Affirmed and Opinion filed June 21, 2012.

In The

Fourteenth Court of Appeals 

NO. 14-11-00632-CR, 

NO. 14-11-00639-CR

QUINCY JEJUAN NEELYS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause Nos. 1284103, 1284540

O P I N I O N

Appellant Quincy Jean Neelys appeals his convictions for robbery and aggravated 

assault. In appealing his conviction for robbery, appellant challenges the sufficiency of 

the evidence to support the conviction and asserts he was entitled to a jury instruction on 
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a lesser-included offense of theft. In appealing the conviction for aggravated assault, 

appellant asserts the trial court erred in cumulating his sentences for both the aggravated 

assault and robbery convictions, resulting in double jeopardy. Appellant also asserts 

error in the admission of certain evidence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was charged by two, separate indictments with the felony offenses of 

aggravated robbery and aggravated assault, stemming from incidents that occurred on 

two different occasions. 

Robbery (Cause Number 1284103)

Appellant pleaded ―not guilty‖ to the charge for aggravated robbery and proceeded 

to trial on July 18, 2011, in cause number 1284103. At trial, both appellant and his sister, 

the complainant, testified. It is undisputed that appellant went to his sister’s home on 

November 3, 2010, to retrieve a check. According to the undisputed evidence, the two 

siblings engaged in an altercation over the check, which apparently was in their mother’s 

possession. According to the sister, appellant pulled a firearm from the waistband of his 

pants, placed the firearm against her forehead, and threatened to kill her in front of her 

children. The sister testified that appellant grabbed her cell phone as she was attempting 

to call for help; appellant fled from her home with the phone. A witness saw appellant 

leaving the sister’s home and observed appellant putting a hammer in his jacket. 

Although appellant denied brandishing a firearm, he admitted that he ―snatched‖ 

the cell phone from his sister’s hand as he left and intended to return it to his sister. 

Appellant claimed that he was just playing with his sister and that he never had a chance 

to return the cell phone because he was arrested four days later. 

The trial court charged the jury, giving instructions on aggravated robbery and the 

lesser-included offenses of robbery and theft from the person of another. The jury found 

appellant guilty of the lesser-included offense of robbery. 
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At the punishment phase of trial, all of the evidence from the guilt-innocence 

phase was entered into evidence. Additionally, an officer testified about being dispatched 

to a home on November 7, 2010, in response to calls about an assault in progress. 

Through a window, the officer observed appellant, holding two hammers, and a thenunidentified bleeding woman, reaching through the broken window with her hand, asking

for help. Officers arrested appellant. Appellant had blood on his clothing and hands. 

Investigating officers recovered three hammers and a bottle of lighter fluid at the scene. 

They observed a large amount of blood smeared or spattered throughout the home, which 

was in disarray. Photos of appellant taken at the scene as well as photos taken of the 

scene were admitted into evidence in the punishment phase. 

Appellant’s aunt, the bleeding woman that police observed through the window,

testified at the punishment hearing about the events surrounding the charged offenses. 

She testified that on November 7, 2010, appellant threatened to kill her, struck her

repeatedly with two hammers, forced her to take pain medication, squirted her body with 

lighter fluid, attempted to light the gas stove in the home, and burned her with hot water 

in a bathtub before law enforcement officers arrived on the scene to help her. She 

sustained a number of chemical burns and injuries requiring multiple surgeries. 

Appellant also testified at the punishment hearing, despite counsel’s advice not to 

testify, and claimed that he caused his aunt’s injuries to her face with his fists or by 

―ramming‖ her head into a wall in self-defense because she ―rushed‖ at him. According 

to appellant, she started the fight when she told him to leave her apartment. He claimed 

that the burns she received were actually bed sores. Appellant denied hitting his aunt

with hammers, but admitted he was holding a hammer when the officers arrived. 

Appellant’s older cousin testified that on one occasion she heard him threaten to 

kill military members, white people, and police officers. Appellant was sentenced to 

twenty years’ confinement for the robbery in cause number 1284103.
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Aggravated Assault (Cause Number 1284540)

Appellant pleaded ―not guilty‖ to the charge of aggravated assault and proceeded 

to trial on July 22, 2011, in cause number 1284540. At trial, appellant’s aunt, the 

complainant, testified that appellant had been staying in her apartment during the week 

before the incident. On the morning of November 7, 2010, appellant attended church 

with his aunt, who is a pastor. The aunt remained at church while appellant returned to 

the apartment with a key his aunt had loaned him. When the aunt returned to the 

apartment, she reminded appellant that he could not stay with her past one week. 

According to the aunt, after this conversation, appellant threatened to kill her, exhibited 

two hammers, forced her onto a bed, and forced her to take pain medications. The aunt 

claimed to have spat out the pills when appellant left the room. The aunt described how 

appellant returned to the room and squirted lighter fluid on her body, causing burns to her 

body. The aunt testified that appellant hit her with the hammers and forced her into a 

bathtub, where he poured hot water on her and choked her. Appellant ordered his aunt to 

crawl to her bedroom; appellant then attempted to ignite the gas stove in the apartment. 

The aunt claimed to have escaped to the living room and attempted to exit through a 

window while appellant returned and struck her with the hammers and kicked her. 

People outside were able to see through the window inside the apartment and 

summoned help. Responding officers saw appellant inside the apartment with hammers 

in his hands and blood on his clothing. Officers arrested appellant immediately and 

searched the scene for evidence.

The jury found appellant guilty as charged. At the punishment hearing, the State 

sought to call appellant’s sister to testify about the incident on November 3, 2010, for 

which appellant had been convicted of robbery in cause number 1284103. Appellant 

objected to the testimony as extraneous-offense evidence and a violation of double 

jeopardy constitutional protections. The trial court overruled the objections, stating that 

because the jury did not convict appellant of aggravated robbery, the sister could not 
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testify about appellant’s use of a gun in commission of the robbery. The sister testified 

about the events in her home on November 3, 2010, in which appellant took her cell 

phone; she did not refer to a gun in her testimony. Appellant’s cousin also testified about 

appellant’s threats to kill police officers, military members, and white people.

Appellant was sentenced to twenty years’ confinement for aggravated assault. The 

State moved to cumulate the sentences in both cause numbers. The trial court granted the 

motion over appellant’s objections. Appellant now challenges his convictions in each 

case.

ANALYSIS

Appellant has filed separate appellate briefs relating to the two separate cause 

numbers and the respective appeals. Regarding the appeal from appellant’s robbery 

conviction in cause number 1284103, appellant challenges the sufficiency of the evidence 

to support his conviction and claims he was entitled to an instruction on the lesserincluded offense of theft. In his appeal from the conviction for aggravated assault in 

cause number 1284540, appellant claims the trial court erred in the following ways: (1) 

improperly ordering his sentences to be served cumulatively in violation of the 

constitutional prohibition against double jeopardy; (2) improperly admitting into 

evidence testimony with ―pervasive religious tones‖; and (3) improperly admitting into 

evidence a photograph in which appellant is depicted wearing shackles.

Is the evidence sufficient to support a conviction of robbery?

In his first issue of appellant’s appeal from cause number 1284103, appellant 

asserts the State offered no evidence that appellant intended to deprive his sister, the 

complainant, of her cell phone. In evaluating a sufficiency challenge, we view the 

evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 

111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe 

the State’s evidence or believe that appellant’s evidence outweighs the State’s evidence. 

Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be 
6

overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. 

Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact ―is the 

sole judge of the credibility of the witnesses and of the strength of the evidence.‖ 

Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact may 

choose to believe or disbelieve any portion of the witnesses’ testimony. Sharp v. State, 

707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we 

presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. 

State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact 

could have found the essential elements of the crime beyond a reasonable doubt, we must 

affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

A person commits the offense of robbery if, in the course of committing theft and 

with intent to obtain and maintain control of property, that person ―(1) intentionally, 

knowingly, or recklessly causes bodily injury to another; or (2) intentionally or 

knowingly threatens or places another in fear of imminent bodily injury or death.‖ Tex. 

Penal Code Ann. § 29.02 (West 2011). The phrase ―in the course of committing theft‖ 

means ―conduct that occurs in an attempt to commit, during the commission, or in 

immediate flight after the attempt or commission of theft.‖ Tex. Penal Code Ann. § 

29.01 (West 2011). A person commits the offense of theft if that person unlawfully 

appropriates property with intent to deprive the owner of the property. Tex. Penal Code 

Ann. § 31.03(a) (West 2011). Appellant does not dispute that he took the phone and does 

not challenge the jury’s finding that he threatened his sister.

Appellant asserts that there is no evidence that he intended to deprive his sister of 

the phone because the altercation stemmed from the check and not the phone. According 

to appellant, there is no nexus between the theft of the cell phone and his threats because 

the altercation, during which appellant threatened his sister, occurred over a check. For 

support, appellant relies on the case of Sorrells v. State, 343 S.W.3d 152, 158 (Tex. Crim. 

App. 2011). Generally, as noted in Sorrells, a theft occurring immediately after an 
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assault will support an inference that the assault was intended to facilitate the theft. Id. at 

157. While an accused’s motive in committing an assault may be probative of the nexus 

element, the nexus element is not an element of an offense of robbery. Id. at 158. In 

applying Sorrells to the case at hand, we note that the nexus element requires that the 

threats were made ―in the course of committing theft,‖ which is defined as ―conduct that 

occurs in an attempt to commit, during the commission, or in immediate flight after the 

attempt or commission of theft.‖ See Tex. Penal Code Ann. § 29.01(1); Sorrells, 343 

S.W.3d at 158. Because the theft of the cell phone occurred immediately after 

appellant’s threats to his sister, the evidence is sufficient to support the jury’s reasonable 

inference that the threats were made in the course of committing theft. See Tex. Penal 

Code Ann. § 29.01(1); Sorrells, 343 S.W.3d at 157.

Appellant asserts there is no evidence of what he planned to do with the cell phone 

beyond his own testimony that he intended to return it. Criminal intent may be inferred 

from an accused’s acts, words, or conduct, as well as the surrounding circumstances of 

the acts. Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998). In determining that 

appellant did not intend to return the phone, the jury was entitled to draw inferences from 

appellant’s conduct, namely that he forcibly took the cell phone from his sister’s hands 

and immediately fled from her home with the phone. See Ellis v. State, 877 S.W.2d 380, 

383 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). A rational juror could have found 

that appellant had no intention of returning the phone, given that he did not do so during 

the four days between the time he took the phone and his arrest. See id. at 383; Williams 

v. State, 770 S.W.2d 948, 949 (Tex. App.—Houston [1st Dist.] 1989, no pet.)

(concluding that sufficient evidence supported conviction for theft from a person when 

the record reflects an accused took a necklace and fled without making any efforts to 

return the necklace). The evidence is sufficient to support appellant’s conviction for 

robbery. See id. We overrule appellant’s first issue related to cause number 1284103.
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Was appellant entitled to a an instruction on theft as a lesser-included offense?

In appellant’s second issue, as relevant to his appeal from cause number 1284103, 

appellant asserts that the jury should have been charged with an instruction on theft as a 

lesser-included offense. He claims that although the trial court granted his request and 

instructed the jury on the lesser-included offense of theft from a person, the trial court 

improperly denied his request for an instruction on theft as a lesser-included offense of 

robbery.

An offense is a lesser-included offense if:

(1) it is established by proof of the same or less than all the facts required to 

establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious 

injury or risk of injury to the same person, property, or public interest 

suffices to establish its commission;

(3) it differs from the charged offense only in the respect that a less 

culpable mental states suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise 

included offense.

Tex. Code Crim. Proc. Ann. art. 37.09 (West 2006).

An accused is entitled to an instruction on every defensive issue raised by the 

evidence. Id. art. 36.14 (West 2007). To warrant a jury-charge instruction on a lesserincluded offense, a defendant must demonstrate that (1) the elements of the lesser offense 

are contained within the proof necessary to establish the charged offense as pleaded in the 

State’s indictment, and (2) the record contains some evidence by which a rational jury

could conclude that if the accused is guilty, then the accused is guilty of only the lesser 

offense and not the greater offense. See Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. 

App. 2007 (applying ―cognate-pleadings approach‖ as sole test in first step in 

determining whether a party is entitled to a lesser-offense instruction).

As reflected in the indictment, appellant was charged with unlawfully, while in the 

course of committing theft of property owned by the sister, and with intent to obtain and 
9

maintain control of the property, intentionally and knowingly threatening and placing the 

sister in fear of imminent bodily injury and death.1 See Tex. Penal Code Ann. § 29.02. 

Theft is a lesser-included offense of both robbery and aggravated robbery. Bignall v. 

State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). The statutory elements of aggravated 

robbery include the commission of robbery, and an element of robbery includes the 

commission of a theft. See Tex. Penal Code Ann. §§ 29.02 (robbery), 29.03 (aggravated 

robbery), 31.03 (theft). 

We next consider whether there is some evidence that appellant is not guilty of 

robbery, but guilty of only theft. See Hall, 225 S.W.3d at 536. A person commits the 

offense of theft if that person unlawfully appropriates property with intent to deprive the 

owner of the property. Tex. Penal Code Ann. § 31.03(a). Theft becomes a third-degree 

felony if the property is taken from the person of another. Tex. Penal Code Ann. § 

31.03(e)(4)(B). Theft from a person requires that the property was taken from the 

physical body of the person or from the person’s grasp or immediate possession. Earls v. 

State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986). A person commits robbery if, ―in the 

course of committing theft‖ and ―with intent to obtain or maintain control of the 

property,‖ that person ―intentionally or knowingly threatens or places another in fear of 

imminent bodily injury or death.‖ Tex. Penal Code Ann. § 29.02(a). 

The undisputed evidence in the record reflects that appellant grabbed his sister’s 

cell phone from her hand and immediately fled from the scene with it and without her 

permission to take it. See Tex. Penal Code Ann. § 31.03(e)(4)(B). Based on this

evidence that appellant took the phone from his sister’s hand, an instruction on theft from 

a person was warranted as a lesser-included offense, and the trial court properly included

this instruction. See Earls, 707 S.W.2d at 85. Given the same undisputed evidence, we 

find no merit in appellant’s claims that the evidence supported only an instruction for 

theft and not an instruction for theft from a person. See id. Although appellant claims 

 

1 The indictment also alleged that appellant used a firearm, a deadly weapon, in the commission 

of the offense. 
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that the charging instrument did not allege elements to support an instruction on theft 

from a person by alleging the means by which theft occurred, the indictment specifically 

charged appellant ―while in the course of committing theft,‖ thus, implicating the 

necessity of proof of those theft elements, by whatever means theft may be committed. 

See Earls, 707 S.W.2d at 84. We overrule appellant’s second issue in cause number 

1284103.

Did the trial court err in cumulating the sentences for both convictions, implicating 

double jeopardy?

In his first issue, appellant challenges the trial court’s order cumulating the 

sentences in both cause numbers, asserting that the trial court violated the constitutional 

prohibition of double jeopardy. Appellant acknowledges in his appellate brief that the 

trial court did not err in allowing the jury in the robbery case to hear evidence regarding 

the aggravated assault during the punishment phase, and vice versa. See Ex parte 

Broxton, 888 S.W.2d 23, 28 (Tex. Crim. App. 1994 (providing that a defendant is not 

punished for unadjudicated offenses presented in the punishment phase of trial and that 

double jeopardy does not bar subsequent prosecution of those offenses); McDuff v. State, 

939 S.W.2d 607, 621 (Tex. Crim. App. 1997) (providing that double jeopardy is not 

implicated when facts of instant case were admitted into evidence as extraneous offense 

in a previous trial to secure the death penalty). Appellant challenges only the trial court’s 

order cumulating the sentences as violating the constitutional protections against double 

jeopardy.

The law recognizes three kinds of double-jeopardy claims: (1) a second 

prosecution for the same offense after acquittal; (2) a second prosecution for the same 

offense after conviction; and (3) multiple punishments for the same offense. See Langs v. 

State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006). Appellant argues that each of the 

two, separate offenses had been factored into the punishment hearings on the respective, 

separate convictions, and the trial court’s decision to cumulate the sentences amounted to 

a third time that the offenses were considered and punished, effectively enlarging his 
11

sentence in violation of the Double Jeopardy Clause of the United States Constitution. A 

double-jeopardy claim of multiple punishments for the same offense arises in two 

contexts: (1) when the greater offense also meets the elements of a lesser-included 

offense such that the same conduct is punished twice; and (2) punishing the same 

criminal act twice under two distinct statutes when the legislature intended for the 

conduct to be punished only once. Id. 

When a defendant has been convicted in two or more cases, the trial court has 

discretion in subsequent cases to order that the sentences imposed run consecutively or 

concurrently. Tex. Code Crim. Proc. Ann. art. 42.08 (West 2011). Section 3.03 of the 

Texas Penal Code, entitled ―Sentences for Offenses Arising Out of Same Criminal

Episode,‖ limits this discretion and requires that, with exceptions not applicable in the

instant case, an accused’s sentences shall run concurrently when the accused is found 

guilty of more than one offense arising from the same criminal episode that is prosecuted 

in a single criminal action. Tex. Penal Code Ann. § 3.03(a) (West 2011). A ―criminal 

episode,‖ is defined as 

the commission of two or more offenses, regardless of whether the harm is 

directed toward or inflicted upon more than one person or item of property, 

under the following circumstances:

(1) the offenses are committed pursuant to the same transaction or 

pursuant to two or more transactions that are connected or constitute a 

common scheme or plan; or

(2) the offenses are the repeated commission of the same or similar 

offenses.

Tex. Penal Code Ann. § 3.01 (West 2011). A ―single criminal action‖ refers to a single 

trial or plea proceeding. See La Porte v. State, 840 S.W.2d 412, 414 (Tex. Crim. App. 

1992). 

For appellant to have been entitled to concurrent sentences, he must have 

established that he was prosecuted in a single criminal action. See Duran v. State, 844 

S.W.2d 745, 746 (Tex. Crim. App. 1992) (providing that the record did not support a 
12

conclusion that a single criminal action occurred for an appellant that was charged by two 

separate indictments with two separate offenses); see also Duran v. State, 844 S.W.2d 

745, 746 (Tex. Crim. App. 1992) (Baird, J., concurring) (providing that an accused must 

demonstrate that the offenses arose from the same criminal episode and that the accused 

was prosecuted in a single criminal action to be entitled to concurrent sentences). The 

record reflects that the charge for aggravated robbery arose from an incident occurring on 

November 3, 2010, while the charge for aggravated assault arose from an incident that 

occurred on November 7, 2010. The two charged offenses are not related and were 

prosecuted in separate criminal actions. Appellant has neither demonstrated nor argued

that the charged offenses were pursuant to the same transaction or connected to a 

common scheme or plan or the same or similar offenses. See Tex. Penal Code Ann. § 

3.01. 

Appellant argues that the conviction for aggravated assault and the conviction for 

robbery share many of the same elements. But aggravated assault and robbery are 

separate offenses that occurred in separate criminal episodes; each offense required 

elements that the other did not. See Langs, 183 S.W.3d at 687 (rejecting a ―same 

elements‖ analysis under Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 

76 L. Ed. 306 (1932), because each of the offenses required an element that the other did 

not); see also Tex. Penal Code Ann. § 29.02 (defining ―robbery‖ as when a person ―in the 

course of committing theft‖ and ―with intent to obtain or maintain control of the 

property,‖ ―intentionally or knowingly threatens or places another in fear of imminent 

bodily injury or death‖); Tex. Penal Code Ann. § 22.02(a) (West 2011) (defining 

―aggravated assault‖ as when a person uses or exhibits a deadly weapon during 

commission of the offense of assault, as defined by section 22.01(a)(1) (West 2011), in 

which a person intentionally, knowingly, or recklessly causes bodily injury to another). 

When, as in this case, the evidence establishes the commission of ―distinct and separate 

offenses,‖ then there is no violation of the double-jeopardy prohibition of multiple 

punishments. See Langs, 183 S.W.3d at 685; Lancaster v. State, 324 S.W.3d 217, 222 
13

(Tex. App.—Waco 2010, pet. ref’d). The Double Jeopardy Clause serves as a barrier to 

legislative attempts to authorize retrial after an acquittal or conviction, but it does not 

serve to intrude on the legislature’s prerogatives in fashioning the statutory framework 

that governs a trial court’s sentencing decision. Ex Parte Herron, 790 S.W.2d 623, 625 

(Tex. Crim. App. 1990); Alvarado v. State, 816 S.W.2d 792, 799 (Tex. App.—Corpus 

Christi 1991, affirmed as modified by, 840 S.W.2d 442 (Tex. Crim. App. 1992). We 

conclude the trial court could impose consecutive sentences on appellant for the 

aggravated assault and the robbery, each arising out of separate criminal episodes and 

tried in separate criminal actions, without violating the double-jeopardy prohibition

against multiple punishments. See Langs, 183 S.W.3d at 688; Lancaster, 324 S.W.3d at 

223; Alvarado, 816 S.W.2d at 798–800; see also Tex. Penal Code Ann. § 3.01; LaPorte, 

840 S.W.2d at 414. Accordingly, we overrule appellant’s first issue in cause number 

1284540.

Did appellant preserve error as to his complaint that the trial court erroneously 

allowed testimony with “religious tones”?

In his second issue from the appeal of cause number 1284540, appellant asserts 

that his aunt’s testimony contained ―pervasive religious tones‖ that operated to 

improperly bolster her credibility and prejudice appellant’s due process rights. Appellant 

characterizes the aunt’s testimony as involving frequent statements reflecting the 

strength and prominence of her religious beliefs, invocations to a higher power, claims 

that a higher power assisted and communicated with her, and claims that a higher power 

willed punishment on appellant.

For appellant to have preserved this complaint for appellate review, it was 

incumbent upon him to have made a timely request, objection, or motion with sufficient 

specificity to apprise the trial court of the complaint. See Tex. R. App. P. 33.1(a); 

Saldano v. State, 70 S.W.3d 873, 886–87 (Tex. Crim. App. 2002). With few exceptions, 

that are not applicable in the instant case, even constitutional complaints may be waived 
14

by failure to raise a timely objection in the trial court. See Anderson v. State, 301 S.W.3d 

276, 281 (Tex. Crim. App. 2009) (providing that a defendant failed to assert due-process 

objection in trial court). Not once in the entire trial did appellant object to any religious 

references or move to strike any testimony or assert the complaints about ―religious 

tones‖ that he now brings on appeal. Appellant has therefore failed to preserve error on 

this issue. See Tex. R. App. P. 33.1(a). We overrule appellant’s second issue in cause 

number 1284540.

Did the trial court err in admitting into evidence a photograph of appellant in 

shackles?

In appellant’s third issue in his appeal from cause number 1284540, appellant 

asserts the trial court erred in admitting into evidence a photograph depicting appellant’s

handcuffed hand and arm because the photograph, State’s Exhibit 47, showed that 

appellant was in custody. The State first tendered all of the proposed photographic 

evidence to appellant’s defense counsel, and then the parties discussed at the bench 

appellant’s objections to various photos. Appellant objected to three photographs, and

the State withdrew two of them, leaving only Exhibit 47. As relevant to his appeal, the

trial court overruled appellant’s objections to this exhibit, noting that the photograph 

showed a wound to appellant’s arm and that the State intended to call a law enforcement 

officer to testify about appellant being in custody at the time the photograph was taken.

We review a trial court’s admission of photographs into evidence under an abuseof-discretion standard. See Penry v. State, 903 S.W.2d 715, 751 (Tex. Crim. App. 1995). 

Absent an exceptional circumstance or a manifest need for physical restraint, requiring an 

accused to wear handcuffs before the jury at trial infringes on the accused’s constitutional 

presumption of innocence. Lucas v. State, 791 S.W.2d 35, 38 (Tex. Crim. App. 1989). 

Although appellant was not handcuffed in front of the jury, appellant asserts that the 

photo (Exhibit 47) eroded the presumption of his innocence and deprived him of his right 

to a fair trial because it showed him in custody. The scene of a crime may be properly 
15

shown to a jury as evidence, but the State also must observe the rule that the defendant be 

brought to the jury ―unfettered.‖ See Lucas, 791 S.W.2d at 38.

As reflected in the record, when the State questioned a responding law 

enforcement officer about the scene and Exhibit 47, the officer already had testified that 

appellant was taken into custody immediately upon the officer’s arrival at the apartment 

when they discovered appellant, hammers in hand, standing over a bleeding woman. 

Officers took photographs of both appellant and the scene at that time. See Avila v. State, 

15 S.W.3d 568, 574–75 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (providing that 

photograph of an accused in handcuffs was admissible because record reflected that the 

accused was in custody and subject to physical restraint when the photograph was taken). 

Because appellant was in custody, he was subject to physical restraints. See id. Being 

subject to physical restraint is not the same as appearing before the jury in restraints. Id. 

The jury did not see appellant wearing handcuffs during trial, and, by admitting the 

photograph into evidence, the trial court did not violate the rule that an accused appear 

before the jury unfettered. See Lucas, 791 S.W.2d at 38; Avila, 15 S.W.3d at 575.

Additionally, appellant did not object to the officer’s testimony about the blood 

shown on appellant’s knuckles, hand, and arm. Appellant’s trial counsel briefly crossexamined the officer specifically about the abrasion on appellant’s arm as shown in 

Exhibit 47. When, as in this case, a verbal description of the scene depicted in the 

photograph is admissible, a photograph depicting the same content is also admissible. 

See Lucas, 791 S.W.2d at 55. The officer’s testimony on both direct- and crossexamination focused on appellant’s abrasions and not the handcuffs. See id. at 56. 

Likewise, such a photograph is admissible to reflect appellant’s appearance on the day of 

the offense and does not rise to a level of a violation of appellant’s constitutional right to 

be presumed innocent. See Davis v. State, 786 S.W.2d 77, 78 (Tex. App.—Beaumont 

1990, pet. ref’d) (providing that mug shot of an accused depicting him in custody with a 

―Jefferson County Sherriff’s Department‖ sign and an inmate number was admissible to 
16

accurately depict the accused’s appearance at the time of the arrest a few days after the 

charged offense occurred). The trial court did not err in admitting the photograph over 

appellant’s objection. See Lucas, 791 S.W.2d at 38; Avila, 15 S.W.3d at 575. 

Accordingly, we overrule appellant’s third issue in cause number 1284540.

Having overruled each of appellant’s issues in cause numbers 1284103 and 

1284540, we affirm the trial court’s judgment in each case.

/s/ Kem Thompson Frost

Justice

Panel consists of Justices Frost, McCally, and Mirabal.

*

Publish — TEX. R. APP. P. 47.2(b).

 

*

Senior Justice Margaret Garner Mirabal sitting by assignment.