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### MEM ORA ND UM OP INION No
. 04 -0 7- 00 56 5- CR Jef fr e y Mic ha e l THOM P SON , Appellant
v . T h e STA TE of

Te xas, Appellee Fr om the 216th J udicial District Court, Ba ndera County , Texas Trial Court No. 4645 Honora ble Stephen B . Ables, Judge Pre siding Opinion by : Catherine Stone, Justi ce Sitt ing: Alma L . L ópez, Chief J ustice

Catherine Stone, Justi ce Sandee B ry an Mar ion, J ustice Deliver ed and F iled: October 15, 2008 AFF I RMED J eff rey Michae l T hompson was convicte d of the off ense of injury to a child and wa s sent en ce d t o 8 0 y ear s confineme nt by a jury . On appe al, Thompson contends: (1) the trial cour t
err ed by allowing a witness t o t es t i fy whi le holding the injured child duringthe g uilt-innocence phase of the trial; and (2) the St at e eng ag ed in improper c losing a rg ument during the punishment phase. We a ffirm the tria l court’s judg ment.04
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1 ... T h o m p so n ’s ap p e llate a rg u m e n t f o c u se s o n the in

ju rie s to th e v ic tim , D .O ., b u t ad d re sse s the issu e o f “vic tim i m p act t est i m o ny ”, how ever “ [v] i ct i m i m p act evi d ence i s evi d ence o f t he ef f ect o f an o f

f ense o n p eo p l e o t her t han t he vi ct i m. ” R o b e rts v . S ta te , 22 0 S.W
. 3 d 52 1 , 53 1 (T ex. C ri m . A p p . 20 0 7 ).

- 2- F ACT UAL AND P R OC EDU R A L B ACKG ROUND Thompson lived in a rec reational vehicle with his g irlfriend Delane and two of he r childre n. One of Delane ’s childre n, D.O., wa s a little more than five months ol d at t h e t i m e h e wa s injured after beingleft alone with Thompson. On May 23, 2005, D.O. suff

ere d sever e hea d trauma, including skull fr actur es on the ba ck and side of his head, br uising on his fa ce and ear, seve re bleedingin his brain, and re tinal hemorrha g es in both ey es. Dr. J ames Anderst, an ex pert in abusive trauma t o children, testified that the i njuries wer e too nume ro us and too sp re a d ou t aro un d D. O. ’s he a d to have be e n a c c ide nta lly c a us e d. Dr . A nd e rs t explained that the injuries wer e not consistent with any of the t h re e ex planations Thompson g ave in statements to police, i.e., (1) D.O. had f allen fr om the bed; (2) Thompson had fallen while holding D.O.; and ( 3) Thompson tossed D.O. on the be d and D.O. bounc ed onto the metal fra me of the be d. Delane also testified about an injury D.O. suffe red on May 1, 2005 twenty -two day s befor e the injury at issue, also while D.O . was in Thompson’s care. A t that time, Thompson tol d Delane that D.O. had f

allen fr om the bed. S HO W I N G TH E V IC T IM ’ S I N JUR I ES TO TH E J URY Thompson contends he is entitled to a new tria l beca use the trial c ourt err ed by permitting Delane to hold D.O. while she te s t i fi ed during the guilt-innocence phase of the trial. Thompson contends that display i ng D.O.’s se vere ly debilitated condition to the jury while testifying a

bout D.O.’s c urre nt condition was unfair ly prejudicia l, unnece ssarily inflamed the minds of the jury , and was irr eleva

n t t o t h e ce n tral issue of guilt or innocence
. 1 Thompson contends that Dr. A nderst’s04
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- 3- testimony was sufficie nt to prove D.O.’s injuries and that the pr obative value of allowing the jury to see D.O . was outwe ighe d by the dang er of

unfair pr ejudice. We r eview the trial court’s de cision to admit evidence under a n abuse of discretion standard, a nd we will re verse only

if we de termine the trial court ’s d ec i s ion was ar bitrary and unre asonable
. State v. Me chler , 153 S.W .3d 435, 439 (T e x. Cr im. Ap p. 20 05 ); Re se nd iz v . S tat e , 112 S.W .3d 541, 546 (Tex. Crim. App. 2003). Th e Te xas R

ule s o f E vid e nc e pr ov ide tha t r e le va nt e vid e nc e may be ex clu ded if “ its proba t i v e v al u e is substantially outweig hed by

the dang er of

unfair pr ejudice, c onfusion of the issues, misleading t h e j u ry , or by considerations of undue delay , or nee dless prese ntation of cumulative evide nce.” T EX . R. E V ID . 403. “Rule 403 favors the admission of re levant evide nce a nd
car ries a presumption that rele vant evidenc e will be more probative than prejudicia l.” J on es v . S tat e , 944 S.W .2d 64 2 , 6 52 (Tex. Crim. App. 1996). Consequently , “Rule 403 re quires exclusion of evid en ce o n l y wh en ther e exists a clear disparity betwee n the deg ree of pre judice of the offe red evidenc e and its probative value.” Id. Al tho ug h T ho mps on

a c kn ow le dg e s th a t e vid e nc e re la tin g to D. O. ’s inj ur ie s wa s re le va nt t o establishing the offe nse of injury to a child, he none theless ar g ues that the testimony the jury hear d from Dr
. Ander st was more than suffic ient to prove D.O .’s injuries to the jury . Howeve r, we cannot say a cle ar dispar ity

exis ts betwee n the deg ree of pre judice the live display had on Thompson and the display ’s probative value to the jury
. The jury hear d testimony during trial that D.O. shoul d have
rea ched the developmenta l stag e of a 2.5 y ear o l d ch i l d by

the time of trial, and that D.O. had not develope d n o r

ma ll y d u e to th e in

ju r ie s h e s u s ta in e d

f r o m T h o mp s o n . A v is u a l d e p ic ti o no f D
. O. allowed the jury to obse rve D.O.’s phy sical condition a nd see how D.O. had not d ev el o ped
norma ll y . T h e v is u a l d is p la y o f D
. O th

u s e n a b le d th e ju

r y to p a s s u

p o n th e s e r io u s n e s s o f

D.O.’s04
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- 4- i n j u r i e s . W h i l e t h e v i s u a l d e p i c t i o no f D
. O
. m ay h a v e i n c i d e n t a l l y ar o u s e d t h e p a s s i o n o f t h e j u r y,
w e h o ld th e li v e d is p la

y o f D
. O
. w a s n o t u n f

a ir ly p r e ju d ic ia l to Thompson. See ge ne ra lly Cha mb e rla in v . S

tat e , 998 S.W .2d 230, 237 (Tex. Crim. App. 1999) (holding the trial court did not
err in admitting g ruesome c rime sce ne photos, that depicted nothing outside of what wa s included in the testimony

of the witnesses, beca

use the photos wer e not unduly prejudicia l to the defe ndant). Th e tr ia l c ourt

the re fo re did

no t a bu se its dis c re tio n in

a llo wi ngthe jur

y to v ie w D .O . at tr ia l. J URY A RGUMENT Th omp so n c on te nd s th a t th e State e ng a g e d in imp ro pe r j ur

y argume nt at th e pe na lty

ph a se by alluding to the Ma

y 1st injury

to argue that Thompson had pr eviously injured D.O. Thompson ob je c te d a nd wa s o ve rr

ule d thre e tim e s d

ur ingthe State ’s arg

ume nts
. Jury argume nt i s a pp ro pr ia te if it falls within one of the foll owing : (1) a summation of t he evidence; ( 2) a r easona ble deduc tion from the e vidence ; (3) an a nswer to a

rg ument of opposing counsel; an d (4 ) a plea for law enfor ceme nt. W

esb ro ok v . S tat e , 2 9 S. W. 3 d

1 0 3 , 1 1 5 ( T e x. Cr im
. A p p . 2 0 0 0 )
. E v e nw h en argument exceeds these permissible bounds it is not reve rsible error unless, in l ight of the re cord a s a whole, the argument is extreme or m anife stly improper, violates a mandatory statute, or injects ne w fac ts harmful to the ac cused into the trial pr ocee ding. Id. Thompson argues on appe al there was no e videnc e t o s u p p ort the State’s c ontention that Thompson had pre viously injured D.O. The record, however , contra dicts Thompson’s contention. During cross-e x amination by Thompson’s attorney , Delane was asked about three hospital visit s for D.O. in the month prec eding the May 23rd injury

to D.O. Delane testified that D.O . was injured on May 1st while he had be en lef t in Thompson’s care . She s aid Thompson claimed that D.O . had fallen f rom the bed. She te stified that D.O. had a larg e knot on his head, and t hat for the next three04
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- 5- wee ks, D.O. wa s fussy

and unable to hold down food. Dr. Ande rst revie wed D.O .’s medical r ecor ds from the Ma

y 1st injury

and testified that the Ma y 1st injury

was c onsisten t wi t h ab usive hea d trauma, a lthough he acknow ledg ed that it could have been acc idental t rauma as well. This evidence of the May 1s t inj ur

y pr ov ide d a su ff

ic ie nt ba sis fo r the pr os e c uto r to argue, as a reason a ble deduction of the evidenc e, that Thompson had pr eviously injured D.O. See id. C ONCL US I ON The judg ment of the trial c ourt is affir med.
Catherine Stone, Justi ce

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