### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-16-00573- CR

Kat hryn L. Pre ston, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F LLANO COUNTY , 424 TH JUDICI AL DISTRICT NO. CR7184 , H ONO RAB LE EVAN C. STUB B S, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N A j ury convicted Kathry

n L

. Preston of m urder , assessing p u n ishment at forty -five y ear s’ imprisonment. See Tex. Penal Code § 19.02(b)( 1). The district court rende red its judgme nt of conviction consistent with the jury ’s verdic t. On appea l, Preston complains that the district court: (1) did not g ive the jury an in s t ru ct i o n o n t h e use of deadly forc e in self-de fense to preve nt the “imminent commission” of kidnapping or murder; (2) did not g ive the jury an instruct i o n o n t h e presumption of rea so n ab l en es s for a person’ s belief that use of deadly forc e is immediately

nece ssary ; (3) included an instruct io n in th e c h a rg e stating that self-de fense require s more than verba l provocation; (4) denied a n additional instruction as to the State’s burde n to disprove self-defe nse; (5) admitted blood-spatter testimony from a Texas Rang er that she contends was spec ulative; and (6) admitted two autopsy photogr aphs that she contends wer e cumulative and more prejudicia l than probative. We will aff

irm the judg ment of convic tion.BACK GR OUND

P rest on’s statem ents to 911 and f irst re spon ders Preston’s conviction for the murder of J ose Mario Her nandez arose from a series of

1
events that occur

red the afte rnoon befor e she called L lano County 911 to repor t a fire at her house. I n the 911 call play ed for the jury , Preston states that she thinks she will need some help, that she has a fire i n her house, and that “somebody better hurry up, I kinda g ot a controlled burn going here .” The operator state s, “We’ve g ot ‘em going ,” and asked if ever y one was out of t he house. Preston said she was inside, and the operator told Preston that she neede d to g et outside. The operator asked if it was an elec trical fire or a g rea se fire, which Preston denied. When the operator asked what kind of fire it was, P re s t o n s t at ed twice, “I don’t know how to answe r that.” The opera tor could not understand Pre ston. Preston repea ted, “I said, Idon’t know how to answe r that.” The operator then asked Preston if she felt safe and if something else was g oing on. Preston stated, “Well, y esterda y my husband started beating on me.” Preston told the operator that he was there , that he knew she was calling , and that he was inside the house. Preston confirme d that she felt safe , stating, “Oh, y eah, I ’m fine.” When the dispatcher asked if Preston could g o outside, Preston responde d that she could and that she had put the fire out herse lf with a fir e ex t inguishe r. Given that response , the operator aske d i f P re s t on’s husband had started the fire, which Preston denied. The opera

tor asked Preston if she neede d EMS or was injured, and Preston said she thought

Preston also ref

err ed to Her

nandez as “Joe” and claime d that he was her common-law 1 husband. Evidence at trial showed that Preston was twe nty -three y ear s older than Her nandez, and she testified that she beca me romantica lly interested in him as a band booster pare nt at L lano Hig h School, when his sister and her d au gh t er wer e classmates. Her nandez moved in with Preston approximately

two-and- half y ear s befor e his dea th. 2she might have a fra cture d bone. The operator told Preston that if she neede d help, she just had to 2 talk to the operator and tell her what she ne eded. Preston told the opera

tor, “Well, he fell and hit his head on a rock.” T h e o p erator asked, “Just now? ” Preston answe red, “No, y esterda y .” Preston ag ain stated that her husband was still in the house and that he had phy sically abused her the day befor e. When a sked if she was just now able to c all, Preston said, “Well, Idon’t know, I ’ve just bee n—I ’ve g ot kids. . . . And I think I just—I didn’t know what to do and so I just kinda forg ot about it.” The operator asked if the kids

wer e there or if they had gone to school, and P reston confi rm ed t h at they wer e at school. Shortly afte rwa rd, an of fice r ar rived, a nd the 911 ca ll ended. L lano County para

medic J ames Woods testified he was dispatched to assist the fire depar tment for what they thought was a kitchen fire. After arr iving at Preston’s residenc e and g oing inside the hous e, W oods saw a man whose body was partially burned. Woods confirme d t h at the

man had no pulse and was dece ased. Woods also chec ked on Preston’s phy sical condition. He noted bruises on her arms that wer e not ne w, but in a healing state. He attempted to evaluate her further , but Preston told him “she was fine

. . . [s] he said she didn’t need us.” Whil e he was examining the bruises, Preston aske d him to si t and talk with her.

D u r in g th a t c o nv e r s a ti o n, Preston told Woods that “she killed J oe.” Specifica lly , “she said that she had hit him in the head with a rock” the day befor e, whe n the kids wer e not y et home from school. Woods testified t h at t h er e was no question he hear d her corr ectly and that she did
not say that J oe fell and hit his head on a rock. Preston told Woods that she knew J oe was dead. She

Preston did not specify

wher e on her

body she had the repor

ted fra cture

. 2 3also told Woods that she had stacke d some wood in the backy ard and t h at she was g oing to try

to cre mate J oe there

. Preston further told W o o d s that she stay ed in the room with the dead body overnig ht.

Woods testified that Preston thought it would be easie r to move the body outside, but she was unable t o do so beca use he was too heavy for her. Preston then told Woods that she had filled a Windex bottle with g as and had spr ay ed Joe with it , try ing to soa k him in the ga s, and that she tried to do the cre mation in the house. Preston asked Woods whether he had ever spray ed g asoline out of a Windex bottle, and she talked about the way that the colors ref lected and “how cool it looked.” Woods testified that Preston said she called 911 beca use the house beg an burning when she l it J oe on fire , and she did not wa nt to lose the house. Preston also told Woods t hat s he asked J oe to leave but he was unwilling to do so, t h at h e wa s ab usive to her, and that she was afr aid for both herse lf and her children. Woods testified that Preston followed that statement with a nervous laug h and said, “ Well, I g uess he’ s g one now.”

L lano County Sheriff’ s Deputy Kirk J ower s also responded to the 911 call. He
t es t i fied that he and another deputy arr ived at about the same time at Preston’s residenc e in t h e unincorporated township of King sland, locate d in the easte rn par t of L lano County , in response to the call about a fire and pos sible disturbance

. Deputy J ower s met Preston in th e b ac k y ard, where she was sitti ng on a sm all rock wall. Whe n h e as k ed h er what the problem was, she told him she “wa s having a bad wee k, that her husband had been abusive to her.” Deputy J ower s asked Preston wher e her husband was, and Preston said he was on the bedroom floor. Be fore Deputy J ower s enter ed the house , Preston told him t hat her husband had “ hit his head on a roc k.”

4Both deputies enter ed the house and encoun t ere d heavy smoke, making it hard to

breathe and obscuring their view so much that they had to use flashlig hts to make their way from the hallway to the bedroom. The deputies enter ed the bedroom and saw the body of a male on the floor, smoldering

. When Deputy J ower s shined his light on the man, he noticed a wound on the rig ht side of the man’ s fore head a

nd was “ pretty

sure he was dece ased.” Deputy J ower s also noticed a la

rg e stone, like a prec ast ceme nt la ndscaping stone or brick, along side the left leg of the dece ased. The deputies wer e unable to stay in the house beca us e i t wa s d i ff

i cult to breathe and their ey es wer e stinging . The deputies walked outside the house, and be cause Preston was c onsidered a homicide suspect, she w as handcuffe d and read her Miranda rig hts. Deputy J ower s saw a ha ndwritten note

or letter near Preston and place d it into an evidenc e bag

. Preston told Deputy J ower s that it was “a log of ever

y thing that had happene d to he r that we ek.” D eputy J ower s testified that two volunteer firef ighte rs arr ived and enter ed the house wher e they found a smoldering are a on the body that had
to b e ca ref

ully exti ng uished with a small amount of water to preve nt contamination of the crime

scene . Ex haust fans w ere used to clea r the smoke f

rom the house. Whil e at the scene , Deputy J ower s saw Woods examining Preston’s ar m an d overhe ard her telling Woods that she “tried to drag the body outside to put it in a pile of sticks a nd make a funer al [py

re] and burn him outside.” Deputy J ower s also overhe ard Pre ston tell the other deputy that the dece ased had been dead since 4:00 p.m. the day befor e. Deputy J ower s transporte d Preston to the L lano County J ail, wher e other office rs interviewe d her. Deputy J ower s testified that the ca se wa s turned over

to the Texas Rang ers, who c onducted a homicide investig ation.

5Texas Rangers’ investigat ion of crim e sce ne Texas Rang ers J ason Bo bo and P atrick Pena responde d to Preston’s residence, got

some preliminary information, and obtained a sear ch war rant for the residenc e and curtilag e. As part of their investigation, Rang ers Bobo and Pena took photogr aphs and collecte d evidenc e fr om the house. Fr om inside a washing machine, Rang er Bobo retrie ved a pillow still inside its pillow case ,
a decor ative pillow, and sever al items of clothing that wer e not wet. Rang er Bobo estimated that he found these items a t about 2:00 p.m., approxi mately 22 hours af

ter He rnande z was killed. Rang er Bobo testified that he had rec eived specia liz ed tr aining in blood-spatter analy sis. Ba sed on his training and experience in blood spatter, Ran ger Bo b o s t at ed that a foam
mattress topper found in one of the outbuildings had been remove d from the mattress in the bedroom and slid throug h a deposit of blood as it was moved off the bed, causing a smear throug h the blood

on a bedroom window. After conducting his fore nsic investigation and examining all of the blood spatter evidence at t he crime scene , Rang er Bobo concluded that Her nandez was ly ing fac e-up on the mattress in the bedroom when he was struck in the head with t h e ro ck

. E x ami nation of Her nandez’s hands a

nd fore arms showe d no sign of defe nsive wounds. Rang er P en a t estified that the items he found during his investigation of Preston’s house included a spray bottle containing a y ellowish liquid with the odor of g asoline, sever al cut-up piece s of duct tape, and cellular telephones belong ing to Preston an d h er 16-y ear -old son, Griff in Preston. On the phones, Rang er Pena saw sever al text messag es from Preston to Griff in, asking him 3
to call her, stating that she neede d for him to call her as soon as he could, and stating that she neede d

For clar ity , we r efe r to Griff

in Preston by

his first name or a s Preston’s son. 3 6to know what time he would be home. The tex ts span n ed from 5:44 p.m. to 8:06 p.m. on the day

Her nandez was killed. Another text messag e Rang er Pena saw was sent at 11:33 p.m. that day from Griff in to his older sister—who did not live at Preston’s house—stating , “I f I don’t text y ou or call y ou tomorrow or the next day , something is wrong .” On Preston’s phone, Rang er Pena found four photogr aphs of her bruises, taken betwee n 9:04 a.m. and 9:07 a.m. on the day afte r Her nandez was killed, and shortly

befor e she c alled 911 to re port a fir e at 9:22 a.m. As part of his investigation, Rang er Pena obtained a war rant to take bucca l cells from Preston’s chee k. He testified that Preston was “ver y uncooper ative and initially ref used” to comply , despite being informed of the war rant. Eventually , Rang er Pena did obtain a bucca l cell swab from Preston and subm itted it to the Tex as Department of Publ ic Safe ty crime la b for a naly sis. Range r Pena testified that the bedroom wher e Her nandez was killed showed no signs of an alterc ation. He further testified that his examination of the crime sce ne led him to believe that Herna ndez was hit i n t he head with a rock while ly ing down aslee p in bed, afte r which Preston moved Her nandez’s body off the be d and onto the floor.

P rest on’s statem ents to her son

Preston’s 16-y ear -old son Griff in testified that the day Her nandez was killed was also the first day of the school y ear . Griff in had band prac tice afte r school and did not arr ive home until about 8:00 p.m. that evening

. Griff in saw his mother’s text messag es, which wer e insistent enoug h that he soug ht her out whe n he ar rived home. Griff in went to his mother’s bedroom, and she spoke to him while partially conce aled by the bedroom door. She was not cry ing. She beg an talking about Her nandez, and she then told

7Griff

in, “I killed J oe.” Griff

in testified that he moved past her into the bedroom to see for himself. Although there was very littl e l i gh t i n t h e ro om, Griff in saw the lower half of Her nandez’s body , ly ing on the floor and along his mother’s side of t he bed. At that time, He rn an d ez was wea ring a long- sleeve d shirt, long blue jeans, an d wo rk b oots, which Griff in acknow ledg ed wer e not the clothes He rnande z was wea ring in the crime- scene photogr aphs. Griff in left t he bedroom afte r he saw Hernande z’s body , and his m o t h er continued
to talk to him. Griff

in testified that his mother t old him that she hi t Her nandez i n the head with a rock while he was aslee p. Griff in further testified that his mother said Her nandez was conscious at

some point afte r being struck with the rock. She said that Her nandez told her something like, “just finish me off,” and she smothered him with a pillow. Griff in said that his mother used the comforte r to pull Her

nandez off of the bed and onto the floor. I n his state ment to police , Griff in sa id that his mother was “fr eaking out” and kept saying something ab o u t “go i ng to jail or the death penalty .”

Griff in testified that his mother asked him to help her move Her nandez’s body

. He ref used. He was conce rned that she wanted to move the body to cover up a murder. Griff in testified that h e b ec am e fe ar ful for himself and his two y oung er brothers beca use he “re alized just how dang erous she was.” Griff in went to the living room wher e his y oung er brothers were watchinga movie and stay ed there with them all night. The next morning , as he was leaving to catc h the school bus, Griff in told his mother that she neede d to call the police or he would. I n his statement to police, Griff in said that his mother asked him not to say any thing to any

body

. 4

Preston testified that she had been a court repor ter with Bur

net County for 18 y ear s and had 4 rec orded testimony in criminal district court, but she denied being familiar with how criminal investigations work. 8Testing condu cte d by DPS forensic scientists Severa l DPS fore nsic scientists testified about th e te s ti n g c o n d u c te d o n e v id ence from the crime scene , including Hilary Kee nan, a fore nsic scientist in the latent prints section, and Br ent Way ne Watson, a fore nsic scientist in the DNA section. Kee nan testified that she proce ssed piece s of duct tape and elec trical tape found at the crime scene , found l at en t p rints acc eptable for compar ison, compar ed the latent prints to Preston’s known prints, and deter mined that Preston was the source of the latent prints from the evidenc e examined. Watson testified that he rec eived multipl e items of evidenc e for testing and compar ison with a known sample of Her nandez’s blood,

a bucca l swab from Preston’s chee k, and unknown DNA specimens collecte d from the crime scene .

Watson proce ss ed t h e s wab of a possible blood stain taken from the rock. After making compar isons of t hat DNA profile to the DNA profiles of Preston and He rn andez, Watson deter mined that Her

nandez was the likely source of the DNA found on the rock and that Preston was excluded as a contributor to the DNA profile found on the rock. Watson also proce ssed t he knife sharpe n er found at the crime scene . He found a DNA sample on the wooden handle of the knife sharpe ner which showed that Her nandez was the likely contr i b utor of that DNA sample and that Preston was excluded as a contributor of that DNA sample. W atson found a mix ture of two individuals’ DNA on the metal portion of the knife sharpe ner, but he wa s u nable to deter mine whether Preston or He rnande z were c ontributors to that mix ture. Additionally , Watson processed severa l items from the bedr oom, including a swab from the window casing , a swab from the window g lass, a swab from the wall behind the mattress,

a swab from an elec trical tape roll, and a cutting from the appar ent blood stain on the foam mattress

9topper. All of these swabs showed that the DNA sample found was from a single source , excluding

Preston as a contributor and with Her nandez as the likely contributor. Watson stat ed t h at t he proce ssing of a swab from the duct tape showed that the DNA sample found was from a mix ture of

source s, excluding Preston but with Herna ndez and an unknown person as the l ikely contributors. Watson testified that there wa s no prese nce of blood on the test of a f

an. Watson also testified about his DNA testing on the pillow case and items of clothing. He stated that he was unable to loc ate any blood on the pillow c ase found in the washing machine. He proce ssed a pair of shorts and deter mined that the DNA sam p l e fo u n d was from a mix ture of three source s, with Preston and Her nandez both likely contributors. Another item Watson proce ssed

was a tank t op with an appare nt blood stain, which showed that the DNA sample found was from a sing le source , excluding Preston as a contributor but with Her

nandez as the likely

contributor.

Medical exam iner’s fin din gs

Trav is County Deputy Chief Medica l Ex aminer Dr. Satish Chundru conducte d Her nandez’s autopsy , two day s afte r Her nandez’s death. Dr. Chundru’s exam i n at i on of the body externally showed a signific ant wo u n d on the left ey ebrow are a but no defe nsive wounds on the body

. Dr. Chundru’s examination of the internal org ans showed pulmonary edema , or fluid, in the lungs, but all other org ans appea red normal. Dr. Chundru noted that the hea d wound involved a

sever e inj ury to the s calp and an i n dentation of the s kull requiring a severe blow, but he found no bruising of the brain. He testified that such an injury to the skull could rende r a person unconscious. Dr. Chundru also testified that his examination of the trac hea showed no prese nce of soot, meaning that Her nandez was not a live when his body was burne d.
10D r . Ch undru stated that his orig inal deter mination of the cause of de a th w a s h o mi c id a l violence, including blunt forc e head injury

. Howeve r, afte r rec eiving additional information about Her nandez’s possible asphy

x iation with a pillow, Dr. Chundru opined that the cause of Her nandez’s death, based on a rea sonable deg ree of medical cer tainty , was blunt forc e trauma and asphy x iation. Dr. Chundru testified tha t the information about possible asphy x ia, or lac k of oxy g en to the bra in, made “per fec t sense” beca use the blood loss from the head wound would have been insufficient itself
to cause death. He further testified t hat although asphy x ia can be caused in many way s, placing a pillow over someone’s fac e leave s no evidenc e on the autopsy

. He stated that asphy x ia would also explain the presenc e of f

luid in the lungs without any brain injury , as he ha d observe d here

.
Hernandez’s m edical rec ords

During her case in chief

, Preston offe red Her

nandez’s medical rec ords into evidenc e. The rec ords showed that more than seven months befor e his death, Her nan d ez saw Dr. J ohn Fr eder ick for g ener alized anxiety and ang er disorders. Dr. Fr eder ick’s notes of Her nandez’s examination state th at He rnandez had a pleasa nt demea nor and that he exhibi ted a normal mood/affe ct. Dr. Fr eder ick’s n o t es also conclude that Her nandez was calm and not a dang er to him s el f o r to others, and that Preston ag ree d. I t was unclear whether data in other portions of t he exhibi t came f

rom Her nandez himself or someone with him at the time. At the conclusi o n o f t h e t rial, the jury convicted Preston of murder, and the court rende red judgme nt on that verdic t. Preston filed a motion for new trial that was denied by operation of law. This a

ppeal f ollowed.

11DISCUSSIO N

Issue 1: No egr egious harm from lack of instruction on u se of deadl y force in self-def ense I n her first issue, Prest o n complains that the district court did not g ive the jury an instruction on the use of deadly force i n s elf-de fense to preve nt another person’ s “imminent commission” of kidnapping or murder. See Tex. Penal Code § 9.32(a) (2)( B) (justify ing person’ s use of deadly forc e ag ainst another to preve nt other person’ s imminent commission of cer tain offe nses, including ag g ravated kidnapping or murder)

. Article 36.14 of the Texas Code of Criminal Procedur e direc ts t he trial judge to “deliver to the jury

. . . a written char g e distinctly setting forth the law applicable to the case .” Mende z v. State , 545 S.W .3d 548, 551–52 (Tex. Crim. App. 2018); Arteaga

v. State , 521 S.W .3d 329, 334 (Tex. Crim. App. 2017); see Tex. Code Crim. Proc

. art. 36.14. The char ge s h o u l d include “all of the law applicable to the criminal offe nse that is set out in the indictment or information,” and “g ener al admonishments, including

. . . the presum p t i o n of innocenc e, proof bey ond a rea sonable doubt, unanimity of the verdic t, and so forth,” which are “law appli ca b l e t o the case .” Mende z , 545 S.W .3d at 552. Howeve r, not ever y defe nse-be nefitting instruction is “law applicable to the case ,” such that its exclusion from the char g e is nece ssari l y

err oneous. Id

. W e revie w claims of jury char g e err or under the test set forth in Almanza v. S t a t e , 686 S.W .2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’ g ), deter mining first whether err or exis ts, then evalua

ting the harm cause d by any err or. Arteaga , 521 S.W .3d at 333; Ngo v. State , 175 S.W .3d 738, 743 (Tex. Crim. App. 2005). A defe ndant’s failure to object to jury -cha rg e err or aff

ects which of the dual standards of revie w under Almanza is to apply

. Mende z , 545 S.W .3d at 552. When—as

12here —the defe ndant fails to object, reve rsal is war rante d only upon a showing of “eg reg ious harm” such that the defe ndant was deprive d of “a fair and impartial trial.” Id

. Eg reg ious ha rm is a “hig h and difficult standard” to meet, and it “must be borne out by the trial rec ord.” Ree ves v. State , 420 S.W .3d 812, 816 (Tex. Crim. App. 2013). We will not reve rse a conviction without a showing of actua l, not theore tical, har m. Villarreal v

. State , 453 S.W .3d 429, 431 (Tex. Crim. App. 2015). I n her first issue, Preston complains that the trial court did not g ive the jury an instruction, sua spont e, under subsection (B) of 9.32(a) (2) of the P enal Code justify ing a person’s

use of deadly forc e to preve nt another ’s imminent commission of ag g rava ted kidnapping or murder: A per son is just ified in using de adly forc e ag ainst another: (1) i f t h e ac t or would be justified in using forc e ag ainst the other under Section 9.31; and (2) when a

nd to the deg ree the ac tor rea sonably believes the deadly forc e is immediately

nece ssary : (A) to protec t the actor ag ains t the other’s use or attempted use of unlawful de adly

forc e; or (B ) to preve nt t h e other’s imminent commission of ag g ravated kidnappi ng , murder, sexual assault, ag g rava ted sexual assault, robber y , or ag g ravated robbe ry .
See Tex. Penal Cod e § 9 .32(a)

. Both of these alleg ed offe nses, based on the evidenc e at trial, require d evidenc e of Her

nandez’s use or attempted use of deadly forc e. See id

. §§ 19.02 (def ining offe nse of murder) , 20.01(2)( B) (def ining “abduc t” in ag g ravated kidnapping statute as restra int of

13person with intent to preve nt person’ s libera t i o n b y “u sing or threa tening to use deadly forc e” ), 5 20.04 (def

ining of fense of ag g ravated kidnapping ). The char g e g iven to the jury included an instruction stating that a person’ s use of deadly forc e is justified to pre v en t t he use or attempted use of unlawful deadly forc e by another

. 6 That instruction is a corr ect statement of the law. See id

. § 9.32(a) (2)( A); see also Comm. on Pattern J ury Charg es, State Ba

r of Tex., Texas Criminal Pattern Jury Charges: Criminal Defense s CPJ C 32.2 & cmt. (2015) (I nstruction—Self-De fense I nvolving De adly For ce to Protec t Ag ainst Dea dly For ce By Another; Relevant Statutes). Fur ther, when an instruction that the trial court has not g iven
to the jury is adequately cover ed by an instruction that was g iven, no harm is shown. See Druery v. State , 225 S.W .3d 491, 505 (Tex. Crim. App. 2007) (conc luding that “whe n a refused char g e is adequately cover ed by the char g e g iven, no harm is shown”). We conclude that the instruction g iven
to the jury was a corr ect statement of the law and that the ins t ruction not g iven to the jury was adequately cover ed by the instruction that was g iven; thus, no err or or harm is shown. Preston’s first issue is overrule d. Ag g ravated kidnapping is also define d as an abduction involving restra int of a person with 5 intent to preve nt lib er at i on by hiding the person, but there was no evidenc e that Her nandez hid Preston or isolated her from an available person’ s help. See Tex. Penal Code §§ 20.01(2)( A), 20.04; cf

. Laster v. State , 275 S.W .3d 512 , 5 2 2 –24 (Tex. Crim. App. 2009) (af firming defe ndant’s ag g rava ted kidnapping conviction afte r concluding that jury could infer his i n t en t to secr ete his victim when he pulled he r aw ay from her brother, w ho was he r only available help). The court’s instruction stated, “A person’ s use of deadly forc e ag ainst another that would 6 otherwise constitute the crime of MU R DER is not a criminal offe nse if the person rea sonably believed deadly forc e was immed i at el y n ec es sary to protec t the person ag ainst the other’s use or attempted use of unlawful deadly forc e.” See Tex. Penal Code § 9.32(a) (2)( A); see also Comm. on Pattern J ury Charg es, State Ba r of Tex., Texas Criminal Pattern Jury Charges: Criminal Defense s CPJ C 32.2 & cmt. (2015) (I nstruction—Self-De fense Inv o l v i n g Dea dly For ce to Protect Ag ainst Dea dly For ce B y Another; Releva

nt Statutes). 14Issue 2: No egr egious harm from lack of instruction on p resum ption of reasonableness I n her rela ted second issue, Preston complains that the char g e did not instruct the jury

on the presumption of rea sonablene ss as to her purported belief that the use of deadly forc e wa s immediately nece ssary . The presumption of rea sonablene ss is set forth in section 9.32 of the Penal Code, which provides that an actor ’s belief that deadly forc e is immediately nece ssary is presumed

rea sonable if: (1) the actor did not provoke the person ag ainst whom the forc e was used; (2) the actor

was not otherwise eng ag ed in criminal activity , other than a class C misdemeanor traff ic violation,
at the time the forc e was used; and (3) the actor knew or had rea son to believe that the person ag ainst whom the deadly forc e was used was committing or attempting to c ommit any of cer tain specifie d offe nses, including—a s Preston alleg es here —ag g rava ted kidnapping or mur d er . See Tex. Penal Code § 9.32(a) (2)( B) , (b)( 1)(C), (2), (3). The Penal Code “re quires that a presumption that favor s the defe ndant be submitt ed to the jury if there is sufficie nt evidenc e of the fac ts that g ive rise to the presumption

. . . unless the court is satisfied that the evidenc e as a whole clea rly prec ludes a finding bey ond a rea sonable doubt of the presumed fac t.” Id

. § 2.05(b)( 1); Villarreal , 453 S.W .3d at 431.

Deter mining whether char g e err or cause d eg reg ious harm to a defe ndant require s consideration of the fac tors set forth in Almanza : (1) the entirety of the jury char g e, (2) the state of the evidenc e, including the contested issues and weig ht of probative evidenc e, (3) the arg uments of counsel, and (4) any other rele vant information reve aled by the trial rec ord as a whole. Villarreal , 453 S.W .3d at 433 (citing Almanza , 686 S.W .2d at 171). Our consideration of these fac tors, set forth below, persua des us that the lack of an instruction to the jury on the presumption of rea sonablene ss did not cause Pre ston eg reg ious harm.

15a. Entirety of jury charge The district court’s char g e corr ectly instructed the jury on the elements of murder as char g ed in the indictment, provided re l ev ant definitions and instructions on self-de fense , and addre ssed the State’s burden to disprove self-de fense

. The sel f-defense instructions corr ectly informed the j u ry o f t h e general law of self-de fense , including when the use of deadly forc e is justified under the statute, the definition of “reasonable belief,” and the exclusion of conduct in response to verba l provocation alone. The jury was also instructed on the co n d i t i o n s i n which a person has no duty to retre at before using deadly forc e. The jury was further inst ructe d that if the State did not meet its burde n of proving Preston g uilty beyond a re asonable doubt, the jury should rende r a ve rdict of “ not guilty .”

Additionally , as noted in our discussion of Preston’s first issue, the jury was provided with an instruction justify ing a person’ s use of de adly

forc e to prevent the us e or attempted use of unlawful deadly forc e by another

. See Tex. Penal Code § 9.32(a) (2)( A). The char g e did not instruct the jury on the presumption of rea sonablene ss in section 9.32(b) of the Penal Code as to a person’ s belief that the us e of deadly forc e was immediat el y n ecessary . See id. § 9.32(b). But as the S tate po i n t s out, even if the presumption-of- rea sonablene ss instruction had been g iven, the complete instruction would have allowed the jury to disreg ard that presumption if they conclude d that the State met its burden of showing bey ond a re asonable doubt that Preston had no rea sonable belief, when she struck Her

nandez, that he was in the imminent ac t of committing or attempting to commit murder or ag g ravated kidnapping

. See id .; Villarreal , 453 S.W .3d at 442–43; see also Raza v. State , No. 05-17-00066- CR, 2018 Tex. App. L EXI S 1517, at *19–20 (Tex. App.—Dallas Fe b. 27, 2018,

16no pet.) (mem. op., not desig nated for publication); Angton v. State , No. 05-14-01038- CR, 2015 Tex.

Ap p . L E XI S 11548, at *11–12 (App.—Da llas Nov. 6, 2015). Whether the presumption was applicable here depende d on the evidenc e at trial, including the plausibilit y of the evidenc e raising the issue self-de fense

. See Villarreal , 453 S.W .3d at 436; see also Angton , 2015 Tex. App. L EXI S 11548, at *12. Thus, we pr ocee d to consider that e vidence

.

b. State of the evidence At trial, Presto n ’s ac count of the events leading to Her nandez’s death was that Her nandez followed her into their bedroom holding a knife sharpe ner, she g ot on the bed and beg an kicking him awa

y from her, she kicked him in the middle of his stomach, he g ot on top of her in bed, then she “thinks” that she held a rock with both hands i n an o v er h ead arc hing motion and struck Her nandez, who hit his head on a window, fe ll on top of her, and die d. But the evidenc e prese nted to the jury was inconsistent with P re s t o n ’s acc ount of events and, as she acknow ledg ed, “made no s en s e” for her claim that she killed Her nandez in self-de fense . That evide nce inc luded:

• The testimony of Preston’s son Griff in, who stat ed t h at his mother told him, “I kille d J o e,” that Her

nandez was aslee p when she hit him with a rock, that Her nandez came to and said “just finish me off,” and that she then smothered Her nandez with a pillow;

• Griff in’s statement to police that his mother panicke d, to l d him not to say any thing to any

body , and expressed c oncer n about jail or the de ath pena lty ;

• Preston’s testimony

that she “must have ” told Griff in those things;

• Preston’s testimony that she moved Her nandez’s body from t h e b ed an d also asked he r son to help her

move the body

outside;

17• Gr i ffin’s testimony that when his mother asked him to help move Her nandez’s body outside, he wa s conce rned that it was to cover up a murder;

• Griff in’s testimony

that he neve r saw H erna

ndez phy sically

abuse his mother;

• Preston’s testimony

that she neve r ca lled 911 for a ny abuse directed at her fr om Her nandez and ne ver soug ht a protec tive order ;

• Griff in’s testimony

that he told his mother to call the police or he would;

• Preston’s testimony that she remove d the mattress topper from the bed to a shed;

• Preston’s testimony

that she moved the rock she had used to kill Her nandez and place d it by

his left hand on the f

loor of the be droom;

• Preston’s t estimony that she moved the knife sharpe ner from the bedroom floor and took it back to the kitche n;

• Preston’s testimony that she tried to put g asoline on Her nandez’s body and burn it;

• Preston’s acknow ledg ment that if she killed Her nandez in self defe nse, it did not make se nse for

her to a lter the sce ne whe re she killed him or to burn his body ;

• Preston’s statement to police tha t she cha ng ed clothes two or three times before calling 911;

• Prest on’s testimony that she photogr aphed some of her bruises with her phone minutes before calling 911;

• Preston’s call to 911, the day afte r she killed Her nandez, reque sting help for a fire in her house that she later tel l s t h e o p er ator she has put out herse lf with a fire exti ng uisher;

• Preston’s s tatement to the 911 oper ator that He rnande z “fell and hit his head on a roc k . . . y esterda

y ”;

• Preston’s testimony

about her “aloof ” attitude in her

call with the 911 oper ator;

• Deputy J ower s’s testimony that Preston told him Her nandez had “hit his head on a roc k”;

18• Parame dic W oods’s testimony that Preston told him abo u t how colors ref lected and “how cool it looked” when she spray ed g asoline from a Win dex bottle on Her nandez’s body

in prepa ration for burning it;

• Woods’s testimony that Preston said she called 911 beca use “[w]hen she lit [Hernande z] on fire the house beg an burning ” and she wanted to save her house;

• Rang er Bobo’ s testimony and the medical examiner’s testimony that Her nandez had no def

ensive wounds;

• R an ger Bo bo’s testimony that the left side of Her nandez’s fac e and head wer e saturate d with blood, but no blood was on Her nandez’s neck, arms, fore arms, hands or the upper part of his shirt, indicating that Her nandez had not been in an uprig ht position at the time of his “bloodletting event” beca use blood would have been c oming downw ard if he wer e in an upr ight position;

• Rang er Bobo’ s testimony that a blood smear on a window in t h e room wher e Her nandez was found would not have been cause d b y an uprig ht person falling down and inward toward the window—as Preston theorized—bec ause the smear was “ g oing in the opposite dire ction”;

• Rang er Bobo’ s testimony that the location of blood spatter on Preston’s tank top and shorts rec overe d from her bathroom was inconsistent with someone being on top of another

person;

• Rang er Bobo’ s testimony that the blood spatter located “kind of equally

. . . acr oss the window” indicated Her nandez’s lo cation when he was struck and was inconsistent with Her

nandez having been seate d on the bed, standing on the bed, or standing beside the bed when he was struck beca use no part of his body shielded the distribution of the blood from the window;

• Rang er Bobo’ s t estimony , afte r examination of the blood spatter patterns and investigation of the crime scene , t h at Her nandez was in bed, ly ing on his back, unawa re a nd still , when He rnande z was struck with a blunt instrument;

• Rang er Pena’s testimony that the bedroom wher e Her nandez was found showed no signs of

an alter cation;

• The lack of Preston’s DNA on the handle of the knife sharpe ner that she testified she picke d up from the be droom floor a nd took back to the kitche n;

19• The lack of any statement by Her nandez to Preston indicating his intention to kill Preston or any one else ;

• The lac k of any

witness testimony

attackingGriff

in’s cre dibilit y ; and

• Preston’s testimony that her actions afte r she killed Her nandez did not make any sense “ as fa

r as it being self-de fense .”

Preston’s testimony on self-de fense was w e a k in c o mp a

r is o n w it h the evidenc e at trial
contra dicting her acc ount of events. Even if the district court had i n cl u d ed an instruction on the presumption of re asonable ness in the cha rg e, a r ational jury

prese nted with the evidenc e fr om this trial could have still reje cted Pre ston’s claim of self-de fense and found beyond a rea sonable doubt that: (1) Preston did not believe her use of deadly forc e was immediately nece ssary to protec t herse lf from Her nandez’s use or attempted u s e o f unlawful deadly forc e for attempted ag g ravated kidnapping or attempted murder, or (2) Preston’s belief that her use of deadly forc e was immediately

nece ssary was unre asonable

. We conclude that there was no substantial ri s k that Preston was eg reg iously harme d by the lack of an instruction on the presumption of rea sonablenes s and that it is unlikely the instruction would have chang ed the outcome, i.e., the jury ’s re j ec t ion of Preston’s claim of self-de fense

. See Villarr ea l , 4 5 3 S

. W

. 3d at 439; see also Raza , 2018 Tex. App. L EXI S 1517, at

* 1 9

– 2 0; Angton , 2015 Tex. App. L EXI S 11548, at *10–16; McClesk y v. State , 224 S.W .3d 40 5 , 409–10 (Tex. App.—Houston [1st Dist.] 2006, pet. ref ’d) (af firming murder conviction of wife who claimed self-de fense and noting that her testimony was only evidenc e sug g esting that her husband

was ag g ressor on day of events leading up to his murder). Ac cording ly , this fa ctor weig hs ag ainst a dete rmination that Preston sustained eg reg ious harm.
20c. Ar gum ents of coun sel Counsels’ arguments to the jury show that both parties focuse d primarily on whether Preston acte d in s el f- d ef

ense. The State argued that the jury should reje ct Preston’s claim of self d ef en s e as contra

ry to the evidenc e and not cre dible. The defe nse argued that the State failed t o disprove Preston’s claim of self-de fense and that the evidenc e did not support the State’s theory of how Her nandez was killed. Neither of them cente red their arguments on whether Preston rea sonably believed that deadly

forc e wa s immediately

nece ssary . See V

illarreal , 453 S.W .3d at 44–42. The prosec utor’s opening statement contende d that the evidenc e would show Preston

mu r d ere d Her

nandez, “cold- bloodedly ” and “utterly without remorse or s o r r o w . ” A f te r s u mm a r iz in g the testimony of the witnesses he expected to call, the prosec utor stated that “heat of passion and self defe nse are not issues that arise from this ty pe of fac t pattern.” By contra st, d ef ense counsel’s opening statement contended t hat Preston killed a man who was beating her, which explained her
att itude, demea

nor, and lack of remorse afte r Her nandez’s death. After summarizing what h e expected the evidenc e to show, defe nse counsel said that the State would be unable to prove that “it happene d the way

that they say it happened.” Def

ense c ounsel told the jury multipl e times during his opening that the evidenc e would not support the prosec ution’s theory that Her nandez was killed in his sleep. C losing argument by the prosec utor focuse d primarily on the amount of evide n ce contra dicting Preston’s claim of self-de fense —including the phy sical evidenc e, fore nsic testimony , and her son’s testimony —and Prest o n ’s l ack of cre dibilit y —including her own inconsistent
statements to first responde rs that Her nandez had hit his head on a rock and that she had hit him with

21a rock. The prosec utor contende d that Preston was not cre dible—“He r testimony has been so

impeache d that y ou cannot believe one thingthat she said”—but that he r son was cre dible—“You have no rea son to disbe lieve any thing that that boy said. He absolutely told the truth to y ou.” The prosec utor stated that as part of her self-de fense claim, Preston testified she was in fea r for her life, but he noted that the photogr aphs in evidenc e showed no defe nsive marks or wounds sug g esting that

a rea sonable person would have such fea r and that Preston’s reluc tance to call 911 afte r Her nandez’s death was more consistent with “cold- blooded murder.” The prosec utor conclude d that, “it comes down to what y ou hear d from the State’s case and what y ou hear d from the defe ndant.” He said that the overw helming evidenc e proved “the g uilt of the defe ndant in the intention al murder of J oe Her nandez and that self-de fense , any thing alleg ed or raised in self-de fense , does not hold water .” Closing argument by defe nse counsel focuse d on his contention that the State had not met its burden of disproving Preston’s claim of self-de fense

. Towar d the end of his closing , he asked the jury a question about Preston’s belief that she wa s go ing to be hurt: “So did she rea sonably believe that she was g oing to be hurt using de adly conduct? Has any

body ever been beate n with a thing like that? Probably not.” But the majority of his closing was spent on matters he char acte rized

as “ver y , very rele vant”: the absenc e of blood spatter from a fan in the bedroom, an alt er n ati ve

scena rio for the blood smear and blood drop on the window, and the bruising shown in photogr aphs of Preston. Def

ense counsel minimi zed the “blank spots” in Preston’s memory , stating that “violent situations do unusual things to people’ s minds” and that, “[w]hen she testified, I didn’t like a word she said, fra

nkly

. I didn’t like the attitude she had, but I did unde rstand

. . . how a person who had g one throug h what she had g one throug h, okay , could have problems reme mbering with particula rity

22the things that happ en ed on those day s.” Def ense counsel also minimi zed Griff in’s testimony by noting that “16-y ear -olds say things when they ’re upset and they g et stuck with those statements afte r they make them to police.”

We conclude that the focus of counsels’ a

rg uments to the jury , befor e and after the prese ntation of the evidenc e, weig h aga inst a deter mination that the lack of an instruction on the presumption of rea sonablene ss cause d Preston eg reg ious harm. See Villarreal , 4 5 3 S.W .3d at 441–42; see also Angton , 2015 Tex. App. L EXI S 11548, at *15–16.

d. Other re levant inf

orm ation f

rom trial re cord The last Almanza fac tor require s considera tion of any other rele vant information

reve aled by the rec ord as a whole. See Villarreal , 453 S.W .3d at 433 (citing Almanza , 686 S.W .2d
at 171). Howeve r, we have considere d the rele vant information from the t ri al record in our discussion of the three prec eding fac tors.

After considering all the Almanza fac tors, we conclude that the lack of an instruction

on the presumption of rea sonablene ss did not c ause Pre ston eg reg ious harm. See id . We ove rrule Preston’s sec ond issue.

Issue Three: No egre gious harm as to instruction that self-def ense requires m ore than ve rbal provocation I n her third issue, Preston complains about t h e i n cl usion of an instruction in the char g e—to which she did not object below—stating that self-de fense require s more t h an v erbal provocation. As noted above, we review cl ai ms of jury char g e err or under the test set forth in Almanza , deter

mining first whether err or exis ts, then ev al uating the harm cause d by any err or.

23686 S .W.2d at 171; Arteaga , 521 S.W .3d at 333; Ngo , 175 S.W .3d at 743. When, as here , the

defe ndant fails to prese rve erro r b y t imely objection at trial, reve rsal is war rante d only upon a showing of “eg reg ious harm” such t hat t he defenda nt was deprived of “a fai r an d i m p ar t ial trial.” Mende z , 545 S.W .3d at 552. Her e, Preston contends that she was eg reg iously harme d by the last para g raph of the court’s instruction on self-de fense , which states: “Self-de fense does not cover conduct in response to verba l provocation alone. The defe ndant must have rea sonably believed the other person had done more than verba lly provoke the defe ndant.” Preston’s view is that this instruction “wa s a non-statutory expansion of provocation, and thus, a prohi b i t ed co m ment on the weig ht of the evidenc e.” She relies on W alters v. State , 247 S.W .3 d 2 04 (Tex. Crim. App. 2007), in which the Court of C riminal Appea ls conclude d that the t rial court did not err by ref using W al t er s’s reque st to instruct the jury t h at i t co u ld consider “prior verba l threa ts” in deciding whether he acte d in self-de fense

. Id

. at 214. The Court held that parties are not entitled to any specia l, non-statutory jury instructions on how to consider or evaluate specific ty pes of evidenc e introduced to prove or disprove self- defe nse. Id . (noting that “[n] ormally , if the instruction is not derived fr om the code, it is not ‘applica

ble law’ ”). Howeve r, the court’s instruction here i s d er ived from the Penal Code. Subsection 9.31(b)( 1) of the Code states that, “The use of forc e ag ainst another is not justified: (1) in response to verba l provocation alone[

. ] ” T ex . Penal Code § 9.31(b)( 1). The court’s instruction is taken verbatim from the instruction on self-de fense in the Texas Criminal Pattern J ury Charg es, which is based on section 9.31. See Texas Criminal Pattern Jury Charges: Criminal Defense s CPJ C 32.2 &

24cmt. Unlike the “prior verba l threa ts” ref ere nced by the defe ndant’s proposed instruction in W alters , this instruction does not allude to any particula r ty pe of evidenc e; rathe r, it rec ites a corr ect statement of the law of self-de fense from the Penal Code. Cf. W alters , 247 S.W .3d at 2 14 (noting that defe ndant’ s p r o p o s e d in s tr u c ti o n focuse d jury ’s attention on specific ty pe of evidenc e that he claimed made victim’s actions appea r dang erous to him); see Allen v. State , No. 03-15-00420- CR, 2017 Tex. App. L EXI S 3938, at *10–11 (Tex. App.—Austin May 2, 2017, pet. ref ’d) (mem. op., not desig nated for publication) (re

jectingdefe ndant’s contention that court commented on weig ht of evide nce by including jur

y instruction on “ver

bal provocation alone” ); Castil lo v. State , No. 14-03-00034- CR, 2005 Tex. App. L EXI S 1382, at *33–35 (Tex. App.—Houston [14t h Dist.] Fe b. 15, 2005, pet. ref ’d) (mem. op., not desig nated f or publication) ( same). We conclude t h at t h e i nstruction provided to the jury was not a “non-statutory” instruction, did not constitute a comment on the we i gh t o f an y particula r evidenc e, and did not

cause Preston eg reg ious harm such that she was deprive d of a fair and impartial trial. See Mende z , 545 S

. W

. 3 d at 5 5 2 ; see also Allen , 2017 Tex. App. L EXI S 3938, at *10–11; Castil lo , 2005 Tex. App. L EXI S 1382, at *33–35. We overrule Pre ston’s third issue.

Issue Four: No a b u s e o f discretion and no harm from denial of addi tional instruction on

State’ s bu rden to disprove self-def ense I n her fo u rt h i ssue, Preston complains that the court denied her reque st for an additional instruction in the char g e as to the State’s burde n to disprove self- defe nse. Specific ally , she challenges t h e d istrict court’s denial of her reque sted instruction that would have added the underlined part of this phrase to the Ver dict section of the char g e: “The verdic t of ‘not g uilty ’ simply

25means that the State’s evidenc e does not prove the defe ndant g uilty bey ond a rea sonable doubt, OR

that the State fa iled to prove, be y ond a re asonable doubt, that self-de fense did not apply .”

We revie w a trial court’s denial of a reque sted jury instruction for an abuse of discretion. See W

esbrook v. State , 29 S.W .3d 103, 122 (Tex. Cri m . Ap p . 2000); see also Luper v. Stat e , No. 05-13-01259-CR, 2014 Tex. App. L EXI S 12007, at *4–5 (Te x . App.—Dallas Oct. 3 1 , 2 0 1 4 , n o pet.) (mem. op., not desig nated for publication). A trial court does not abuse its discretion if i t s decision is within the zone of rea sonable disag ree ment. See Casey v. State , 215 S.W .3d 870, 879 (Tex. Crim. App. 2007); see also Luper , 2014 Tex. App. L EXI S 12007, at *5. When revie wing claims of jury -cha rg e err or, we first deter

mine whether an err or exis ts in the char g e. Arteaga , 521 S.W

. 3 d at 3 3 3

. I f the ref used char g e is adequately cover ed by the char g e g iven, no harm is shown. Druery , 225 S.W

. 3 d at 505; Steve ns v. State , 671 S.W .2d 517, 522 (Tex. Crim. App. 1984) (conc luding that no harm was shown by t ri al co u rt’s ref usal of defe ndant’s reque sted char g e bec ause it wa s substantially same a s char g e g iven by

court). Her e, as the State corr ectly n o t es , t h e Self-De fense Bur den of Proof section of the char g e included an instruction stating, “The defe ndant is not require d to prove self-de fense

. Rather, the [S ]t ate must prove, beyond a re asonable doubt, that self-de fense does not apply to the defe ndant’s conduct.” This trac ks the burden- of-pr oof instruction for a claim of self-de fense as set fo rt h in the Texas Criminal Pattern J ury Charg es. See Texas Criminal Pattern Jury Char g es : Criminal Defense

s CPJ C 32.2; see also Tex. Penal Code § 2.03(d) (“I f the issue of the exis tence of

a defe nse is submitt ed to the jury , the court shall char g e that a rea sonable doubt on the issue require s that the defe ndant be acquitted.” ) During the char g e confe renc e below, Preston acknow ledg ed that

26an appropr iate instruction was alre ady in the char g e, and the court deter mined that th e re q u es t ed instruction was unnec essar y : [Defense counsel]: No w, i t al s o cannot be ignor ed that in other sections of t h e

char g e the appropr iate burdens are discussed, and I believe that to be appropr iate; howeve r, if—I ’d like to be consist ent throug hout this char g e, and, as such, I ’m asking th e j u dg e to—the Court to what I would call reme dy this sect i o n o f the proposed jury

char g e. Tha t’s my

reque st, J udg e.

. . . . THE COURT: Al l ri ght. I ’m g oing to—from my revie w of t h e p ro p o s ed

instr uctions, it appea

rs to be very clea

r that the State has the burden of disproving self-de fense bey ond a rea sonable doubt and I don’t believe that the proposed lang uag e is nece ssary . The lang uag e that i s included is simply part of the form lang uag e that we use in all of the case s . Obviously , counsel for the defe nse is able to point out the other portions of the instructions that deal with self-de fense and the burden being on the State to disprove self-de fense beyond a rea sonable doubt, s o I ’m not going to chang e the languag e of these instructions to i n cl u d e the proposed la

ng uag e that y ou’ve r ead into the r ecor d. [Defense counsel]: Thank y ou, J udg e.

Preston’s reque s t ed i n s t ru cti on—stating that she could be found not g uilty if the State failed to prove, bey ond a rea sonable doubt, that her claim of self-de fense did not apply —is substantially the

sam e as the instruction g iven by the court explaining that it was the State’s burden to disprove, bey ond a rea sonable doubt, Preston’s claim of self-de fense

. Acc ording ly , we conclude that no abuse of discretion and no harm is shown by the denial of Preston’s reque sted additional instruction. See W esbrook , 29 S.W .3d at 122; Steve ns , 671 S.W .2d at 522. We overr ule Preston’s four

th issue.

27Issue Five : No abuse of d iscre tion in adm ission of b lood-spatter t estim ony I n her fifth issue, Preston complains of the a d mission of blood-spatter testimony from Rang er Bobo. Specifica lly , she complains that the office r provided specula tive testimony by stating that a blood smear

on the window wa s “most likely cause d” by

a foa m mattress top. At the out set, we note that it is unclea r whether Preston prese rved this issue for appellate revie w. To prese rve error for appellate review, a party must make a t i m ely and specific objection at the ear liest possible opportunity and obtain an adver se ruling from the trial court, and the complaint on appea l must correspond to the objec tion made at trial. Y azdchi v. State , 428 S.W .3d 831, 844 (Tex. Crim. App. 2014); see Tex. R. App. P. 33.1(a)

. A party may object to expert opinion

on at least three specific g rounds: (1) qualifica tion, (2) reliability , and (3) rele vance . Shaw v. State , 329 S.W .3d 645, 655 (Tex. App.—Houston [14t h Dist.] 2010, pet. ref ’d); see C

rider v. State , No. 11-16-00302-CR, 2018 Tex. App. L EXI S 2285, at *15 (Tex. App.—Eastland Mar. 3 0 , 2 0 1 8,

no pet.) (mem. op., not desig nated fo r p ublication). Qualification, reliability , and rele vance raise distinct questions and issues, and a party ’s objection based on one of these g rounds does not prese rve

err or as to a

nother. Shaw , 329 S.W .3d at 655; see Vela v. State , 209 S.W .3d 128, 131 (Tex. Crim. App. 2006) (noting that witness’s qualifica tions as expert are distinct from reliability and rele vance

an d s h o u ld be evaluated independe ntly ); see also Crider , 2018 Tex. App. L EXI S 2285, at *15 (conc luding that de fenda

nt failed to pre serve her c omplaint a bout r eliability of experts’ opinions). Preston made none of these obje ctions below.

At trial, outside the jury ’s prese nce, counsel and the court discussed Rang er Bobo’ s opinion about the blood smear on a window in Preston’s bedr oom:

28THE COURT: Ba ck on t h e re co rd

. And at this point then Ms. Preston is prese nt in the courtroom. Counsel is prese nt. State is prese nt. And I believe that t h e question was asked based on y our training and experience what y ou b el i ev e the cause of the pattern of the blood on the window s h o wn in the State’s Ex hibit

. . . 149, what the cause was. And coun s el fo r the defe nse asked to approa ch [t he bench]

. . . an d i n s t ea d of taking the witness on voir dire, instead asked what the answe r to that question would be. So if y ou’re asked th at q u estion, what is y our answe r g oing to be ? [R ang er Bobo]: Well my answe r is g oing to be obviously a movement throug h deposited blood on there

. And when y ou talk about the object and the objec t specifica lly it’s most probably

— [C ourt repor

ter interr upts briefly

beca use of diff

iculty hear ing the witness.] Okay

. Obviously there ’s movement throug h blood. That’s clea r and appar ent. Deposited bloo d that was prior— previously th ere. When talking about the object of what moves throug h there it appea rs like a pattern t ransfer or a swipe most likely cause d from the foam mattress atop—the mattress that wa s removed f rom the sce ne. [Defense counsel]: A ll r ig h t. I d o n ’ t h a

v e a ny o b je c ti o n to th a

t, e xc e p t f o r th e la s t p a r t a b o ut a s s u mi n g th a t it ’ s th e f o a m ma tt r e s s . T h a t w o u ld b e my o b je c ti o n . THE COURT: Okay

. Well, y our objection is overr uled then. You can c rossexamine the witnes s about his response , but based on the evidenc e that’s been admitted at th i s t i m e, along with the photos that show the foam mattress topper, or whateve r we’ re calling it, it clea

rly shows blood on the top of that mat tress. That’s a—base d on training and experi ence that’s a rea sonable

. . . plausible

. . . explana t i o n , b ut, clea rly , y ou have a n opportunity

to cross-e x amine the witness as to what the basis for that belief is g oing to be

. [Defense counsel]: All rig ht.

29Def

ense counsel’s statement that he had no objection—“e x cept for the last part about assuming that it’s the foam mattress. That’s my objection”—wa s no objection at all. Rang er B obo never stated that h e was “assuming ” any thing. We are not persua ded that Preston prese rved her appellate complaint as to the admission of specula tive testimony

. See T ex . R

. App. P. 33.1; Y azdchi , 428 S.W .3d at 844 (conc luding that complaint on appea l must corr espond to objection made at trial).

Even if Preston h ad p reserved her complaint, we cannot ag ree that Rang er Bobo’ s testimony about the cause of the blood smear on the window should have been ex cl u d ed as specula tion. Rely ing on Carter v. Steere Tank Lines, Inc ., Preston contends that Rang er Bobo “wa s not prese nt when the blood was deposited,” and “he was not in a position to observe what happene d, thus his testimony was inadmissible speculation.” See 835 S.W .2d 176 (Tex. App.—Amar illo 1992, writ d en i ed ). I n Carter , appellants challeng ed a take- nothing judgme nt in their wrong ful death lawsuit arising from a traff ic acc ident. Id

. at 177. A harmless err or discussed in the appea l was the trial court’s admission of deposition testimony from a witness, who was 500 or 600 fee t awa y from the acc ident scene , conce rning the absenc e of obstructions that would have preve nted the driver of

a vehicle from seeing the truck that he hit. Id

. at 183–85 (noting that it was unclea r whether witness was in position to obser

ve what driver had observe d and that objection to speculation should have been sustained). Carter lends no support to Pre ston’s view that a Texas Ra ng er’ s testimony about blood spatter—suc h as the cau s e of blood smeare d on a window at a crime scene —is speculative unless he wa s prese nt when the blood wa s deposited and wa tched it happe n. Next, Preston complains that the trial court fou n d Rang er’ s Bobo’ s explanation about the blood smear “plausible,” which in her estimation meant the testimony was “in the rea lm of mere

30theor i z i n g, g uessing , and specula tion.” She contends that her “self- defe nse acc ount” of events,

which “allowe d an infere nce that the smear was cause d by Her nandez ’s fall” afte r their phy sical strug g le—was undermined by Rang er Bobo’ s opinion that Her nandez was struck while lying down

m o t i o nless in bed. We revie w the trial court’s admission of expert testimony under an abuse o f 7 discretion standard, reve rsing the ruling only if the decision is outside the zone of rea sonable disag ree ment. Blasdell v. State , 470 S.W .3d 59, 62 (Tex. Crim. App. 2015). Her e, Preston contends only that Offic er B obo’s testimony was “ specula tive” under

Texas Rule of Evidence 703. Under the Texas Rules of Evidence , expert testimony is ad m i s s i b l e when the trial
court is satisfied that: (1) the expert is qualified by knowledg e, skill, experience , training , or education; (2) the subject of the testimony is appropr iate for expert testimony ; and (3) the testimony will assist t he trier of fact i n deciding the case. Tex. R. Evid. 702; Alvarado v. State , 912 S.W .2d 199, 215–16 (Tex. Crim. App. 1995); see De Leon v. State , No. 04-04-00883- CR, 2006 Tex. App. L EXI S 813, at *6 (Tex. App.—San Antonio Fe b. 1, 2006, pet. ref ’d) (mem. op., not desig nated for publication). The specia l knowledg e qualifying a witness to g ive an expert opinion may be derive d f r o m s p e c ia li ze d e d

u c a ti o n , p r a c ti c a l e xp e r ie n c e , a s tu d y o f te c hn ic a l w o r

k s , o r a v a r y in g c o mb in a

ti o n of these thing s. Tex. R . Evid. 702; W yatt v. State , 23 S.W .3d 18, 27 (Tex. Crim. App. 2000).

We note that Preston’s son Griff in provided the jury with essentially the same information 7 contra dicting his mother’s claim of self-de fense when he testified—without objection—that she told him Her nandez was aslee p in bed when she hit him on t h e h ea d wi t h a rock and killed him. See Mack v. State , 928 S.W .2d 2 1 9 , 2 2 5 (Tex. App.—Austin 1996, pet. ref ’d) (no reve rsible err or prese nted if other evidenc e at trial is admitted without objection p ro v ing same fac t or fac ts that alleg edly inadmissible evidence soug ht to prove). 31Rule 702 allows “a witness qualified as an ex pert b y knowledg e, ski ll, experience ,

training , or education” to g ive opinion testimony based on “scie ntific, technica l, or other specia liz ed knowledg e.” Tex. R. Evid. 702. Rule 703 specifie s the b as es o n wh i ch an expert may base his testimony —stating that an expert may base an opinion on fac ts or data in the case that the expert has been made awa

re of, rev iewed, or persona lly observe d—and that the fac ts or data need not be admissible for the opinion to be admitted if experts in the particula r field would rea sonably rely on those kinds of fac ts or data. Tex. R. Evid. 703. An expert’s opinion must be more than “subjec tive belief or unsupported specu l at i o n , ” b u t i t need not rea ch the level of “known to a certainty ” to be admissible. Daubert v. Merre ll Dow Pharm., Inc ., 509 U.S. 579, 590 (1993); see also Hernande z v. State , No. 03-04-00356- CR, 2006 Tex. App. L EXI S 722, at *8–9 (Tex. App.—Austin J an. 26, 2006, pet. ref ’d) (mem. op., not desig nated for publication). “Ge nera lly , blood spatter experts inspect the phy sical evidenc e to deter mine the injuries suffe red and their location with respe ct to the other phy sical evide nce.” Ex parte M owbray , 943 S.W .2d 461, 462 (Tex. Crim. App. 1996). Preston contends that Rang er Bobo’ s testimony was “mer e theorizing, g uessing , and specula tion,” but the trial rec ord supports a conclusion that it was based on the evidenc e in the case t h at h e had been made aware of, reviewed, or persona lly observe d. See Tex. R. Evid. 703

. Af t er summarizing his qualifica tions —including a crime- scene -investig ator cer tification held by only 67 8

Preston made no challeng e to Rang er Bobo’ s qualifica tions. See Vela v. State , 209 S.W .3d 8 128, 131 (Tex. Crim. App. 2006) (noting that witness’s qualifica tio n s as ex p ert are distinct from reliability and rele vance i s s u es and should be evaluated independe ntly); see also Crider v. State , No. 11-16-00302-CR, 2018 Tex. App. L EXI S 2285, at * 1 5 (T ex . App.—Eastland Mar. 30, 2018, no pet.) (mem. op., not desig nated for publication) (conc luding that defe ndant failed to prese rve her complaint about re liability of experts’ opinions).

32people in Texas and his completion of 80 hours of blood-spatter training betwee n the Texas Rang er

service and the National For ensic Aca demy —Ranger Bo b o d irec ted the jury ’s attention to photogr aphs admitted into evidenc e. The photogr aphs showed the blood-stained window next to a bed in the master bedroom wher e Her nandez ’s b o d y wa s found. Portions of the window wer e marke d with numbered c ards showing the locations of blood evide nce.

Using the photogr aphs, Rang er Bobo identified specific char acte ristics of the blood

on the window that informed his opinion about how the blood was deposited. He testified that the window location marke d with car d 19 was a “patter n transfe r” showing that “blood is being moved,” “being swiped afte r it’s been deposited.” He noted that the blood was reddish brown, looked “a littl e bit hazy ,” and had “some striations in it indicating movement.” He explained that the blood smear provided “directionality ” that was not suppo rt ed b y someone falling down and inward toward the window—as Preston theorized—bec ause “it’s g oing in the opposite direc tion.” He also explained that the blood smear beca me thinner as the sou rc e o f the blood g ot far ther awa y . Offic er Bobo
contra sted the blood smear at car d 19 with the blood drip located at car d 18, which was aff ecte d by “the downw ard pull of g ravity .”

Fur ther, Rang er Bobo testified that the blood spatter on the window indicated wher e Her nandez was when Preston struck him. Rang er Bobo stated that if Her nandez had been seate d on the bed, standing on the bed, or standing beside the bed when he was struck and bled, his body would have shielded the blood from g oing backw ard, and the blood spatter would have been unable to rea ch the “tar g et” wall and window. This wou l d h ave resulted in a blood-spatter “void”—not “a direc t outline of somebody ,” but “an appar ent absenc e of blood in a cer tain are a beca

use of that, beca

use

33of an intermediar y targ et or person.” Given the blood’s l o cation “kind of equally

. . . acr oss the window,” Range r Bobo testified that he c ould deduce Her nandez’s location when was struc k. He conclude d that Her

nandez was ly

ing dow n on his back in the be d when Pre ston hit hi m. Ba sed on the blood-spatter information, Rang er Bobo opined that the most likely and probable source of the blood smear on the window was the foam mattress topper that was on the bed:
[P rosec utor:] All righ t

. No w, I had asked y ou—rig ht befor e the court took a

15-minute rec ess I asked y ou what—if y ou had an opinion base d on y our ex perie nce and t raining as t o what that—and f org ive me if I ’m not using the same terminolog y as y o u

— wh at that smear was cause d by , and y ou said y ou did y ou have an opinion on what y ou thought it wa s. And would you g o ahea d and express that to the ladies a

nd g entlemen of

the jury ? [R ang er Bobo:] My opinion on what this is would be a pattern transfe r. Ba sically

blood—blood is being moved. I t’s being swiped afte r i t ’s been deposited. And the obje ct—is that what we ’re talking a bout? [P rosec utor:] Yes. [R ang er B obo:] The objec t specifica lly , as fa r as pr obability and mos t likely , and from a million other thi ng s, is going to be the foa m mattress that was—that was situated atop this mattress when this eve nt unfolded.

We conclude that the district court could have rea sonably determ ined that Rang er Bobo’ s expert testimony

—which the court found was based on his training and experience —was not “mer e theorizing, g uessing , and specula tion,” that blood-spatter analy sis was an appropr iate subject of expert testimony , and that his testimony would provide the jury with specia liz ed knowledg e that would assist them in understanding the evidenc e or in deter mining a fac t in issue. See Tex. R. Evid. 702; Alvarado , 912 S.W .2d at 215–16; see also D e Leon , 2006 Tex. App. L EXI S 813, at *6–7; cf.
34Maxwell v. State , No. 06-12-00194- CR, 2014 Tex. App. L EXI S 1514, at *5 (Tex. App.—Texarkana

Fe b. 12, 2014, no pet.) (mem. op., not desig nated for publication) (noting detec tive’s conclusion that “extreme amount of forc e [was] applied to something with blood” g iven “mostly h i gh velocity ” blood spattered around headboa rd of bed at crime scene ); Holmes v. State , 135 S.W .3d 178, 197 (Tex. A pp.—Waco 2004, no pet.) (Va nce, J ., concur

ring ) (conc luding that trial court did not err in admitting detec tive’s testimony on blood-spatter a naly sis, including his opinion that “blood found

on walls and a sofa probably g ot there from a wound gushing blood” or wa s d ep o s i t ed “whe n the body thrashed around, [and] the blood flew to the walls and sofa” ). Acc ording ly , the trial court did
not abuse i ts discretion by admitting Rang er Bobo’ s testimony about blood spatter. We overr ule Preston’s fifth issue.

Issues Si x and S even: N o abus e of di scre tion in adm ission of tw o autopsy p hotographs

I n her six th and seventh issues, Preston con t en d s t h at the district court abused its discretion by admitting E x h i bits 132 and 133, two of the nine 8 x 10 color photogr aphs that wer e authenticated by the medical examiner and that depict Her nandez’s head, fac e, and unclothed upper body

. Preston contends that the photogr aphs wer e cumulative and that they wer e more prejudicia l than proba tive under Te x as Rule of Evidenc e 403.

Rule 403 require s that a photogr aph have some probative value and that its probative value not be substantially outweig hed by a dang er of unfair prejudice

. Tex. R. Evid. 403; W illiams

v. State , 301 S

. W .3d 675, 690 (Tex. Crim. App. 2009). Rule 403 favor s admission of rele vant evidenc e and car

ries a presumption that rele vant evidenc e will be more probative than prejudicia l. Shuffield v. State , 189 S.W .3d 782, 787 (Tex. Crim. Ap p . 2 0 0 6 ). A court may consider various
35fac to rs i n deter mining whether the probative value of photogr aphic evidence is outweig hed by its prejudicia l eff

ect, including the number of exhibi ts offe red, their g ruesomene ss, their detail, their siz e, whether they ar e in color or black- and-w hite, whether they are close-up, whether the body depicted is clothed or naked, the availability of other means of proof, and other circ umstances unique
to the individual case . W illiams , 301 S.W .3d at 690. Admiss i b i l i t y of photogr aphs is within the sound discretion of the trial judge , and we will n o t disturb the trial court’s decision unless it falls outside the zone of rea sonable disag ree ment. Y oung v. State , 283 S.W .3d 854, 874–75 (Tex. Crim. App. 2009). Autopsy photogr aphs are g ener ally admissible unless they depict mutilation o f the victim c aused by the autopsy itself. Rojas v. State , 986 S.W .2d 241, 249 (Tex. Crim. App. 1998); Santellan v. State , 939 S.W .2d 155, 172 (Tex. Crim. App. 1997).

Her e, the complained- of photogr aphs did not depict mutilation of Her nandez cause d by the autopsy

itself. Fur

ther, both photog raphs he lped t o explain and support witness testimony , and they wer e not cumulative a s they showed diff

ere nt ang les and pe rspec tives of the injuries that Preston inflicted on Her

nandez. Dr. Chundru, the m edica l examiner who conduc ted Her nandez’s autopsy , testified that Exhi bit 133 provided a comprehe nsive view of H erna ndez’s entire f

ace and his injury

. Dr. Chundru noted that Her nandez’s bloated appea

ranc e, as depicted in this photo, was

a s i gn o f the body ’s decomposition, which was acc eler ated due to the heat of being burned. Additionally , Dr. Chundru stated that he ex am i n ed all of Her nandez’s external body for signs of assault or strug g le, and that he looked for any defe nsive wounds but found none. Ex hibit 132 provided a view of Her

nandez’s chest from mid-abdomen up and the burn marks on it—ill ustrating Rang er Bobo’ s testimony that the burns to Her nandez’s body wer e “plain and obvious”—which no

36other photogr aph in evidenc e depicted. Moreove r, this photogr aph does not show any bruise or mark

indicating that Her

nandez sustained a kick to the middle of his stomach, as Preston testified she had done. Even if the photogr aphs wer e “disturbing ,” as Preston contends, the Co u rt of Criminal Appea ls has conclude d that a trial court does not abuse its dis cr et i o n s i mply by admitting into evidenc e a photogr aph that is g ruesome or disag ree able to view. Sonnier v. State , 913 S.W .2d 511, 519 (Tex. Crim. App. 1 9 9 5) (noting t hat although phot og raphs of victims’ bodies wer e grue some

or “disag ree able to look at,” they depicte d “n othing more than the rea lity of the brutal crime committed” and “whe n the power of the visible evidenc e emanates from nothing more than what the defe ndant h as h i m s el f done we cannot hold that the trial court has abused its discretion mere ly beca use it admitted the evidenc e”)

.

Rely ing on Erazo v. State , Presto n co ntends that these two photogr aphs “had littl e probative value in rela tion to the offe nse ch ar ged” beca use it was undisputed that she cause d Her nandez’s death. See 144 S.W .3d 487 (Tex. Crim. App. 2004). Howeve r, contra ry to Preston’s contention, Erazo supports the admission of these autopsy photogr aphs. I n Erazo , the court held that

an autopsy photogr ap h s h o uld have been excluded beca use it depicted a fetus whose death the defe ndant was not on trial for, not the actua l victim. Id

. at 494. Her e, the autopsy photogr aphs wer e of Her nandez, the person Preston wa s on trial for murdering

. Fur ther, Erazo noted that the admission of autopsy photogr aphs in other ca s es proper ly “aid[ed] the jury in understanding the medical examiner’s testimony about the victim’s wounds” and wer e helpful “bec ause they showed wounds suffe red by the victim (or victims) for whose death the de fenda nts were on trial.” Id .; see also Theisen v. State , No. 04-13-0 0 6 37-CR, 2014 Tex. App. L EXI S 11128, at *8–9 (Tex.

37App.—San Antonio Oct. 8, 2014, pet. ref ’d) (mem. op., not desig nated for publication) (conc luding that Erazo neg ated defe ndant’s arg ument that autopsy photogr ap h o f v i cti m should have been excluded). Preston failed to show that the di strict court’s decis i o n t o admit these photogra phs into evidenc e was outside the zone of rea sonable disag ree ment, an d we co n clude that the court did not abuse its discretion by deter mining that the probativ e v al ue of the photogr aphs was not substantially outweig hed by a dang er of unfair prejudice

. Preston’s si x th and seventh issues

are overr uled.

CONCLUSION We affir m the district court’s judg ment of convic tion.

J eff Rose, Chief J ustice Be fore Chief J ustice Rose, Jus tices F ield and B ourland Affir med Filed: Jul y

18, 2018 Do Not Publish

38