is no more 

gruesome than the other two, and more clearly shows the unfired cartridge standing in 

the blood.2

The ten photographs each depict the direct consequences of appellant’s actions. 

The photographs are in color, each a standard 5 x 7 inch size. None had been altered.

Appellant has not demonstrated their probative value was substantially outweighed by a 

danger of unfair prejudice from their admission before the jury. We conclude the trial 

court did not abuse its discretion by admitting them, and thus we overrule appellant’s 

sole issue on appeal.

 

2 There was a suggestion in testimony that the unfired cartridge was ejected from 

Mr. Harless’s 9mm firearm at some point during his encounter with the robbers. There 

also was testimony that, after the robbers took the firearm, they exchanged gunfire with 

the couple’s employee, who came in response to Mrs. Harless’s telephone call.
7

Conclusion

Having resolved appellant’s sole issue against him, we affirm the judgment of the 

trial court.

James T. Campbell

 Justice

Do not publish.