IN THE

TENTH COURT OF APPEALS

No. 10-07-00311-CR

MICHAEL DEWAYNE YOUNG,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 85th District Court

Brazos County, Texas

Trial Court No. 06-04154-CRF-85

MEMORANDUM OPINION

A jury convicted Michael Dewayne Young of murder and sentenced him to life 

in prison. In a single issue, Young argues that he was denied due process and due 

course of law because the State admitted multiple photographs into evidence that were 

more prejudicial than probative.

1 We affirm.

 

1 Although Young’s issue asserts due process and due course of law violations, his argument 

concerns the admissibility of the photographs under the Rules of Evidence.
Young v. State Page 2

STANDARD OF REVIEW

A trial court’s decision to admit or exclude evidence is reviewed for abuse of 

discretion. See Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996). Relevant 

evidence is admissible, unless its “probative value is substantially outweighed by the 

danger of unfair prejudice.” TEX. R. EVID. 403. The following factors are relevant to this 

determination: the number of exhibits offered, their gruesomeness, their detail, their 

size, whether they are black and white or color, whether they are close-up, and whether 

the body depicted is naked or clothed. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. 

App. 2007). “The availability of other means of proof and the circumstances unique to 

each individual case must also be considered.” Id. After evaluating these factors, we 

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

evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the 

time the proponent needs to develop the evidence; and (4) the proponent’s need for the 

evidence. Reese v. State, 33 S.W.3d 238, 240-41 (Tex. Crim. App. 2000).

ANALYSIS

Young was accused of murdering Mary Neeley by stabbing her with a knife 

forty-two times. During the attack on Neeley, he stabbed Maxie Taylor, Neeley’s 

boyfriend, twelve times. Young claimed self-defense. Over Young’s objections that the 

probative value was outweighed by its prejudicial effect, the trial court permitted the 

State to admit several photographs into evidence.
Young v. State Page 3

Family Photograph

During the testimony of Jordon King, Neeley’s neighbor, the State showed King 

a photograph of Neeley and her son and asked whether the photograph constituted “a 

fair and accurate depiction of what [Neeley] looked like back in May -- or April and 

May of 2006.” King responded affirmatively.

Young argues that this photograph was neither relevant nor probative, 

“intended to inflame the jury,” “designed to impress the jury in an irrational and 

indelible way,” and “sway[ed] the jury with the idea that Ms. Neeley’s son was another 

victim.” However, after the photograph was admitted, Taylor testified, without 

objection, that the photograph depicted Neeley and her son.

To preserve a complaint for appeal, a party must lodge a timely and specific 

objection and obtain an adverse ruling. See TEX. R. APP. P. 33.1(a); see also Tucker v. State, 

990 S.W.2d 261, 262 (Tex. Crim. App. 1999). The party must then either continue to 

object or “obtain a running objection.” Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim 

App. 2003). Young objected when the photograph was first admitted into evidence, but 

failed to object when Taylor testified about the photograph. Accordingly, he has failed 

to preserve his complaint for appellate review as to this photograph.

Crime Scene Photograph

Also during King’s testimony, the State admitted a photograph of Neeley’s 

clothed body lying face up on the floor in a room of her apartment. King testified that 

the photograph is “not a pretty picture,” but fairly and accurately depicts Neeley’s body 

as he saw it on the day of her murder. King had rolled Neeley onto her back, as 
Young v. State Page 4

instructed by the 911 dispatcher, to check for a pulse and perform CPR. He could not 

have performed CPR after seeing all the blood and Neeley’s head felt like a “glob” of 

“old Jello.” Officer Michael Kneese and Detective Steven Fry both testified that Neeley 

was lying on the floor when they arrived at the apartment.

In this close-up photograph, Neeley is covered with blood and cuts. Blood is also 

visible on various items in the room. Although the record contains a black and white 

copy of this photograph, the State attached a color photograph to its brief. Therefore, 

we presume the photograph was in color when presented to the jury. The photograph 

is about 8.5” x. 11” in size. It is the only photograph of Neeley at the crime scene.

The photograph is probative of both the manner of Neeley’s death and Young’s 

mental state, given that he argued self-defense. See Ramirez v. State, 815 S.W.2d 636, 647 

(Tex. Crim. App. 1991); see also Laca v. State, 893 S.W.2d 171, 180 (Tex. App.—El Paso 

1995, pet. ref’d). The State used very little time introducing the photograph. While 

gruesome, we cannot say that it has the potential to impress the jury in some irrational, 

but indelible way. It depicts “nothing more than the reality of the brutal crime 

committed” by Young. Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999). 

Autopsy Photographs

Using a diagram of Neeley’s wounds, forensic pathologist Dr. Patricia Moore, 

who conducted Neeley’s autopsy, testified that Neeley suffered a stab wound to her left 

frontal bone, left upper lip, mid to lower cheek, right upper neck, left side of the neck, 

and abrasions to the left side of her neck. The wound to the left side of Neeley’s neck 

penetrated the larnyx and the wound to the frontal bone actually entered the bone, both 
Young v. State Page 5

of which required a large amount of force. The wound to Neeley’s larnyx severed her 

vocal cords and airway, preventing her from shouting or screaming during the attack. 

When the knife entered between Neeley’s breasts, it struck her liver.

The State admitted three autopsy photographs, which Moore testified were 

accurate depictions from the autopsy. Photograph 19 is a close-up of Neeley lying 

unclothed and face up, from just below her breasts to just above the top of her head, on 

the autopsy table. A large gash is visible in her left shoulder. The wounds to Neeley’s 

left frontal bone, left upper lip, mid to lower cheek, right upper neck, and left side of the 

neck are all visible. Her right eye is open and her left eye is swollen shut. The wounds 

have all been cleaned. In the State’s brief, the photograph is about 8.5” x. 11” in size, 

but in the record, it is about 6” x 8” in size. The record does not contain any other 

autopsy photographs reflecting the totality of Neeley’s injuries, but does contain a 

close-up of the wound to her frontal bone, wound to her upper lip, wound beneath her 

breasts, and two close-ups of the wound that punctured her larnyx.

Photograph 21 is a close-up of the stab wound that entered Neeley’s larnyx. The 

wound has been cleaned. Photograph 21 constitutes one of two identical photographs 

depicting this injury. Photograph 23 depicts the puncture wound to Neeley’s liver. It 

constitutes one of two identical photographs of the actual liver. The record also 

contains a close-up of the cleaned entry wound on the outside of Neeley’s body. In the 

State’s brief, photographs 21 and 23 are both about 8.5” x. 11” in size, but in the record, 

they are approximately 6” x 8” in size. We presume that photographs 19, 21, and 23 

were each presented to the jury in color.
Young v. State Page 6

The record does not indicate a substantial amount of time required to develop 

this evidence. Although the record contains duplicates of photographs 21 and 23, the 

photographs are limited in number, the wounds are clean, and the photographs are not 

particularly gory. See Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997)

(“Although the two pictures of the gunshot wound to the shoulder may be somewhat 

duplicative, the wound is relatively clean and the pictures are not gory”). Moore’s 

description of Neeley’s specific wounds comprises approximately fourteen pages of the 

record.

Moreover, autopsy photographs are generally admissible, unless they depict the 

mutilation caused by the autopsy itself. Rayford v. State, 125 S.W.3d 521, 529 (Tex. Crim. 

App. 2003). The record indicates that the three photographs were necessary to assist 

Moore with explaining her testimony about Neeley’s stab wounds, especially given the 

fact that no one injury caused Neeley’s death. See Saldano v. State, 232 S.W.3d 77, 101-02 

(Tex. Crim. App. 2007). “Visual evidence accompanying testimony is most persuasive 

and often gives the fact finder a point of comparison against which to test the credibility 

of a witness and the validity of his conclusions.” Chamberlain, 998 S.W.2d at 237

(rejecting “premise that visual evidence accompanying oral testimony is cumulative of 

the testimony or that it is of insignificant probative value”); see Gallo, 239 S.W.3d at 762 

(that the “jury also heard testimony regarding the injuries depicted does not reduce the 

relevance of the visual depiction” provided by photographs of those injuries).

Neither do the photographs have the potential to impress the jury in some 

irrational, but indelible way. They “depict what [Young] caused and what verbal 
Young v. State Page 7

testimony properly described” and are “highly probative to show the full extent of the 

injuries [Young] inflicted on [Neeley].” Saldano, 232 S.W.3d at 101-02; Gallo, 239 S.W.3d 

at 763. They are “no more gruesome than would be expected in this sort of crime.” 

Gallo, 239 S.W.3d at 763; see Chamberlain, 998 S.W.2d at 237.

Photographs of Maxie Taylor

Dr. Jeffrey Erdner, who treated Taylor’s injuries, testified that when Taylor 

arrived at the emergency room, his face and the stretcher were covered in blood. 

Erdner was concerned about Taylor’s blood loss. According to Erdner, injuries to the 

head and face bleed more than other areas of the body. Using nine photographs, 

Erdner described Taylor’s injuries.

Photograph 36 depicts a laceration on Taylor’s face. Taylor is wearing an oxygen 

mask. Photograph 37 depicts Erdner suturing a laceration on the right side of Taylor’s 

face. Photograph 38 depicts three lacerations to Taylor’s left arm. These appeared to be 

defensive wounds. Photographs 39 and 40 depict a laceration between Taylor’s thumb 

and first finger. This also appeared to be a defensive wound. Photograph 41 depicts 

lacerations to the left side of Taylor’s neck and his left ear. Photographs 42 and 43 

depict multiple lacerations to the left side of Taylor’s scalp and forehead. Photograph 

44 depicts the laceration to Taylor’s back between his shoulder blades. Erdner was 

concerned that this wound may have punctured a lung.

Again, we presume that these were color photographs at trial. They are 

approximately 8.5” x 11” in size. Blood is visible on Taylor’s face, ears, arm, hand, neck,
Young v. State Page 8

head, and back, as well as some towels that appear in a few of the photographs. They 

are all close-ups and are the only photographs of Taylor’s injuries.

Only four pages of the record were devoted to Erdner’s descriptions of the 

photographs. They assisted Erdner’s descriptions of Taylor’s injuries and his opinions 

regarding which injuries were defensive in nature. Thus, they are “highly probative to 

show the full extent of the injuries” Taylor suffered at the hands of Young, who had 

claimed self-defense. Gallo, 239 S.W.3d at 763. That the photographs accompany 

Erdner’s testimony does not make them either cumulative or less probative. See

Chamberlain, 998 S.W.2d at 237; see also Gallo, 239 S.W.3d at 762 (“Generally, a 

photograph is admissible if verbal testimony as to matters depicted in the photograph is 

also admissible” and verbal testimony does not reduce the relevance of visual 

evidence). Moreover, Taylor testified about the injuries he received during the attack 

and explained that scars remained from those injuries.

The photographs do not have the potential to impress the jury in some irrational, 

but indelible way. They merely reflect the result of Young’s own actions and “what 

verbal testimony properly described.” Saldano, 232 S.W.3d at 101-02. Like the autopsy 

photographs, they are “no more gruesome than would be expected.” Gallo, 239 S.W.3d 

at 763; see Chamberlain, 998 S.W.2d at 237.
Young v. State Page 9

Conclusion

In summary, we conclude that the trial court did not abuse its discretion by 

admitting the complained of photographs, as their probative value was not outweighed 

by the danger of unfair prejudice. We overrule Young’s sole issue and affirm the 

judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed September 17, 2008

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