NO. 03-15-00328-CR

IN THE COURT OF APPEALS FOR

THE THIRD COURT OF APPEALS DISTRICT

AUSTIN, TEXAS

APPELLANT’S BRIEF

On Appeal from the 264th District Court 

of Bell County, Texas,

Trial Court Cause No. 72,334

E. Alan Bennett 

State Bar #02140700

Counsel for Appellant

Sheehy, Lovelace & Mayfield, P.C.

510 N. Valley Mills Dr., Ste. 500

Waco, Texas 76710

Telephone: (254) 772-8022

Telecopier: (254) 772-9297

Email: abennett@slmpc.com

DANIEL LORENZO WILSON, 

Appellant

v. 

THE STATE OF TEXAS,

Appellee

ACCEPTED

03-15-00328-cr

6619835

THIRD COURT OF APPEALS

AUSTIN, TEXAS

8/24/2015 12:15:52 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 8/24/2015 12:15:52 PM JEFFREY D. KYLE Clerk
Appellant’s Brief Page 2

Identity of Parties and Counsel

Appellant, pursuant to Rule of Appellate Procedure 38.1(a), provides 

the following list of all parties to the trial court’s judgment and the names 

and addresses of all trial and appellate counsel.

Daniel Lorenzo Wilson

Steven Streigler

P.O. Box 1683

Belton, TX 76513

E. Alan Bennett

510 North Valley Mills Dr., Ste. 500

Waco, Texas 76710

Michael Waldman

Assistant District Attorney

Bob D. Odom

Assistant District Attorney

Bell County District Attorney’s Office

P.O. Box 540

Belton, Texas 76513

Appellant

Trial Counsel for Appellant

Appellate Counsel for Appellant

Trial Counsel for the State

Appellate Counsel for the State
Appellant’s Brief Page 3

Table of Contents

Identity of Parties and Counsel.............................................................................2

Table of Contents ....................................................................................................3

Index of Authorities................................................................................................4

Statement of the Case .............................................................................................6

Statement Regarding Oral Argument..................................................................6

Issues Presented ......................................................................................................6

Statement of Facts ...................................................................................................7

Summary of the Argument..................................................................................18

Argument ...............................................................................................................19

First Issue: The trial court abused its discretion by admitting 

photographs from the crime scene that were unfairly prejudicial.............19

A. This Court Reviews Evidentiary Rulings for an Abuse of Discretion

...........................................................................................................................19

B. Unfairly Prejudicial Evidence May Be Inadmissible............................20

C. The State Offered Unnecessary & Unfairly Prejudicial Photographs

...........................................................................................................................21

D. Under Erazo, the Photographs Should Not Have Been Admitted ....23

E. The Error Affected Wilson’s Substantial Rights ...................................29

Prayer......................................................................................................................33

Certificate of Compliance ....................................................................................34

Certificate of Service .............................................................................................34
Appellant’s Brief Page 4

Index of Authorities

Texas Cases

Aviles v. State, No. 05-07-00477-CR, 2008 WL 1850779 (Tex. App.—Dallas 

Apr. 28, 2008, pet. ref’d) (mem. op., not designated for publication).... 28, 29

Brown v. State, 875 S.W.2d 38 (Tex. App.—Austin 1994, no pet.) ..................23

Burnett v. State, 88 S.W.3d 633 (Tex. Crim. App. 2002)............................. 30, 31

Chamberlain v. State, 998 S.W.2d 230 (Tex. Crim. App. 1999)..........................28

Craig v. State, 347 S.W.2d 255 (Tex. Crim. App. 1961) .............................. 27, 28

Davis v. State, No. 03-07-00305-CR, 2008 WL 3877696 (Tex. App.—Austin 

Aug. 20, 2008, pet. ref’d) (mem. op., not designated for publication) ..........21

Erazo v. State, 144 S.W.3d 487 (Tex. Crim. App. 2004).................. 21, 24, 26, 27

Fuelberg v. State, 447 S.W.3d 304 (Tex. App.—Austin 2014, pet. ref’d) .........20

Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007)......................... 19, 20, 21

Haley v. State, 173 S.W.3d 510 (Tex. Crim. App. 2005).....................................30

Miller-El v. State, 782 S.W.2d 892 (Tex. Crim. App. 1990) ........................ 23, 26

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) (op. on reh’g)

........................................................................................................................... 21, 26

Narvaiz v. State, 840 S.W.2d 415 (Tex. Crim. App. 1992) .................................21

Reese v. State, 33 S.W.3d 238 (Tex. Crim. App. 2000)..................... 24, 26, 27, 29

Sandoval v. State, 409 S.W.3d 259 (Tex. App.—Austin 2013, no pet.) ..... 29, 30

Shuffield v. State, 189 S.W.3d 782 (Tex. Crim. App. 2006)................................20

State v. Davis, 349 S.W.3d 535 (Tex. Crim. App. 2011).....................................32
Appellant’s Brief Page 5

Terrazas v. State, No. 03-05-00344-CR, 2006 WL 2080381 (Tex. App.—Austin 

July 28, 2006, pet. ref’d) (mem. op., not designated for publication)............21

Threadgill v. State, 146 S.W.3d 654 (Tex. Crim. App. 2004)..............................20

Texas Statutes

TEX. CODE CRIM. PROC. art. 37.07, § 3(a)(1).........................................................23

TEX. CODE CRIM. PROC. art. 44.29(b)....................................................................32

TEX. PEN. CODE § 19.02(b)(1) ..................................................................................6

Rules

TEX. R. APP. P. 43.2(d) ...........................................................................................32

TEX. R. APP. P. 44.2.......................................................................................... 29, 30

TEX. R. EVID. 403.....................................................................................................20
Appellant’s Brief Page 6 

Statement of the Case

Daniel Lorenzo Wilson pleaded guilty to murder without the benefit 

of a plea bargain. (CR 15-22), (2 RR 7). See TEX. PEN. CODE § 19.02(b)(1). The 

Honorable Martha J. Trudo, presiding judge of the 264th District Court of 

Bell County, assessed his punishment at life imprisonment. (CR 25-26), (3 

RR 175). Wilson timely filed his notice of appeal. (CR 29).

Statement Regarding Oral Argument

Oral argument will not aid the Court’s decisional process in this 

appeal.

Issues Presented

First Issue: The trial court abused its discretion by admitting 

photographs from the crime scene that were unfairly 

prejudicial. 
Appellant’s Brief Page 7

Statement of Facts

The indictment alleges that on or about December 9, 2013, Wilson

“did then and there intentionally and knowingly cause the death of an 

individual, namely, Karen Edwards, by shooting her with a firearm and 

stabbing and cutting the said Karen Edwards with a knife.” (CR 4).

Wilson pleaded “guilty” to the murder charge.1 (2 RR 7). The trial 

court rescheduled the case for a sentencing hearing. (2 RR 9).

Janet Allman works for the Bell County Communications Center 

which handles 9-1-1 calls and dispatches emergency responders. (3 RR 7-8).

The call center received a 9-1-1 call on the morning of December 9, 2013 at 

about 5:21. (3 RR 9) Allman identified a recording of that call which was 

admitted as State’s Exhibit 1. (3 RR 10) The caller reported that she had 

been held hostage and had seen her friend murdered. The shooter shot her 

in the leg, stomach and head. He held a gun to the caller’s head as well. 

The caller stated that he was drunk and passed out. She took the gun from 

 

1 Wilson also pleaded “true” to allegations in a motion to adjudicate his deferred 

adjudication community supervision for possession of less than 1 gram of cocaine, a 

state jail felony. (2 RR 4-7). The trial court adjudicated his guilt and sentenced him to 2 

years’ confinement in a state jail. (3 RR 174). Wilson did not appeal from this judgment.
Appellant’s Brief Page 8

him and ran away. She gave the address for his apartment. She urged the 

operator to tell the officers to turn off their sirens that she heard 

approaching because she feared they would awaken the shooter. She 

identified the shooter as Daniel Wilson. Officers arrived as she talked to the 

operator. (SX 1)

Latasha Brown is the person who called 9-1-1. She recently relocated 

to Dallas County so she could “get myself together mentally.” (3 RR 12). 

She moved to Killeen near the end of 2012 after being paroled on her 

sentence for burglary of a habitation. (3 RR 12-13). She had a few jobs 

including a part-time job at a tire shop where she worked with Wilson. (3 

RR 13-14). She identified Wilson and Karen Edwards as being part of the 

group of friends that she routinely spent time with at that time. (3 RR 14). 

She identified Wilson as “a local drug dealer” and “a very cool person to 

hang out with.” “He was a very giving individual.” They barbecued, 

watched movies and went out. She spent more time with Wilson than 

anyone else. (3 RR 15). Brown had a cocaine habit in 2013 and used daily. 

Wilson was one of her main suppliers. (3 RR 16).

Brown met Karen Edwards through Brown’s girlfriend Cynthia 

Anderson. (3 RR 12, 16-17). Edwards had been friends with Anderson’s 
Appellant’s Brief Page 9

mother who passed away in 2012. Anderson referred to Edwards as Aunt 

Karen or Momma Karen or some similar term of endearment. Their 

families had known each other for a long time. (3 RR 16-17). Edwards lived 

two doors down from Wilson in the same apartment complex. Brown 

understood that “they had dated years before.” (3 RR 18). As far as Brown 

could see, Edwards and Wilson saw each other on a regular basis and “got 

along great.” Edwards “smoked crack cocaine” and prostituted herself or 

hustled money to support herself. Wilson “always helped her” when she 

needed money or anything. “Always.” He helped her with her rent several 

times. (3 RR 19).

Brown went to check on Wilson about every other day in late 2013 

because he had been injured when a car struck him while riding a bicycle. 

(3 RR 17). In December 2013, Brown and Anderson had several arguments. 

Brown stayed at Wilson’s house nearly the entire weekend of December 11. 

“We watched movies, drank beers, smoked cigarettes, ordered pizza. I was 

just hanging out. He was my escape from arguing and fighting and stuff 

like that.” Wilson lived less than a half mile from Brown and Anderson. (3 

RR 20). That Friday night, Brown testified that she was using drugs 

(cocaine) but Wilson was not. She got the cocaine from him though. (3 RR 
Appellant’s Brief Page 10

21). She walked home around midnight and awoke around noon on 

Saturday. Issues still remained with Anderson so she went back to Wilson’s 

house that afternoon and they did the same things they had done the night 

before. (3 RR 22). She went home Saturday night and returned Sunday 

afternoon around 2:00 or 3:00. They played video games; she went to the 

store (with Wilson’s money) for beer and cigarettes; and Wilson ordered 

pizza. (3 RR 23). 

Karen Edwards came over to Wilson’s house around 11:30 that 

Sunday night.2 Brown was about to leave to go home. Wilson was in the 

bathroom. Edwards came inside and sat on the couch. (3 RR 24). Wilson 

came into the living room, and Brown headed to the bathroom. Wilson sat 

down next to Edwards, and they started talking. (3 RR 25). As Brown was 

closing the bathroom door, she heard a gunshot. (3 RR 25-26). She knew 

that Wilson had a gun because she had seen him cleaning it before. He kept 

it in a drop-down compartment in his sectional sofa. (3 RR 26). Brown 

never heard Wilson raise his voice. When Edwards had asked him for a 

cigarette, he told her that he did not have any. Then she asked for money to 

 

2 Wilson kept the key to Edwards’s apartment so she would not lose it. She 

typically came by at night to let him know she was home and get her key. (3 RR 24).
Appellant’s Brief Page 11

buy a pack. She thought Wilson was joking around with Edwards. Then, 

she heard the shot, and Karen started screaming. “And the person that I 

saw was not Mr. Wilson. It couldn’t have been.” “I never seen him like 

that.” (3 RR 27). She explained that his eyes turned red and he had “a blank 

stare almost like it wasn’t him.” (3 RR 29). “[H]e was infuriated.” (3 RR 30).

Brown walked back to the living room and saw Wilson sitting on the 

sofa holding his gun. Edwards was holding her leg where it appeared to 

Brown that she had been shot. (3 RR 28). Edwards asked Wilson to just let 

her go, and she promised not to tell anyone what he had done. Brown 

joined in and asked him to let her take Edwards home. (3 RR 30). Wilson 

told them, “I know you won’t say anything because you’re not leaving.” 

Then he started “rambling and mumbling under his breath.” (3 RR 31). He 

went and got a towel or rag and they tried to tie it around Edwards’s leg to 

stop the bleeding. (3 RR 31-32).

And she just really kept screaming, just screaming like yelling, 

“Daniel, you shot me, you shot me. Daniel, you shot me. Oh my 

god, I can't believe you shot me.” And he's, “you shut up,” you 

know, be whatever, you know, be quiet, “I can't think. Just shut 

up,” you know, telling her to shut up. She continues screaming 

and once she kind of calms down a little bit, and he's standing 

there just like, you know, “I love you,” right? You know, he got 

calm. And I didn't understand that.
Appellant’s Brief Page 12

(3 RR 32).

After Wilson “got calm,” he shot Edwards in the stomach. This was 

about thirty minutes after he shot her in the leg. (3 RR 32). Wilson was 

standing over Edwards as she sat on the sofa when he shot her the second 

time. He also unleashed a string of obscenities and told Edwards, “[Y]ou’re 

going to learn to stop playing with me.” (3 RR 33). At that time, Edwards 

“begged for her life, she wanted to call her kids, she wanted to talk to her 

momma one last time.” Brown “ran and got in the shower [and] nervously 

smoked a cigarette.” Then she heard a thump and Edwards screaming 

something to the effect “it’s leaving out of me, my life is leaving.” (3 RR 

34). Brown was scared and did not know what to do. Then she saw 

Edwards sliding backward across the floor to the bathroom door. (3 RR 35). 

Brown tried to get her attention so they could jump out of a window and 

escape. (3 RR 35-36).

And she's like, no, he's going to kill me if I try that. And I knew 

she couldn't walk, she had been shot in her leg. So I'm just like 

slide in here and we'll lock the door and I'll put you out the 

window. We'll go out the window and we'll make it out here 

and she's like no. She's crying. And it's a bit chaotic.

Wilson was still standing in the living room holding the gun. (3 RR 

36). “He started waving it,” and Edwards screamed every time he raised 
Appellant’s Brief Page 13

the gun. Brown thought he was taunting her. Wilson was saying, “I should 

kill you right now.” Edwards begged him to let her call her children and 

say goodbye before he killed her. Brown stepped out of the shower and 

tried to pick Edwards up, but she was too heavy. (3 RR 37-38). “Wilson got 

a little upset.” He picked Edwards up and tossed her aside like a sack of 

potatoes. (3 RR 38). “He told her to pray to her maker, and he shot her in 

the head, and she was still breathing. So he took a flashlight and smashed 

her face.” More than an hour passed between the time when he shot her in 

the stomach and when he shot her in the head. (3 RR 39). Apparently, 

Wilson struck her repeatedly with the flashlight because she was still 

breathing. (3 RR 39-40). Brown saw “chunks of brain matter, skin flying 

everywhere.” (3 RR 41-42). Then, because it appeared she was still 

breathing, Wilson threw her down and stepped on her neck. “[H]e grabbed 

a sword off of the table and just started chopping downwards.” (3 RR 42).

Wilson opened the door and told Brown that she would help him 

dispose of the body or she would be next. He pointed his gun at her and 

pulled the trigger, but there were no bullets left in it. (3 RR 43). They 

moved the body to the front porch. (3 RR 44-45). They tried to carry it 

across the street but Brown kept dropping it because it was so heavy. Then 
Appellant’s Brief Page 14

they grabbed Edwards’s legs and dragged her body behind a vacant house. 

(3 RR 45-46)

Wilson ordered Brown back in his house. He told her to help him 

clean up the mess. He took off his clothes and told her to put them in a 

plastic bag. Brown asked to borrow a phone so she could get a ride to a 

store for some bleach to clean up. (3 RR 46). After that, they drank beers 

and smoked cigarettes. He gave her $5.00 for bleach and let her call a 

friend. She grabbed his gun and left. She testified that she “was high out of 

my mind that night.” (3 RR 47). She met her friend and went to another 

friend’s house. They smoked cigarettes, drank alcoholic beverages, smoked 

marijuana and used cocaine. (3 RR 48). Then, Brown changed clothes and 

put the clothes she had been wearing in a plastic bag because they still had 

“brain matter and blood” on them. (3 RR 48-49). She drank some more 

before a friend convinced her to call the police, which she did. (3 RR 49).

Over objection, the State offered eighteen photographs in evidence 

from the crime scene. (3 RR 50-62). Brown concluded that this was totally 

out of character for Wilson and she had never him act anything like that 

before. (3 RR 63-64). She still has no idea why he got so upset that night. (3 

RR 68). He was “inebriated . . . but not drunk.” (3 RR 71).
Appellant’s Brief Page 15

Doctor Emily Ogden is a medical examiner with the Southwestern 

Institute of Forensic Sciences in Dallas. (3 RR 82), (SX 2). She performed the 

Edwards autopsy. (3 RR 84). The autopsy revealed a series of injuries 

consistent with those described by Brown. (3 RR 85-92), (SX 2). Toxicology 

results indicated the presence of ethanol, cocaine and marijuana in her 

system. (3 RR 92-93), (SX 2).

Killeen Police Detective Rodney Wilmore responded to Wilson’s 

apartment as the crisis negotiator with the tactical response unit. (3 RR 99). 

Wilson ultimately surrendered to the authorities without incident. (3 RR 

101) Wilmore served as the lead investigator for the case. He described the 

crime scene and additional photographs and diagrams were admitted 

through him without objection. He agreed that Wilson cooperated with the 

responding officers. (3 RR 116).

Psychologist Dr. Stephen Thorpe testified for the defense. He 

performed a clinical interview of Wilson and conducted a battery of 

psychological tests. (3 RR 121-22). He opined that Wilson has an IQ of 76 

which places him in the “borderline range of intelligence.” On the 

achievement test, Wilson demonstrated a fifth or sixth grade level of 

reading and math which placed him somewhere in the range of an 11- to 
Appellant’s Brief Page 16

13-year-old. (3 RR 122). Dr. Thorpe determined that Wilson suffered from 

“some type of psychosis schizophrenia” characterized by “very bizarre 

hallucinations, delusional beliefs, paranoid ideation.” His history also 

indicated that he had experienced depression, anxiety and substance abuse 

issues. (3 RR 125). Dr. Thorpe was struck by the fact that Wilson had not 

been previously diagnosed or treated for his schizophrenia until he was 

arrested in this case. (3 RR 126). The treatment regimen has resulted in 

significant improvement for Wilson. (3 RR 126-27).

On cross-examination, Dr. Thorpe agreed that prior evaluations and 

reports had not detected any psychological or mental health issues for 

Wilson. (3 RR 139-40). He testified that long-term cocaine use “can have a 

significant impact organically on the brain.” Prolonged alcohol abuse can 

likewise have an adverse effect. (3 RR 140). Those effects could present 

themselves in a manner very similar to schizophrenia. (3 RR 140-41).

In closing arguments, the defense asked the trial court to take 

Wilson’s diagnosis and substance-abuse problems into account and assess 

a lesser punishment. (3 RR 165-69). The State asked for a life sentence. (3 

RR 173-74).
Appellant’s Brief Page 17

The trial court assessed Wilson’s punishment at life imprisonment. 

(CR 25-26), (3 RR 175).
Appellant’s Brief Page 18

Summary of the Argument

Latasha Brown testified in graphic detail regarding the manner in 

which Wilson carried out this offense. Nevertheless, the State also offered 

seven graphic photographs through Brown that depicted Edwards’s 

injuries or the implements Wilson used to inflict them. A few of these

focused on the bloodied results of Wilson’s conduct including “blood and 

skin and brain matter.” Because Wilson pleaded guilty and because Brown 

described the events leading to Edwards’s death in graphic detail, the 

admission of these photographs was unnecessary, and the probative value 

of these photographs was substantially outweighed by the danger of unfair 

prejudice. Thus, the court abused its discretion by admitting these 

photographs.
Appellant’s Brief Page 19

Argument

First Issue: The trial court abused its discretion by admitting 

photographs from the crime scene that were unfairly 

prejudicial. 

Latasha Brown testified in graphic detail regarding the manner in 

which Wilson carried out this offense. Nevertheless, the State also offered 

seven graphic photographs through Brown that depicted Edwards’s 

injuries or the implements Wilson used to inflict them. A few of these 

focused on the bloodied results of Wilson’s conduct including “blood and 

skin and brain matter.” Because Wilson pleaded guilty and because Brown 

described the events leading to Edwards’s death in graphic detail, the 

admission of these photographs was unnecessary, and the probative value 

of these photographs was substantially outweighed by the danger of unfair 

prejudice. Thus, the court abused its discretion by admitting these 

photographs. 

A. This Court Reviews Evidentiary Rulings for an Abuse of Discretion

Rulings on the admissibility of evidence are reviewed under an 

abuse-of-discretion standard. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. 
Appellant’s Brief Page 20

App. 2007); Fuelberg v. State, 447 S.W.3d 304, 315 (Tex. App.—Austin 2014, 

pet. ref’d).

A photograph is generally relevant and admissible if verbal 

testimony regarding what is depicted in the photograph is also admissible. 

See Threadgill v. State, 146 S.W.3d 654, 671 (Tex. Crim. App. 2004).

B. Unfairly Prejudicial Evidence May Be Inadmissible

Under Rule of Evidence 403 however, relevant evidence is 

inadmissible if the probative value of the evidence “is substantially 

outweighed by the danger of unfair prejudice, confusion of the issues, or 

misleading the jury, or by considerations of undue delay, waste of time, or 

needless presentation of cumulative evidence.” TEX. R. EVID. 403. Rule 403 

favors the admissibility of relevant evidence, and it is presumed that 

relevant evidence is more probative than prejudicial. Shuffield v. State, 189 

S.W.3d 782, 787 (Tex. Crim. App. 2006).

[A] proper Rule 403 analysis by either the trial court or a 

reviewing court includes, but is not limited to, the following 

factors: (1) the probative value of the evidence; (2) the potential 

to impress the jury in some irrational, yet indelible, way; (3) the 

time needed to develop the evidence; (4) the proponent’s need 

for the evidence. In the context of the admission of 

photographs, we also consider the factors set out in Narvaiz. 

Those factors include the number of photographs, the size, 
Appellant’s Brief Page 21

whether they are in color or are black and white, whether they 

are gruesome, whether any bodies are clothed or naked, and 

whether the body has been altered by autopsy.

Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004) (citing Narvaiz v. 

State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992); Montgomery v. State, 810 

S.W.2d 372, 389-90 (Tex. Crim. App. 1991) (op. on reh’g)) (footnotes 

omitted); see Davis v. State, No. 03-07-00305-CR, 2008 WL 3877696, at *5 

(Tex. App.—Austin Aug. 20, 2008, pet. ref’d) (mem. op., not designated for 

publication); Terrazas v. State, No. 03-05-00344-CR, 2006 WL 2080381, at *6

(Tex. App.—Austin July 28, 2006, pet. ref’d) (mem. op., not designated for 

publication). “The availability of other means of proof and the 

circumstances unique to each individual case must also be considered.” 

Gallo, 239 S.W.3d at 762.

C. The State Offered Unnecessary & Unfairly Prejudicial Photographs

Wilson objected to eighteen photographs that were admitted through 

Brown as sponsoring witness. This issue focuses on seven of these 

photographs.

Wilson objected to the admission of the following photographs:

1. State’s Exhibit 3 aerial view of neighborhood
Appellant’s Brief Page 22

2. State’s Exhibit 7 Edwards’s body in backyard

3. State’s Exhibit 8 closer view of body

4. State’s Exhibit 9 close-up of Edwards’s face and chest

5. State’s Exhibit 10 house and yard where body left and pathway 

from Wilson’s apartment

6. State’s Exhibit 11 Wilson’s apartment building

7. State’s Exhibit 13 bloodstains where Brown dropped the body

8. State’s Exhibit 14 pool of blood on sidewalk

9. State’s Exhibit 16 walkway to apartment

10. State’s Exhibit 20 Wilson’s and Edwards’s apartment doors

11. State’s Exhibit 21 view from Wilson’s door to house where body 

left

12. State’s Exhibit 22 close up of view in State’s Exhibit 21

13. State’s Exhibit 23 sectional sofa in Wilson’s apartment

14. State’s Exhibit 24 Wilson’s living room and entryway

15. State’s Exhibit 25 sword “used to chop up” Edwards’s body (3 

RR 61)

16. State’s Exhibit 31 flat-screen television with “blood and skin 

and brain matter” on it (3 RR 61)

17. State’s Exhibit 34 flashlight “used to smash Miss Edwards’ face 

in” (3 RR 61-62)
Appellant’s Brief Page 23

18. State’s Exhibit 35 close-up view of bloody flashlight

Wilson’s appellate complaint challenges the admission of State’s 

Exhibits 4, 7, 8 and 15-18.

D. Under Erazo, the Photographs Should Not Have Been Admitted

Probative Value

The challenged photographs do have probative value with regard to 

the extent of the injuries suffered by Edwards and the culpable mental state 

with which Wilson acted. However, because Wilson pleaded guilty, neither 

of these was contested.

Evidence of the “circumstances of the offense” is admissible during 

the punishment phase. TEX. CODE CRIM. PROC. art. 37.07, § 3(a)(1). The 

circumstances of the offense include the extent of a victim’s injuries “so 

long as a factfinder may rationally attribute moral culpability to the 

accused for that injury.” Miller-El v. State, 782 S.W.2d 892, 896 (Tex. Crim. 

App. 1990); Brown v. State, 875 S.W.2d 38, 40 (Tex. App.—Austin 1994, no

pet.).
Appellant’s Brief Page 24

Ability to Impress Factfinder in Irrational Manner

The nature of the photographs themselves is relevant to this issue. See 

Erazo, 144 S.W.3d at 494-95; Reese v. State, 33 S.W.3d 238, 242 (Tex. Crim. 

App. 2000).3 The challenged photographs are color photographs whose 

actual size is unclear from the record on file. Actually, however, they were 

much larger in the eyes of the trial court because they were projected on a 

screen.4 (3 RR 53).

State’s Exhibit 9 is a close-up of Edwards’s face and chest depicting 

dirt or some other substance on her face. This exhibit was completely 

unnecessary as her identity was not at issue and other photographs were 

admitted depicting the location and condition of her body.

State’s Exhibits 13 and 14 depict blood pooled on the sidewalk. These 

bloody photographs were completely unnecessary as Brown testified 

 

3 The photographs held unfairly prejudicial in Erazo and Reese were admitted 

during the punishment phase as were the photographs at issue in this appeal. See Erazo 

v. State, 144 S.W.3d 487, 488 (Tex. Crim. App. 2004); Reese v. State, 33 S.W.3d 238, 239 

(Tex. Crim. App. 2000).

4 The record is silent regarding the size of the screen, but it was assuredly much 

larger than the exhibits themselves. The record reflects that the lights were turned off to 

view the documents on screen, and both the prosecutor and Brown used a laser pointer 

on several occasions to identify certain details in the photographs depicted on the 

screen. (3 RR 53-60).
Appellant’s Brief Page 25

regarding how they dragged the body from Wilson’s apartment to the 

house across the street and the State offered other photographs depicting 

the path they took dragging the body and the place where they left the 

body.

State’s Exhibit 25 depicts the sword “used to chop up” Edwards’s 

body. (3 RR 61) The admission of this photograph was unnecessary as 

Brown graphically described Wilson’s actions with the sword.

State’s Exhibits 34 and 35 depict the bloodied flashlight Wilson “used 

to smash Miss Edwards’ face in.” Again, these exhibits were cumulative of 

Brown’s graphic testimony regarding Wilson’s actions that night.

Finally, State’s Exhibit 31 depicts Wilson’s flat-screen television 

covered with “blood and skin and brain matter.” (3 RR 61) This 

photograph is grossly prejudicial and, at best, marginally probative. It 

belies logic or common sense to say that the probative value of this 

photograph in particular is not substantially outweighed by the danger of 

unfair prejudice.

And collectively, the challenged photographs appealed to the trial 

judge’s emotions and encouraged her to make her punishment decision on 
Appellant’s Brief Page 26

an emotional basis without regard to the logical probative force of the 

evidence. See Erazo, 144 S.W.3d at 495; Reese, 33 S.W.3d at 242.

Time Needed to Develop Evidence

The State did not devote an inordinate amount of the trial to the 

admission of the complained-of photographs or the testimony describing 

them. Id..

The State’s Need for This Evidence

There are three questions that the reviewing court should 

answer when addressing this factor: “Does the proponent have 

other available evidence to establish the fact of consequence 

that the [photograph] is relevant to show? If so, how strong is 

that other evidence? And is the fact of consequence related to 

an issue that is in dispute?”

Erazo, 144 S.W.3d at 495-96 (quoting Montgomery, 810 S.W.2d at 390).

The relevant facts of consequence sought to be established by the 

photographs were Wilson’s culpable mental state and the extent of 

Edwards’s injuries. See Miller-El, 782 S.W.2d at 896. However, Wilson 

pleaded guilty, and the other unchallenged evidence unquestionably 

established the extent of Edwards’s injuries. Therefore, the complained-of 

photographs were offered as additional proof of undisputed issues. See 

Erazo, 144 S.W.3d at 496; Reese, 33 S.W.3d at 242.
Appellant’s Brief Page 27

Weighing the Factors

Considering (1) the graphic nature of the photographs and the 

emotional impact they doubtless had on the trial judge; (2) the fact that 

Wilson pleaded guilty to the offense; and (3) the State’s limited need to 

establish the undisputed facts regarding the extent of Edwards’s injuries or 

Wilson’s culpable mental state; the probative value of the challenged 

photographs was substantially outweighed by the danger of unfair 

prejudice. See Erazo, 144 S.W.3d at 496; Reese, 33 S.W.3d at 242-43. Although 

the photographs did have probative value and the State used a limited 

amount of time to introduce them in evidence, “these factors are not 

enough to overcome the prejudicial qualities of the photograph[s] and the 

State’s limited need for the photograph[s] in the context of the 

[undisputed] issues.” See Reese, 33 S.W.3d at 243.

Similar Cases

Counsel has located other decisions in which similar photographs 

were ruled admissible in the face of a Rule 403 (or similar) objection. These 

cases are all distinguishable.

In Craig v. State, 347 S.W.2d 255 (Tex. Crim. App. 1961), the trial court 

admitted four color photographs that “exhibited a gory scene created by 
Appellant’s Brief Page 28

blood and brain matter from the deceased’s wounds.”5 Id. at 261. The 

Court held that the photographs were not impermissibly “inflammatory 

and prejudicial” because they tended to refute the defense’s theory of the 

case that the victim’s death was accidental. See id. at 261-62. Craig is 

distinguishable from Wilson’s case because the cause of death was 

disputed.

In Chamberlain v. State, 998 S.W.2d 230 (Tex. Crim. App. 1999), the 

appellant complained about the admission of eight color photographs, one 

of which depicted “a close up of the victim’s face with brain matter 

extruded through the large wound on the side of the head.” Id. at 236-37. 

Chamberlain is distinguishable because the defendant in that case contested 

his guilt. Id. at 236-37.

Finally, in an unpublished memorandum opinion in Aviles v. State,

No. 05-07-00477-CR, 2008 WL 1850779 (Tex. App.—Dallas Apr. 28, 2008, 

pet. ref’d) (mem. op., not designated for publication), the appellant 

complained of the admission of four crime-scene photographs and seven 

 

5 This is how the Court of Criminal Appeals phrased Craig’s contention regarding 

what the photographs depicted. Craig v. State, 347 S.W.2d 255, 265-66 (Tex. Crim. App. 

1961).
Appellant’s Brief Page 29

autopsy photographs. Id. at *7. Two of the crime-scene photographs 

depicted “the street with blood, tire tracks, and a portion of brain matter.” 

Id. Two of the autopsy photographs provided a “graphic” depiction of the 

victim’s head injuries in which the “entire top of the head was split open” 

and the brain “expelled out of the head.” Id. at *8. Aviles is likewise 

distinguishable because the defendant contested his guilt.

Unlike, these cases, Wilson admitted his guilt and did not in any 

manner dispute the cause of death or the extent of Edwards’s injuries. 

Thus, these cases do not offer support for the admission of the complainedof photographs.

For the foregoing reasons, the trial court abused its discretion by 

admitting the challenged photographs in evidence.

E. The Error Affected Wilson’s Substantial Rights

This is non-constitutional error so harm is assessed under Rule of 

Appellate Procedure 44.2(b). See TEX. R. APP. P. 44.2(b); Reese, 33 S.W.3d at 

243; Sandoval v. State, 409 S.W.3d 259, 287 (Tex. App.—Austin 2013, no 

pet.). Rule 44.2(b) requires reversal if the error affected the defendant’s 
Appellant’s Brief Page 30

substantial rights. TEX. R. APP. P. 44.2(b). Wilson’s substantial rights were 

affected by the erroneous admission of these prejudicial photographs.

A substantial right is affected when the error had a substantial 

and injurious effect or influence in determining the jury’s 

verdict. In assessing the likelihood that the jury’s decision was 

adversely affected by the error, an appellate court should 

consider everything in the record, including any testimony or 

physical evidence admitted for the jury’s consideration, the 

nature of the evidence supporting the verdict, the character of 

the alleged error and how it might be considered in connection 

with other evidence in the case. The reviewing court may also 

consider the jury instructions, the State’s theory and any 

defensive theories, closing arguments, voir dire and whether 

the State emphasized the error.

Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005) (footnotes 

omitted); accord Sandoval, 409 S.W.3d at 287-88.

[I]f the reviewing court has “a grave doubt” that the result was 

free from the substantial influence of the error, then it must 

treat the error as if it did. “Grave doubt” means that “in the 

judge’s mind, the matter is so evenly balanced that he feels 

himself in virtual equipoise as to the harmlessness of the error.” 

Thus, “in cases of grave doubt as to harmlessness the petitioner 

must win.”

Burnett v. State, 88 S.W.3d 633, 637-38 (Tex. Crim. App. 2002) (quoting 

O’Neal v. McAninch, 513 U.S. 432, 435-37, 115 S. Ct. 992, 994-95, 130 L. Ed. 

2d 947 (1995) (other citations omitted); accord Sandoval, 409 S.W.3d at 288.
Appellant’s Brief Page 31

The State advised the trial court at the beginning of the sentencing 

phase that it would be relying on a number of exhibits. (3 RR 6).

The State relied primarily on photographs as its physical evidence. 

The other two significant pieces of physical evidence were the 9-1-1 

recording and the autopsy report. Notably, the 29 unchallenged 

photographs were rather innocuous in comparison to the 7 that form the 

basis of Wilson’s appellate complaint. These prejudicial photographs were 

projected before the trial judge on a large screen, thus magnifying their 

prejudicial effect. These photographs appealed to the trial judge’s emotions 

and encouraged her to improperly make her punishment decision on an 

emotional basis without regard to the logical probative force of the 

evidence.

The erroneously-admitted photographs were indelibly etched in the 

mind of the trial judge. After viewing these photographs, this Honorable 

Court will at best find itself “in virtual equipoise as to the harmlessness of 

the error.” See O’Neal, 513 U.S. at 435, 115 S. Ct. at 994; Burnett, 88 S.W.3d at 

637-38. If so, the Court must find, as Wilson contends, that the error 

affected his substantial rights. Id.
Appellant’s Brief Page 32

Summary

The trial court abused its discretion by admitting photographs in 

violation of Rule 403. This error cause Wilson to suffer harm. Therefore, the 

Court should reverse the judgment as to punishment and remand this 

cause for a new punishment trial. See TEX. CODE CRIM. PROC. art. 44.29(b);

TEX. R. APP. P. 43.2(d); State v. Davis, 349 S.W.3d 535, 540 (Tex. Crim. App. 

2011).
Appellant’s Brief Page 33

Prayer

WHEREFORE, PREMISES CONSIDERED, Appellant Daniel Lorenzo 

Wilson prays that the Court reverse the judgment and remand this cause to 

the trial court for further proceedings and grant such other and further 

relief to which he may show himself justly entitled.

Respectfully submitted,

 /s/ Alan Bennett

E. Alan Bennett

SBOT #02140700

Attorney for Appellant

Sheehy, Lovelace & Mayfield, P.C.

510 N. Valley Mills Dr., Ste. 500

Waco, Texas 76710

Telephone: (254) 772-8022

Fax: (254) 772-9297

Email: abennett@slmpc.com
Appellant’s Brief Page 34

Certificate of Compliance

The undersigned hereby certifies, pursuant to Rule of 

Appellate Procedure 9.4(i)(3), that this computer-generated brief 

contains 5,942 words. 

 /s/ Alan Bennett

E. Alan Bennett

Certificate of Service

The undersigned hereby certifies that a true and correct copy of this 

brief was electronically served to counsel for the State, Bob Odom, 

bob.odom@co.bell.tx.us, on August 24, 2015. 

 /s/ Alan Bennett

E. Alan Bennett