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 C ourt Cause No s . 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 assert s he was entitled to a jury instruction on2

a lesser

- included offense of theft . In appealing the conviction for aggravated assault, appellant assert s the trial court erred in cumulating his sentence s for both the aggravated assault and robbery convic tions, resulting in double jeopardy. Appellant also assert s error in the admission of certain evidence. We affirm.

F ACTUAL AND P ROCEDURAL B ACKGROUND Appellant was charged by two, separate indictments with the felony offenses of aggravated robbery and agg ravated 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 tr ial, 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 testif ied 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 de nied 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 ce ll phone because he was arrested fo u r 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

.3

At the punishment phase of trial , all of the evidence from the guilt

- innocence phase was entered into evidence. A dditionally, a n officer testified about being dispatched

to a home on November 7, 2010, in response to calls a bout an assault in progress. Through a window, the officer observed appellant , holding two hammers , and a then

unidentified bleeding woman, reaching through the broken window with her hand, aski ng for help. Officers arrested appellant . Appellant had blo od on his clothing and hands. Investigating officers recovered t hree hammers and a bottle of lighter flui d 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

scen e 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 bath tub 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 recei ved 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 hear d him threaten to kill military members, white people, and police officers. Appellant was sentenced to twenty years’ confinement for the robbery in cause number 1284103.4 Aggravated Assault (Cause Number 1284 540) Appellant pleaded ―not guilty‖ to th e char ge 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 wee k
before the incident . On the morning of Nove mber 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 coul d no t stay with her past one week

. According to the aunt, after this conversation , a ppellant 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 a ppellant 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 order ed 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 appellan t 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 hand s and blood on his cloth ing. 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
wh ich appellant had been convicted of robbery in cause number 1284103

. Appellant objected to the testimony a s extraneous

- offense evidence and a violation of double jeopardy constitutional protections. The trial cour t overruled the objections, stating that because the jury did not convict appellant of aggravated robbery, the sister could not5

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 whic h 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.
A NALYSIS Appellant has filed separate appellate briefs relating to th e 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 inst ruction on the lesser

included 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 cumulativel y in violation of the
constitutional proh ibition 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 shac kles.
Is the evidence sufficient to support a conviction of robbery?

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

assert s 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 evid ence or believe that appellant’s evidence o utweighs the State’s evidence.
Wicker v. State , 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be6

overturned unless it is irrational or unsupported by pr oof beyond a reasonable doubt.
Matson v. State , 819 S.W.2d 83 9, 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 26 7, 271 (Tex. Crim. App. 1999). The trier of fact may choose to believe or disbelieve any portio n of the witnesses’ testimony. Sharp v. State , 707 S.W.2d 61 1, 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 pe rson 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 knowingl y 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. § 3 1.03(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 assert s that there is no evidence that he intended to deprive his sister of the phone because the alt ercation 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, ap pellant relies on the case of Sorrel l s v . State , 343 S.W.3d 152, 158 (Tex. Crim. App. 2011). Generally, as noted in Sorrel l s , a theft occurring imm ediately after an7

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 Sorrel l s to the case at hand, we note that the nexus element requ ires 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. § 29.0 1(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 committi ng theft

. See Tex. Penal Code Ann. § 29.01(1); Sorrells , 343 S.W.3d at 157.
Appellant assert s there is no evidence of what he planned to do with the cell phone beyond his own testimony that he intended to return it. C riminal 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, th e jury was entitled to draw inference s 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 return ing 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 Dis t.] 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 app ellant’s conviction for robbery. See id. We overrule appellant’s first issue related to cause number 1284103.8

Was appellant entitled to a an instruction on theft as a lesser

- included offense?

In a ppellant’s second issue, as relevant to his appeal from c ause number 1284103, appellant assert s 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 requir ed 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 di ffers 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 lesser

included 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 ac cused 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
deter m ining whether a party is entitled to a lesser

- o ffense instruction).
As reflected in the indictment, appellant was charged with unlawfull y, while in the course of committing theft of property owned by the sister, and with intent to obtain and9

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 l esser

- included offense of both robbery and aggravated robbery

. Bignall v.
State , 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). T he 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 gui l ty 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 . T ex. 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 pe rson 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 pers on ―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 imme diately 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 le sser

- included offense , and the trial court properly includ ed
this instruction

. See Earls , 707 S.W.2d at 85. Given the same undisput ed evidence, we find no merit in appellant’s claims that the evidence supported only an instruction for
theft and not an in st ruction 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.10

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.

Di d 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

sentence s in both cause numbers , asserting that the trial court violated th e 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 vic e 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). Appella nt 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 acquitta l; (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 factor ed 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 his11

sentence in vi olation of th e Double J eopardy C lause 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 l egislature intended for the conduct to be punished only once. Id.
When a defendant has been convicted in two or more cases, the trial court ha s 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 th e 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 i tem 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 commi ssion 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 be en entit led to concurrent sentences, he must have
establish ed 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 a12

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 ar ose 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, wh ile 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 offe nses 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.

A ppellant argues that the conviction for aggravated assault and t he conviction for robbery share many o f 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 Blo ckburger 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 commit ting 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 d oubl e

- j eopardy prohibition o f multiple punishments. See Langs , 183 S.W.3d at 685; Lancaster v. State , 324 S.W.3d 217, 22213

(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 gover ns 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.2 d 442 (Tex. Crim. App. 1992). We
conclude the tr ial court could impose consecutive sentences on appellant for the aggravated assault and the robbe ry , 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, w e overrule appellant’s first issue in cause number
1284540.

Did appe llant 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 assert s that his aunt’s testimony contained ―pervasive religious tone s‖ that operated to impro perly 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, invocation s 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 th e instan t case, even constitutional complaints may be waived14

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 o n 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

assert s 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 pr oposed photographic
evidence to appellant’s defense counsel , and then the parties discussed at the bench appellant’s objec tions to various photos. A ppellant objected to three photographs, and
the State withdrew two o f them, leaving only Exhibit 47 . A s re levant to his appeal, the
trial court overruled appellant’s objection s to this exhibit , noting that the photograph showed a wound to appellant’s arm and tha t the State intended to call a law enforcement
officer to testify about appellant being in custody a t the time the photograph was taken. We review a trial court’s admission of photographs into evidence under an abuse

of

- discretion standard. See Penry v. State , 903 S.W.2d 715, 751 (Tex. Crim. App. 1995). Absent an exceptional circumstance or a manife st 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.2 d 35, 38 (Tex. Crim. App. 1989)

. Although appellant was not handcuff ed 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 properly15

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
enforceme nt 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.
O fficers took photographs of both appellant and th e 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 phy sical 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 a ppellant 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.

A dditionally, a ppell ant did not object to the officer’s testimony about the blood shown on appe llant’s knuckles, hand, and arm

. Appellant’s trial counsel briefly cross

examined 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 cross

examination focused on ap pellant’s abrasions and not the handcuffs. See id. at 56. Likewise, s uch 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 to16

accurately d epict 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. Accordingl y, w e overrule appellant’s third issue in cause number 1284540. Having overruled each of appellant’s issues in cause number s 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

— T EX

. R. A PP

. P. 47.2( b).

* Senior Justice Margaret Garner Mirabal sitting by assignment.