* John T. Boyd, Chief Justi ce (Re t.), Sev enth Court of Ap peals, sitting by

assignment
. NO. 07-01-0506 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E NOVEM BER 18, 2002

______________________________
RICKY HUCKAB EY, APPE LLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 13 7TH DIST RICT COURT OF LUBBOCK COUN TY; NO. 2000-434352; HON ORABLECECIL G. PURYEAR, JUD GE

_______________________________ Before QUINN and REAVIS, JJ. and BOYD, S.J. *
Pursuant to a plea of not guilty, appellant Ricky Huckabey was convicted by a jury of burglary of a habitation with intent to com mit aggravated assault with a deadly w eapon finding and punishm ent was imposed at confinement for life. After this Court dism issed2

appell ant’s purported appeal for an untim ely notice of appeal, purs uant to a post-conviction wri t of h abe as corp us, theCou rt o f C rim inal A ppe als g ran ted an o ut- of- tim e ap pea l. Presenting one issue, appellant contends the trial court erred in failing to s ustain his tim ely objection to inflamm atory and prej udic ial ph oto gra phs . B ase d up on t he r atio nale ex pr es se d h er ei n, we a ff i rm. Com plainant testified that in February 2000, she and appellan t, a hom ose xu al, be ca me friends w hile she and her hus band w ere sepa rated. Sever a l mont hs later, app ellant ne eded a place to stay and m oved in briefly with com plainant, who was then reunited with he r husband. Appellant was given a key, but su rrendered it when he w as asked to m ove out approx imately three w eeks prior to shooting com plainant on August 4, 2000. According to testim ony fro m a Lubbo ck Po lice Officer, com plainant explained that after appellant moved in w ith her, he becam e erratic, angry, harassing, and threatening and was asked to m ove out. On the evening of the shooting, after complainant got off w or k at 7:00 p.m ., she sh op pe d f or gr oc er i es an d t he n we nt ho me to begin dinner for her husband and another couple. Her husband w as not scheduled to get off w ork until 10:00 p.m. Upon entering her hom e, com plainant was confronted by appellant, who pointed a gun at her and directed her to sit on the floor or he w ould shoot her. According to complainant, appellanthad her tape her hands together. D uring the incident, compl ain ant’s husband telephoned and appellant handed her a cordless phone and told her what to say. Her husband kept as king3

what w as wrong an d eve ntu ally shetold him to call 911 because appellant was going to shoother in the head. At that point, appellant shot com plainant in the chin and she slumped ove r w ith h er h air covering her face. Although s he could not see appellant, she heard him preparing to fire a second time. After she w as shot a second time in the head, she held her breath and played dead. W hen she was sure appellant had left through the garage, she wen t out the front door tow ards a neighbor’s house, but only ma de it to the fro ntyard. After off

icers arrived, she identified appellant as the shooter and w as the n transported to the hospital. A police investigation verified that com plainant still had bags of groceries in her car and that a set of keys wa s still in the front door of her hom e. Appellant wasarreste d sever al days later. Bya sole point of error, appellant c ontend s the trial court improperly adm itted photographs num bered State’s E xhibits 18 through 24. W e disagree. The photographs depict the following:

• No. 18–the top of complainant’s bloody head ;

• No. 19–com plainant ’s left hand bloody and swo llen from a bullet wound;

• No. 20–the front and left side of com plainant’ s b loody face with a metal instrument ex posing her teeth;

• No. 21–the rig ht side of complai nant’s face with her teeth ex posed by a me ta l i ns tr ume nt as wel l as he r r i gh t s ho ul de r a nd ar m;

• No. 2 2–the left side of com plainant’s bloody face with a m etal instrument in her m outh;4

• No. 23–a close-up view of the leftside of com plainant’s face covered in blood; and

• No. 24–a close-up of the top portion of the leftside of complain ant’s face and head w ith a ruler beside her head. W hen the State m oved to introduce these seven photographs, defense counsel made the following objection: Your Honor, we’ve adm itted during openi n g statem ent that m y client shot [com plainant] during this incident. W ith thatin mind, the probative value of these photos is far out weighed by the ir prejudicial effect. The State’s j us t t rying to get these in for the em otio nal a spe ct, and the y ar e no t ne ces sar

y in thistria l. Following the objection, the C ourt announced: I think the State i s allowed to pro duce all of its evidence, and I am going to overrule your objection. Rule403 of the Texas Rules of Evidence provides that, “[a]lthough relevant, evidence m ay be excluded if i ts probati ve value i s s ubsta ntia lly o utw eigh ed b y th e da nge r of unf air prejudice . . . .” The rule creates a presumption of ad missibil ity of al l rel evant evi d ence and authorizes the trial court to exclude such ev idence only when there is a “clear disparity between the degree of prej udice of the offered evidence and its proba tive value. ” Mozon v. State, 991 S .W.2d 841, 847 (Te x.C r.App. 1999). W hen a proper Rule 403 obj ect ion is made, a trial court has no discretion whether to engage in a balancing test. Santella n v. State, 939 S.W.2d 155, 173 (Tex.Cr.App. 1997). Appellant argues that th e co urt’s5

announcem entdem ons tra testha t it did n ot correct lyperform a Rule 403 balancing test; however, the trial court is presumed to have engaged in the required balancing test when a Rul e 40 3 ob

j ect ion is ma de unless the record indicates that the trial court refused to do so. Roja s v. State, 986 S.W.2d 241, 250 (Tex.Cr.App. 1998); Wi lliams v. S tate, 958 S.W.2d 186, 195 (Tex.C r.App. 1997); see also Howeland v. State, 966 S.W.2d 98, 103, (Tex.App.–H ouston [1st Dist.] 1 998), aff’d , 990 S.W.2d 274 (Tex.Cr.App. 1999) (holding that th e court

does not have to conduc t a form al hearing or announce on the record that ithas m entally conducted the Rule 403 balancing test). No error is established w hen the trial court sim ply overrules a Rule 403 object ion. Santellan , 939 S.W .2d at 173. Because thisrecord does not dem onstrate t hat the tria l court refused to conduct aRule 403 balancing t est, we apply the presum ption that the balancing test was com pleted and conclude that the trial court’s announcem ent referred to all of the phot ographs that the State offered into evidence. Moreo ver, eve n if

the trial court’s ruling that “the State is allowed to produce all of its evidence” was overbroad, in reviewing a trial court’s ruling on the adm issibili ty of evidence, w e m ust

uph old t he r uling if it

is re aso nab ly s upp ort ed b y th e re cor d an d is correct under any theory of law applicable to the case. W illover v. State, 70 S.W.3d 841, 845 (Tex.Cr.A pp. 2002); see also Ro mero v. S ta te , 8 00 S.W .2 d 5 39 , 5 43 (T ex. Cr.App

. 1990). Thus, we will review the propriety of the adm ission of the photographs to determ ine whether the trial court’s ruling may be upheld despite the incorrect reas on f or doing so.6

Appella nt’s objection w as grounded upon defense cou nse l’ s as ser tion tha t du ring his opening statem ent, he adm itted that appellant shot the com plainant and thus, adm ission of t he p hotogr

aph s w as p rej udic ial. The adm ission of

photographs into evidence is w ithin the discretion of the trial court and will not be disturbed absent an abuse of discretion. W yatt v. Sta te, 23 S.W.3d 18, 29 (Tex.Cr.A pp. 2000). General ly, a photograph is adm issible if verbal testimony as to m attersdepicted in the pho tograph is also adm issible. Em eryv. State, 881 S.W.2d 702, 710 (Tex.Cr.A pp. 1994), cert. deni ed , 513 U.S. 11 92, 115 S.Ct. 1257, 131 L.Ed.2d 137 (1995); Long v. State, 823 S.W.2d 259, 271-72 n.18 (Tex.C r.App. 1991), cert. deni ed , 505 U.S. 1224, 11 2 S.Ct. 3042, 120 L.Ed.2d 910 (1992 ). A non-ex haustive list of factors to consider in determ ining w het her thepro bat ive valueof p hotogr aph s is outweighed by t he dange r of unfair prejudi ce inclu de the number of exhibits offer ed, their gruesomeness, det ail, and si ze, whet her they are black and w hite or color, whether they are close-up, whether the body is naked or clothed, and the availabili tyof other m eans of proof and the circumstances unique to e ach case. S ee W illi ams v. State, 95 8 S.W.2d 186, 173 (Tex.Cr.A pp. 1997); accord Sonnier v. State, 913 S.W.2d 511, 518 (Tex.Cr.A pp. 1995) and Emery, 881 S.W.2d at 710. Com plainant tes tifie d th at t he f irst bulle t totheleft

sideof h er c hin shattered her jaw and that bone grafts w

ere used to rebuild her

chin. She also lost five teeth and the bullet remainslodged in herthroat for fear that removal will seve r a main artery. A second bullet7

to her head exited below her ear an d cam e to rest in the palm of her left hand and w as sur gica llyremoved. A surgical nurse testified that the bullet from com plainant’s hand was removed during surge ry. The seven photogra phs arein c olor and are app rox im ate ly t hre e an d on e-h alf by five inches in size. They depict the severity of co mplainant’s inj uries from different angles and distances. The trial strategy by the defense was t hat appellant was only guilty of the lesser included offense of

aggr avated assaul t and the photogr aphs were cumulative evid enc e us ed b y th e S tate toelic itan “inappropriate emotional resolution” of the issues bythe j ury. TheState, how ever, a rg ues tha t the photographs w ere properly admitted because of the probative value to corroborate com plainant’s contested v ersion of the incident.
Th e Court of Criminal Appeals has rejected the pr opositi on that visual evidence accom panying ora l test imony is cum ulative or that it is of insignifi cant probative value. Cha m ber lain v. State, 99 8 S.W.2d 230, 237 (Tex.Cr.App. 1999), cert. deni ed , 528 U.S. 1082, 120 S.Ct. 80 5, 145 L.Ed.2d 678 (2000). “Visual evidence accom panying testimony is most persuasive and often give s the fact finder a point of comparison against which to test the cre dibility of a w itness an d the v alidity of his conclusions .” I d. Co mp lain ant’s credibili tywas at

issue because appellant’s defense w as that she had permitted him in her ho me for a drug deal. The photographs suppo rt com pl ainant’s ve rsion of how she was shot, and altho ugh bloody and grue som e, depict

nothing m ore than “the reality of the brutal8

crim e com m itted.” Id. Their depiction of the reality of the offense m akes thempowerful visual evidence an d t hu s, pr ob at i ve of th e S ta te ’s ca se . T hu s, we p re su me the trial co urt engaged in a Rule 403 balancing test and conclude there wasno abuse of discretion in admitting State’s Ex hibits 18 through 24. Issue one is overruled. Accordingly, the j udgme nt of the trial court is affirmed.

Don H. Rea vis Justice Do not publish.