COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

BRYAN EARLTI L FORD, Appellant,

v. THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-09-00154- CR

Appea l from 41st District Court of El Paso County , Texas (TC # 20060D00718)

O P I N I O N Br y an Earl Tilford appea ls his conviction of capital murder. A jury found Appellant g uilty and his punishment was automatically set at l ife im prisonment beca use t he State had g iven notice it would not seek the death penalty

. See T E X .P E N A L C O D E AN N . § 12.31(a) (2)( West Supp. 2010). For the re asons that follow, we aff irm. F ACTUAL SUMMA RY On May 26, 1989, the nude body o f R o s al i n a R ey es was found in an eleva tor at the Br ookhollow Apar

tments. She had been stabbed in the torso and vag ina and had been strang led with

a liga ture. Appellant lived in the same building wher e Rey es’ body was found. The El Paso Police Depa rtment was unsucce ssful in solving the murder but the y rec eived new evidenc e in 1994 when

a private investiga

tor forwa rded a copy of a letter alleg edly written b y R ey es’ killer. The author identified himself as Keith L arone J ones and the “Pheonix” [si c]. I n ear ly Marc h of 1995, Detec tive J oe Z immerly trave led to For t L eave nworth and interviewe d Appellant afte r providing him with his

1

A p p e l l a n t w a s i n F o r t L e a v e n w o r t h s e r v i n g a n i n e y e a r s e n t e n c e f o r s t a b b i n g a w o m a n . 1Miranda war nings. Appellant denied committing the murder. When Z immerly told Appellant that he believed Ap p el lant was the author of the “Pheonix ” letters, Appellant became ext reme ly upset and terminated the interview. EPPD su bmitted the “Pheonix” letters to the FB I ’s Be haviora l Analy sis Unit for handwr iting analy sis along with twenty -three known ex am p l es of Appellant’s handwr iting. Wit h its highe st deg ree of probability , the BA U conclude d afte r an intensive analy sis that Appellant was the author of the two “Pheonix” letters. On Dec ember 4, 2005, J udg e Gonzalo 2 Gar cia signe d a war

rant for Appellant’s arr est. Detec tives David Samanieg o and Gonzalo Chavarr ia of the El Paso Police Depa rtment flew to Kentucky and arr ested Appellant. After being advised of his Miranda rig hts, Appellant g ave the detec tives a written statement in Kentucky

. I n that statement, Appellant denied killing Rey es and said someone had sent him the “ Pheonix ” letter s while he was imprisoned at For

t L eave nworth. Upon his return to El Paso on Dec ember 15, 2005, Appellant made

a videotaped statement afte r being Mirandized

. Appellant continued to deny any involvement in the murder but he tol d the pol i ce t hat hi s g irlfriend, Kandis Shirley , had kil led t he victim by stabbing her w ith a knife a

nd choking her w ith the cord fr om her U.S. Army “hoodie.” A g rand j u ry returne d a capital murder indictment ag ainst Appellant, alleg ing that he intentionally and knowing ly cause d Rey es’ death by strang ling her neck with a ligature while in the

course of committing ag g ravated sexual assault or by stabbing Rey es with a knife while in the course of committing a g g ravated sexual assault. A jury found Appe llant guilty

of capital murder and the trial court automatically assessed his punishment at life imprisonment beca use the State had g iven notice it would not seek the de ath pena lty

. SUF F ICIENCY OF THE E VIDENCE

T h e e v i d e n c e r e g a r d i n g t h e e x t r a n e o u s o f f e n s e , “ t h e P h e o n i x ” l e t t e r s , a n d t h e F B I h a n d w r i t i n g a n a l y s i s w a s 2
n o t a d m i t t e d i n e v i d e n c e d u r i n g A p p e l l a n t ’ s t r i a l

.Appellant has raised seven issues including a challeng e to the sufficie ncy of the evidenc e to

prove he com m i t t ed t h e offe nse. We will addre ss the issues out of order and consider the leg al sufficie ncy

issue first. Standard of Review I n his six th and seven issues, Ap p ellant challeng es the leg al and fac tual sufficie ncy of the evidenc e to prove he committed the offe nse. After Appellant filed his brief, the Court of Criminal Appea ls deter

mined that t h e Jack

son v. Virginia standard is the only standard a revie wing court 3 should apply in deter

mining whether the evidenc e is sufficie nt to support eac h element of a criminal offe nse that the State is require d to prove bey ond a rea sonable doubt. Brooks v. State , 323 S.W .3d 893, 895 (Tex.Crim.App. 2010). Acc ording ly , we will revie w the evidence u n der the Jack son v. Virginia standard. When assessing the sufficie ncy of the evidenc e to support a criminal conviction, we consider al l t h e ev i d en ce in the light most favor able to the verdic t and deter mine whether , based on that evidenc e and rea sonable infere nces there from, a rational juror could have found the es s en tial elements o f t h e crime beyond a rea sonable doubt. Jack son v. Virginia , 443 U.S. at 318-19; Villarreal v. State , 286 S.W .3d 321, 327 (Tex.Crim.App. 2009); Hooper v. State , 214 S.W .3d 9, 13 (Tex.Crim.App. 2007). We g ive defe renc e to “the responsibility of the trier of fac t fairly to resolve conflicts in the testimony , to weig h the evidenc e, and to draw rea sonable infere nces from basic fac ts to ultimate fac ts.” Jack

son , 443 U.S. at 318-19; Klein v. State , 273 S.W .3d 297, 302 (Tex.Crim.App. 2008). We con sider all of the admitted evidenc e, whether it was admissible or inadmissible. Clayton v

. State , 235 S.W .3d 772, 778 (Tex.Crim.App. 2007) ; W ilson v . State , 7 S.W .3d 136, 141 (Tex.Crim.App. 1999). When the rec ord supports conflicting infere nces, we presume that the fac t

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. 3finder r esolved the c onflicts in favor of t he prosecution and therefor e defer to that deter mination. Clayton , 235 S.W .3d at 778. Simi larly , as fac t finder, the jury is entitled to judge the cre dibilit y of the witnesses, and can choose to believe all, some, or none of the testimony prese nted by the parties. Chambers v. State , 805 S.W .2d 459, 461 (Tex.C ri m . App. 1991). The same standard of revie w applies to case s involving direc t or circ umstantial evidenc e. Powell v. State , 194 S.W .3d 503, 506 (Tex.Crim.App. 2006). The Identity Elem ent Alt h o u gh Appellant states in his brief that he is challeng ing all of the elements of capital murder, his argument i s d irec ted exclusively at the evidenc e establishing his identity as the perpe trator of the offe nse. The State may prove the defe ndant’s identity and criminal culpability by either direc t or circ umstantial evidenc e, coupled with all rea sonable infere nces from that evidenc e. Gardner v. State , 306 S.W .3d 274, 285 (Tex.Crim.App. 2009) , cert. denied , --- U.S. - --, 131 S.Ct

. 103, 178 L .Ed.2d 64 (2010). The State conce des that its case ag ainst Appellant wa s en t i rely circ umstantial. The Evidenc e I n May 1989, Rosali n a R ey es lived with her sister, Ly dia Rodrigue z, in an apar tment on Timberwolf near Mag ruder Street. On the evening of May 25, the two women walked to a nightc lub wher e they drank beer and d an ced. They beg an walking home at approximately midnight but

acc epted a ride from a man who had been at the nightc lub. Rodrigue z had him drop them off befor e they actua lly rea ched the apar tment complex so he would not know wher e they lived. The women continued walking home but Rey es bega n lag g ing be hind since she wa s not used to wear ing heels and had to remove th e boots she was wea ring

. Rodrigue z continued walking ahea d while calling back to Rey es and telling h er t o h u rr y up. Rodrigue z cut throug h the Br ookhollow Apar tmentsbeca

use they wer e well lit but she beca me lost and had a difficult time n av i gat i n g t h roug h the complex. During this time, she lost sight of Rey es. Rodrigue z eventua lly arr ived at their apar tment at around 1:30 a.m. where she waited for R ey es for about forty -five minutes befor e going to bed. At 5 a.m., a man who lived in the Br ookhollow Apar tments found Rey es’ nude body in an elevator

on the third floor of the apar tments. The medical examiner deter mined that Rey es had been stabbed multipl e times in the torso and vag ina while alive but her death was cause d by ligature strang ulation. The knife wound to the l ef t u p p er ch es t penetr ated the left lung and the wound in her left flank lace rate d the kidney and rena l arte ry . The assailant had also stabbed Rey es in the vag ina six times. T h e d ep u t y medical examiner who perf ormed the autopsy conclude d that the murder included an element of sadistic torture due to the m utilation of R ey es’ ge nitalia while s he wa s alive. Dr. Juan Contin, who was t h e C h i ef Medica l Ex aminer for El Paso County in 1989, revie wed the autopsy repor t and photogr aphs and testified that the ligature wound on Rey es’ neck was consistent with the cord from a swea tshirt/hoodie. He also estimated that the knife which cause d the stab wounds was three to four inche s in leng th. Rey es had a blood alcohol level of

.223 at the time of he r death. At the time of the murder, Appellant was in the Army and stationed at Ft. Bliss. He lived on the second floor of the building wher e Rey es’ body was found. The police found a blood smear on the threshold of the elevat o r fl o o r. They also found two blood smears on the second floor of the

same building. One of

these smea

rs was f ound on the concr ete floor betwee n the eleva tor landing and the se cond-f

loor hallway

to the residents’ apar

tments. The other blood sme ar was on the wall outside of the elevator door on the second floor. Samples from all three blood smears wer e collecte d and submitt ed to the FB I lab for fore nsic testing. Tamy ra Moretti, an FB I DNA expert, testified that the blood from the elevator threshold and from the concr ete flooring of the second floor matched the victim’s DNA. The third blood smear found on the wall outside of the eleva tor on the second floord i d not match the victim or Appellant. The police did not collect any blood from Appel l an t ’s

apar tment. Appellant’s DNAwas not found on the vic tim or at the scene

. Following Appellant’s 2005 arr est in Kentucky , the police in te r v ie w e d h im

. When Appellant indicated he believed the pol i ce n o l o n ger suspected him in the 1989 murder, Detec tive Gonzalo Chavarr ia decided t o “bluff” Appellant by telling him they had found his DNA a t the crime scene and asking him why his DNA would be at t h e cr i me scene . They did not, howeve r, provide Appellant with any

details of the of

fense nor di d they specify whether the s ource of t he DNA was blood, hair, saliva, or semen. I n his written statement, Appellant explained that his g irlfriend Kandis had a habit of pulling his body hair and throwing it ever y wher e around the apar

tm en t building, including the elevator. He claimed that Kandis sexually abused him. He also said that he c hewe d tobacc o an d re g ularly spit ever y wher e, including the apar tment eleva tor. Appellant wrote on the back of his ty pewr itten statement t hat hi s hair brush and “spit bot tle” we re missing from his truck on the day

of the murde r in El Paso and Ka ndis had used the truc k. After returning to El Paso ten day s later, the detec tives spoke with Appellant aga in and he g ave a leng thy video-re corde d statement. F or t he first ti me, Appellant a dmitted knowledg e of the murder but he acc used Kandis of killing Rey es. Appe llant expl ained that he and Ka ndis had bee n living at Br ookhollow Apar tments for about a wee k befor e the murder. Consist ent with his written statement, Appellant rela ted that Kandis had pulled out head, arm, chest, moustache, and pubic hairs from his body

and thrown the m on the floor of the eleva tor. Kandis told him that if any thing e ver happene d, he would g et i n trouble. On their fir st day at the apa

rtment, Kandis told Appellant that “some bitch” had made her ang ry and that he did not need to worry about it beca use she would take

car e of it. The night befor e the murder, one of Appellant’s army buddies, Har ry Short, came over to theapar

tment for a visit. They drank beer , whiskey , and tequila. At around m i dnight, Kandis and Appellant d ro v e Short back to the barr acks. Appellant could not drive beca use he was drunk, so Kandis drove. When the y returne d to the apar tments, Kandis saw the same woman who had made her ang ry and Kandis threa tene d t o run over her. She told Appellant he would be blamed for it beca use it was his truck. Kandis and Appellant returne d to their apar tment befor e 2 a.m. and Kandis helped him undress. Kandis l eft wh ile Appellant continued to drink beca use her comments upset him. Appellant did not know wher e she had g one but he believed she had driven home in his truck. At s o m e p o i n t , Appellant hit his head and fell to the floor. When Appellant hear d “hooping and hollering ” and car horns outside, he g ot up to c heck on it beca use he rea liz ed that he had not hear d his truck leave the parking lot. He put on a white striped shirt, jeans, and tennis shoes and stag g ere d down the stairs. Appellant saw that the driver- side door of his truck was open. He hear d a noise at the eleva tor and hear d Kandis ang rily call someone a bitch from inside of the eleva tor. The elevator door opene d and Ka

ndis ex ited and ra

n toward his truc k. She was car rying his Uncle He nry

knife that he kept in his truck. The knife had a four- inch bl ade. He reca lled that Kandis was wear ing a U. S

. Army swea tshirt that evening

. He did not rec all whether Kandis was car rying any i t em s o f clothing w hen she e x ited the eleva tor. Appellant then saw a naked , o r partially naked, woman lying on her back on the elevator floor. He descr ibed her as Hispanic, approximately 5’ 5” tall with dark hair that was wavy or curly

. 4 He did not notice any injuries on the body and he did not see any blood. As he looked at the body , Kandis hit him on the head and he fell on top of the woman. H e rolled of f of he r, and de termined that the woman was not responsive and did not have a pulse. Panicked, he ran up the stairs toward

A p p e l l a n t i n i t i a l l y d e s c r i b e d t h e v i c t i m a s n a k e d b u t h e l a t e r s a i d h e o n l y n o t i c e d t h a t t h e v i c t i m ’ s t o r s o w a s 4
n o t c l o t h e d

.the apar

tment. Kandis followed him with the knife still in her hand and told him to keep his mouth shut or she would ha

rm their unborn c hild. The following day , Kandis ca me to the apa

rtment and asked if he reme mbere d what had happene d the night befor e. When he indicate d t h at he did, she repe ated her threa t. Appellant did not tell the police Kandis had committed the murder beca use he wanted to protec t his children. Appellant denied helping Kandis commit the offe nse or dispose of 5 the clothing and knife

. Some time later when they wer e in Ger many , Kandis told Appellant details about the murder. She told Appellant that she saw t h e wo man outside of the apar tment complex and y elled at her. Kandis led her into the elevator and attacke d the victim from behind. Kandis stabbed her in the side while holding one hand over the victim’s mouth. She knew that stabbing a person in the kidney was

one way to kill a person. Kandis then stabbed the victim once in t h e chest with the intention of hitting t he heart. The stab wound t o the che st was horizontal betwee n the ribs and Kandis m oved the knife back and forth in an eff ort to cut the hear

t. Kandis also claimed to have stabbed the victim in the ey es. Kandis nex t remove d the c o rd from her U.S. Army swea tshirt/hoodie and wrapped it around th e woman’s neck. Kandis even stomped on the woman’s neck to make sure she was not breathing. Ka

ndis did not put a knife in the vi ctim’s vag ina but instead put her hand inside of t he victim and “rippe d” the vag ina to make it look like she had been rape d. Kandis was wea ring rubber g loves when she did this. Kandis told Appellant that she attacke d the woman beca use she ref

used
to join her and Appellant in a sexual three some. Kandis also noted that the victim had been bare foot, spoke Eng lish, and appea red intox icated. Appellant told the police that the woman he saw in the eleva tor was the same woman Kandis wanted to run over w ith the truck. Finally , Kandis told him that she put the woman’s clothes in a paper bag from Appellant’s truck and put the m in a trash can

A p p e l l a n t m a r r i e d K a n d i s a n d t h e y h a d t h r e e c h i l d r e n . 5at the apa

rtment complex. The interview c oncluded. L ater that same morning , Appellant ask ed t o speak to Detec tive Samanieg o ag ain. He continued to state that he did not kill the victim, but he admitted for the first time that when he had hear d all of the noise downstairs and went outside of his apar tment, he saw the victim on the second floor of the apar

tment building

. He asked whether she was okay but she did not answe r. Appellant later beca me conce rned a

bout the woman and he went to c heck on her. That is when he found her dead in the ele v at o r. He chec ked for a pulse and re- positioned her body so she would be more comforta ble. The State prese nted evidenc e to ref ute Appellant’s statements. Har old Shirley , testified that his daug hter, Kandis lived with him in May 1989. She had been eng ag ed to Appellant for about four months. Shirley routinely require d Kandis to wake him when she arr ived hom e after being out in the evening to let him know she had returne d and was safe

. He rec alled that Kandis did not stay out afte r midnight during that time period. Kandis testified that even though she was preg nant and eng ag ed to Appellant, she lived with her fathe r in Ma

y 1989. After discovering she was pregnant in April, Kandis and Appellant beg an looking at ap ar t ments. After renting an apar tment at Br ookhollow, she beg an setting up the apar tment and moving things into it, but she did not spend the night at the apar tment until afte r they

wer e marrie d on J une 2, 1989. She rec alled seeing Appellant at the apar tment on May 25, 1989, but she left in App el l an t’s truck at around 6 p.m. afte r they had an argument and she returne d to her fathe r’s house wher e she was living. She returne d to the apar tment complex the following morning beca use they had err ands to run. She noticed y ellow police tape around the building and saw police

car s and eme rge n cy vehicles. She parke d the truck and took the stairs to the apar tment. Kandis could not open the door with her key beca use Appellant had eng ag ed the chain lock from the inside.Appellant opened the door and Kandis noticed that it was extremely dark in the apar tment beca

use the curta ins wer e draw n and al l of the lights wer e turned off. Appellant was wea ring only his milit ary shorts. Kandis asked Appellant what was g oing on outside but he said he did not know what she was talking a

bout. She noticed that he was jittery and not acting normal. Kandis denied ever sexually abusing Appellant. Appellant’s friend, Har

ry Short, testified that he met Appellant when they both lived in the barr acks. Appellant moved out of the barr acks at some point and into an apar tment. The first time Short ever went to Appellant’s apar tment was afte r the murder. Short rec alled that there was police tape a cross the e levator a nd he aske d what happe ned. The State also introduced a letter written by Appellant to Kandis in Fe bruar y 1991 when she was preg nant wit h their second child. Ex pressing ang er beca use of the preg nancy , Appellant tol d her tha t this would be the last child they would have. After the child was born, he expected her to have her “tubes cut, tied and burned.” Kandis and Appellant divorce d in 1995 and neither she nor the childre n have ha d any further contac t with him. Circumstances Establishing Appellant’s Guilt A number of circ umstances link Appellant to the m urder and support the j ury ’s findi n g o f g uilt. First, Appellant had the opportunity to commit the crime. He lived on the second floor of the apar tment building wher e Rey es’ body was found and her blood was found on the second floor near the eleva tor. Appellant was prese nt at the apar tment when Kandis left with his truck at around 6:30 that evening

. Appellant said he saw the victim a live on the second floor of the apar tment building sometime after

midnight. See Torres v . State , 141 S.W .3d 645, 660-62 (Tex .App.--E l Paso 2004, pet. ref ’d)( in addre ssing leg al sufficie ncy challeng e in murder case , court considere d evidenc e that defe ndant was la st to see victim alive and wa s last seen with victim ); Ree ves v . State , 969 S.W .2d471, 477-80 (Tex.App.--Waco 1998, pet. ref ’d)( in addre ssing leg al sufficie ncy challeng e in murder

case , court considere d evidenc e that the defe ndant was the last one to see the victim alive and he had the best opportunity

and motive for killing her)

. Second, Appellant had read y acc ess to and knowledg e of the ty pe of wea pon used to stab Rey es and the wea

pon used to strang le her. See Huffman v. State , 775 S.W .2d 653, 661 (Tex.App.-- El Paso 1989, pet. ref

’d)( in a murder case based on circ umstantial evidenc e and involving ligature strang ulation, court consider ed evide nce that belt was found near the vi ctim’s bed, and concluded that it even thoug h it was not c onclusively shown to be murder w eapon, de fenda nt had ac cess to a belt which g ave him the capa city to inflict the fata l injuries). Appellant admitted to the police that he had collecte d knives since he was a child and at the time of the murder, he car ried a knife in his truck for protec tion. Fur

ther, Appellant had two knives on his person and two additional knives in his truck at the time of his arr est. He also told the police that Kandis retrie ved his Uncle Henr y knife from his truck and stabbed the victim with it. That knife has a four- inch blade and is consistent with the m edica l examiner’s t estimony that the s t ab wo u nds wer e infli cted with a knife having a blade l ength of three -to-four -inche s. Simi larly , Appellant had rea dy acc ess to and knowledg e o f t h e liga ture used to strang le the victim. The medical examiner descr ibed the liga ture wound as narr ow and testified that it was consistent with the cord from a swea tshirt/hoodie. Appellant told the police that Kandis strang led the victim with the cord from her U.S. Army swea tshirt/hoodie. The jury could have disbelieved Appellant’s claim that it was Kandis who killed the victim and instead believed that Appellant strang led the victim with the cord f rom his own U.S. Army

swea tshirt/hoodie. Third, Appellant’s nervous demea nor and suspicious behavior the morning afte r the murder could have b ee n co n s t rued by the j ury as a consciousness of g uilt. Ex cessive nervousness and an unsettled demea

nor m ay b e i n fe rr ed by a jury as consciousness of guilt. See Lassai nt v. Stat e , 79S.W .3d 736, 744 (Tex.App.--Corpus Christi 2002, no pet.)(a cknowledg ing that a defe ndant’s

nervous behavior could show a consciousness of g uilt). When Kandis arr ived at the apar tment the morning afte r the m u rder, she noticed a considera ble commotion with the police and emer g ency vehicles prese nt outside of the apar tment. When she g ot up to the apar tment, she found that it was quite dark beca

use all of the curta ins wer e draw n and the lights wer e off. Appellant claimed to not have any awa

rene ss of the “commotion” downstairs. She also noted that Appellant was jittery and did not seem normal. Four th, Ap p el l ant’s story chang ed over time and was ref uted or contra dicted by other evidenc e. See Ledesma v. State , No. 08-04-00043- CR, 2005 WL 3254499 , at *7-8 (Tex.App.-- El Paso Dec

. 1, 2005, pet. ref ’d)( not desig nated for p u

b li c a ti o n ) ( d e f e n d a n t’ s vary ing and inconsistent explanations for the victim’s disappea ranc e supported jury ’s finding of g uilt); Huffman , 775 S.W .2d
at 660-61 (def

endant’ s explanation of time when victim left, which was shown to be false, supported jury ’s finding of g uilt). For y ear s, Appellant denied any knowledg e of the murder or the victim, but when the police told him in 2005 that his DN A h ad b ee n found at the scene , Appellant beg an chang ing his story

. Following his 2005 ar re s t , t h e police told Appellant that his DNA had been found at the scene but they did not specify the source of the DNA. Although Appellant had denied any involvement in the m urder for y ea rs, Appellant presented impl ausible ex planations as t o how his hair or sal i v a m i ght have g otten on the victim. Upon returning to El Paso in police custody , Ap p el l an t g ave a video-re corde d statement in which he admitted knowledg e of the murder. Appellant acc used Kandis and said he had come into contac t with the body when Kandis hit him in the head and he fell onto the body in the eleva tor. Photogra phs show a considera

ble amount of blood

on the vict i m ’s b ody and the floor of the eleva tor but Appellant denied g etting any blood on his clothes. He claimed that he never reve aled Kandis’ crime beca use she had sexually abused him andthrea tene d t o h arm their children. After providing this version of events to the police, Appellant

chang ed his story ag ain. He said that he had seen the victim alive on the second floor of the apar tment building and he even attempted to speak with her but she did not answe r him. Concerne d about the woman, Appellant later went looking for her and found her dead in the eleva tor. The jury

was fre e to reje ct Appellant’s vary ing versions of events and his acc usations ag ainst Kandis. See Cacy v. State , 901 S.W .2d 691, 702 (Tex.App.--Ama rillo 1995, pet. ref

’d). This is espec ially true g iven that Appellant’s stories about the night of the murder are ref uted by Har

ry Short and Kandis. Whi l e Appellant claimed that he was with Short and Kandis until midnight on the night of the murder, and he and Kandis drove Short back to the barr acks, Short testified he had never been to the apar tment until afte r the murder. The wedding took place approximately one wee k afte r the murder. Kandis testified she had g one home around 6:30 or 7 that evening afte r an argument with Appellant and she did not return until the foll owing morning

. This ref utes Appellant’s assertion that he and Kandis saw the victim near the apar tment that evening and Kandis threa tened to run over her. I t also
contra dicts Appellant’s claim that it was Kandis who killed Rey es. Appellant’s asser tion that he fell

o n t o t he body but did not g et any blood on him is not only inconsistent with the evidenc e, i t i s implausible g iven the amount of blood on the body and in the eleva tor. The jury could have inferr ed that Appellant had a co n s ci o u s n es s of g uilt g iven his cre ation of these stories, parts of which are implau s i b le or inconsistent with the phy sical evidenc e and other testimony

. See Huffman , 775 S.W .2d at 660. The jury could have viewed the same evidenc e as af fi rmative evidenc e of culpability

. Id. Fifth, Appellant had knowledg e of details of the crim e and crime scene only the assailant

wo u l d know. See Dossett v. State , 216 S.W .3d 7, 13-15, 31 (Tex.App.--San Antonio 2006, p et

. ref ’d)( defe ndant’s knowledg e of the crime scene , which he said was reve aled to him in a drea m, wasa circ umstance supporting his g uilt). Appellant knew that the victim had been stabbed in the chest

and kidney befor e being strang led. The order in which the injuries wer e inf l i ct ed would not have been appar ent to an onlooker. Whil e the stab wound to the chest was visible, the stab wound in the l eft flank was not visible and an onlooker cer tainly could not know that the knife l ac er at ed t h e kidney

. Appellant also knew that the assailant had inflicted stab wounds to the vi ct i m’s vag ina. Although there is blood on the vi ctim’s thighs, someone just looki ng at t he body would not know
t h at v agi n al s tab wounds wer e the source of t he blood. Appellant’s statement that the vi cti m h ad bee n s t ab b ed wi th a knife which had a four- inch blade is consistent with the medical examiner’s finding s. L ikewise, Appellant’s asser tion that t h e v i ctim had been s trang led wit h the cord from a

swea tshirt/hoodie w a s c o n s is te n t w it h the medical examiner’s finding s. Finally , Appellant knew that the victim was intox icated, spoke Eng lish, and was bare foot. There is no evidenc e any of the police office rs ever reve aled any of these details to Appellant during their interviews. I t was the jury ’s task to evaluate all of the e vidence and it could re ject Appe llant’s claim that he r ece ived knowledg e of these fa cts from a

nother sourc e. See Cac

y , 901 S.W .2d at 702. We conclude that the combined forc e of all of the incriminating circ umstances was sufficie nt to a llow a jury to c onclude bey ond a rea sonable doubt that A ppellant committed c apital murder as alleg ed in the indictment. I ssues Six and Seven a re ove rruled. VALIDITY OF THE S EARCH WARRA NT I n I ssue One, Appellant contends that the aff idavit supporting the arr est war rant i s insufficient to establish probable cause he murdere d Rey es, and there fore , the custodial statements and evidence subsequently seized from Appellant’s vehicle shoul d have been suppressed because they wer e tainted by his illega l arr est. The State contends that Appellant failed to prese rve this issue for r eview. We a g ree .Preserv ation of Error

To prese rve a complaint for appellate revie w, the complaining party m u s t s how that the complaint was made to the trial court, b y a timely reque st, objection, or motion that stated the g rounds for the ruling with sufficie nt speci fi ci ty to make the trial court awa re of the complaint, unless the specific g rounds wer e appar ent from the context. T E X .R.A P P .P. 33.1( a)( 1). The rec ord
must also show that the trial court ruled on the reque st, objection, or motion, either expressly or implicitl y . T E X .R.A P P .P. 33.1(a) (2). Two purposes are serve d by requiring a t i mely , specific objection: (1) to inform the trial court of the basis of the objection and g ive the judge the opportunity
to rule on it, and (2) to g ive opposing counsel the opportunity to remove the objection or provide other testimony

. Garza v. State , 126 S.W .3d 79, 82 (Tex.Crim.App. 2004)

. By aff ording the trial
court an opportunity to rule on an objection, the court is able to d ec i d e whether the evidenc e is ad m i ssible. Id

. I f the trial court decide s the evidenc e is inadmissible, the jury is shie l d ed fr o m hear ing it. Id. Fur

ther, the argument raised on appea l must comport with the objection made at trial or it is waived. W

ilson v. State , 71 S.W .3d 346, 348 (Tex.Crim.App. 2002). When deter

mining whether a motion to suppress is sufficie ntly specific to prese rve err or, we keep in mind that g ener ic or g lobal statements g ener ally do not prese rve err or for appellate revie w. See Swain v. State , 181 S.W .3d 359, 365 (Tex.Crim.App. 2 0 0 5 )(where defe ndant made g lobal arg uments in motion to suppress that his statements wer e obtained in violation of his rig ht to counsel and rig ht ag ainst self-inc rimination, he did not prese rve issue on appea l that the police violated his rig ht to counsel by

continuing to que stion him afte r he r equeste d counsel). “Shotgun” objections, which cite many g rounds for the objection without argument and serve only to obscure the specific g rounds of the obj ection, do not prese rve a complaint for appellate review. Jo hnson v. Stat e , 263 S.W .3d 287, 289-90 (Te x .App.--H ouston [ 1st Dist.] 2007, pet. dism’d).Appellant filed a motion seeking to suppress tang ible evidenc e, written and oral statements

made to any law enfor ceme nt office rs, and the testimony of witnesses conce rning the evidenc e and statements, on the following g rounds: 1. The detention and subsequent arr est of the Def endant wer e illega l and in violation of the Four

th, Fifth an d Four

teenth Amendments to the Constit ution of the United States and Chapter

14 of the Te x as Code of Criminal Proce dure. 2

. Any tang ible evidenc e seized in connec tion with this case was seized wi t h o u t lawful war

rant, probable cause or other lawful authority in violation of the Def endant’ s rig hts under the Four th and fourtee nth Amendments to the United States Constit ution, Article I , Section 9 of the Constit ut i o n of the State of Texas, and Chapters 14 a

nd 38 of the Te x as Code of Criminal Proce dure. 3. Any statements obtained from Def endant wer e obtained in v i o l at ion of Def endant’ s rig hts under the Four th, Fifth, Six th, and Four

teenth Amendments to the United States Constit ution, Article I , Sections 9, 10, and 19 of the Constit ution of the State of Texas, and Chapter 14 and Article 38.21, 38.22 and 38.23 of the Texas Code of Criminal Procedur e. 4. Testimony conce rning any actions of the Def endant while he/she was under arr est or in detention would be a product of a violation of the Def endant’ s rig hts under the Four th, Fifth, Six th, and Four

teenth Amendments to the United States Constit ution, Article I , Sections 9, 10, and 19 of the Constit ution of the Stat e of Texas, and Chapter 14 and Ar ticle 38.21, 38.22 and 38.23 of the Texas Code of Criminal Procedur e. Parag raphs 1 thro u gh 4 are g lobal in nature and are not sufficie ntly specific to prese rve the issues prese nted on appea l. Parag raph 1 is the only para g raph which ref ere nces Appellant’s arr est but the g ener ic asser

tion in Parag raph 1 that his ar re s t was illega l in violation of the Four th, Fifth, and Four teenth Amendments does not put the trial court or opposing counsel on notice that Appellant intended to argue that the aff idavit supporting the arr est war rant is insufficient to establish probable

cause that he mur d er ed Rey es or that the illega l arr est tainted the evidenc e seized at the time of Appellant’s arr est or the statements he made to the police. See Swain , 181 S.W .3d at 365; Johnson , 263 S.W .3d at 289-90.We have also examined the rec ord of the motion to suppress hear in g t o d et er m ine if

Appellant preserve d his complaints there

. At the hearing , Appellant challenged the vol untariness and rele vance of his oral and written statements. Additionally , Appellant asser ted that his statements

wer e inadmissible beca

use of an alleg ed delay in taking him befor e a mag istrate afte r his arr est. At the conclusion of the hear ing, Appellant’s counsel stated that he was also objecting t o t h e arrest

war rant aff idavit “as to its sufficie ncy and probable cause .” Whil e this objection raised Appellant’s

co m p l aint reg arding the sufficie ncy of the sear ch war rant aff idavit, he never obtained an adv er s e ruling on this obj ec t i o n from the trial court. The trial court enter ed a written order reg arding the voluntariness of Appellant’s statements but the o rd er does not addre ss the leg ality of Appellant’s

arr est. Acc ording ly , we ove rrule I ssue One. AP P ELL ANT’S STATE MENTS I n I ssue Two, Appellant argues that his written statement and v i d eo -r ecorded statement should ha ve been suppressed beca

use the statements wer e taken in violation of his rig ht to counsel g uara nteed by the Fifth and Six th Amendments beca use he was interrog ated without counsel being prese nt. The State maintains that Appellant did not pre serve these a rg uments. We ag ree . Preserv ation of Error I n his motion to suppress, Appellant made the g ener ic as s er t i on that his statements wer e obtained “in violation of Defen d an t ’s rig hts under the Four th, Fifth, Six th, and Four teenth Amendments to the United States Constit ution, Article I , Sections 9, 10, and 19 of the Constit ution of the State o f T ex as , and Chapter 14 and Article 38.21, 38.22 and 38.23 of the Texas Code of Criminal Procedur e.” His motion did not include any mention of t h e ri gh t to counsel. At the suppression hearing , Appellant challeng ed t h e v o luntariness and rele vance of hi s oral and written
statements. Additionally , Appellant asser ted that his statements wer e inadmissible b ec au s e of analleg ed delay in taki n g h i m befor e a mag istrate afte r his arr est. I n his written memorandum filed

with the trial court in support o f h i s m o t i o n to suppress, Appellant clea rly raised a claim that his
statement made on Dec ember 5, 2005 should be suppressed beca use it was taken in violation of his S i x t h Amendment rig ht to counsel. When the statements wer e offe red into evidenc e at trial, Appellant rene wed the objections made at the suppression hear ing, but he did not asser t that his Fifth Amendment rig ht to counsel had be en violated. We ther efor e conc lude that Appellant wa ived his arg ument based o n the Fifth Amendment rig ht to counsel beca use he did not make a sufficie ntly specific ar gu m en t i n the trial court. See T E X .R.A P P .P. 33.1(a) (1). Even if it could be said that Appellant raised the issue in the trial court, he did not obtain an adver se ruling from the trial court

on such an objection. See T E X .R.A P P .P. 33.1( a)( 2). L ikewise, the rec ord does not r efle ct that the trial court ruled on the Six th Amendment rig h t t o co u n s el issue either expressly or impliedly

. Consequently , the ar g uments raised on a ppeal a re w aived. See T E X .R.A P P .P. 33.1(a)( 2). Delay in Taking Appe llant to Magist rate I n this same issue, Appellant conte nds that his state ments are inadmissible be cause he was not taken promptly to a mag istrate afte r his initial arr est on Dec ember 5 and ag ain on Dec ember 14 when he was broug ht back to El Paso. I n support of this argument, Appellant cites Article 14.06 of the Code of Criminal Procedur e and Corley v. United States , --- U.S.

--- , 129 S.Ct

. 1558, 173 L .Ed.2d 443 (2009). Appellant’s relianc e on Corley is misplaced beca use Corley conce rns a fede ral
statute which applies only to prosec utions broug ht by th e Un i t ed S t at es or by the District of Columbi a. Article 14.06 require s that an ar re s t ed p erson must be taken befor e a mag istrate without

unnece ssary delay but not later than forty -eig ht hours afte r the arr est. T E X .C O D E C R I M .P R O C .AN N . art. 14.06(a) (West Supp. 2 0 1 0 ). Be fore Detec tive Samanieg o left for Kentucky , J udg e Gar ciainstructed him to bring Appellant befor e him immediately upon returning to El Paso. Upon lear ning that the flig ht from Kentucky would not arr ive in El Paso until midnight, J udg e Gar cia instructed Samanieg o to take Appellant befor e him the following morning at 9. Detec tive Samanieg o complied with those instructions. Appellant has failed to show that the nine hour day was an unrea sonable

one. Even if the delay had been unrea sonable, it would not vitiate Appellant’s otherwise voluntary
statements beca

use, as the trial court found in the written finding s reg arding the voluntariness of Appellant’s statements, the police proper ly advised Appellant of his Miranda rig hts befor e he g ave the statements in question. See Jones v. State , 944 S.W .2d 642, 649 (Tex.Crim.App. 1996); Cantu v. State , 842 S.W .2d 667, 680 (Tex.Crim.App. 1992). I ssue Two is over ruled. EVIDENCE SE IZED AT TIME OF ARREST I n I ssue Three , Appellant argues that the trial court ab used its discretion by admitting a photogr aph of A

ppellant at the time of his arr est and the evidence seized from Appe llant’s person

an d v ehicle as well as photogr aphs of this evidenc e. Appellant maintains that the evi d en ce i s inadmissible under Rules 401 and 402 of t he T ex as R u l es o f Evidence because it is not rele vant. Additionally , he asser

ts that T E X .R.E V I D . 4 0 3 p re cl udes admission of the evidenc e beca use its probative value is outweig hed by the dang er of unfair prejudice

. He further contends that the evidenc e wa s admitted in violation of T E X .R.E V I D . 404(b). The police arr ested Appellan t i n S hepar dsville, Kentucky when he arr ived at a publishing

co m p an y for a job interview. A Kentucky detec tive sear ched Appellant and seized two knives , a stun g un, and brass knuckles from his person. Appellant co n s en t ed t o a sear ch of his truck. The police found two more knives and para chute cord in the truck. Appellant did not initially object to the testimony about the items found on his person but he raised a rele vance objection to a photogr aph of the items (State’s Ex hibit 65) and to three photogr aphs of the interior of his truck (State’s Ex hibits67, 68, and 70). The t ri al court overr uled that objection and g ave him a running objection to the testimony about the sear ch of his truck and the items seized fr o m i t. When the State offe red into evidenc e the items shown in the photogr aphs, Appellant agai n ra i s ed a rele vance objection. The
court ove rruled the objection. Preserv ation of Error Appellant did not state any objection with respe ct to State’s Ex hibit 64 (a photogr aph of Appellant’s fac e), Stat e’s Ex hibit 66 (a photogr aph of the exterior of Appellant’s vehicle) , and State’s Ex hibit 69 (a photogr aph of sung lasses in Appellant’s vehicle)

. Consequently , he has waived any issue with respec t to these three photogr aphs. T E X .R.A P P .P. 33.1(a). Reg arding State’s Ex hibit 65 (a photogr aph of the two knifes, stun g un, and brass knuckles seized from Appellant’s person) and State’s Ex hibits 54, 55, 56, and 59 (the actua l items), Appellant objected to these exhibi ts as irrele vant but only afte r he had permitted Detec tive Samanieg o to testify without objection t hat t he it ems wer e seized fr om Appellant’s per son at the time of hi s arr est. To prese rve an issue for appellate revie w, the complaining party must make a timely and s p ec i fi c objection. T E X .R.A P P .P. 33.1(a) (1); Dixon v. State , 2 S.W .3d 263, 265 (Tex.Crim.App. 1998). An objection is timely when it is made at the ear liest possibl e opportunity

. Gillenwaters v. State , 205 S.W .3d 534, 537 (Tex.Crim.App. 2006). Fur ther, a party must object eac h time the inadmis s i b l e evidenc e is offe red or obtain a running objection. See Valle v. State , 109 S.W .3d 500, 509 (Tex.Crim.App. 2003); Ethington v. State , 819 S.W .2d 854, 858 (Tex.Crim.App. 1991). By failing
to object to Detec tive Samanieg o’s testimony about the sear ch and its result, Appellant’s subsequent objection to State’s Ex hibits 54, 55, 56, 59, and 65 was untimely

. See Hill v. State , 303 S.W .3d 863, 876 (Tex.App.--F ort Worth 2009, pet. ref ’d)( defe ndant did not pr eser ve issue rela ted to admission of photogr aphs of g un seized from his vehicle beca use he did not object to office rs’ testimony aboutthe g un); Thomas v. State , 884 S.W .2d 215, 216-17 (Tex.App.--El Paso 1994, pet. ref ’d)( defe ndant’s objection t o ad m i s s i on of evidenc e seized from his person was untimely wher e he objected afte r allowing police office rs to testify , without objection, reg arding the sear ch and discovery of sy ring e containing coca ine re sidue in his pocket). Wit h respe ct to the rema ining evidenc e, Appellant never voiced any objection at trial based

on either Rules 403 or 404(b) of the Texas Rules of Evidence

. Consequently , those complaints are not preser ved for our re view. T E X .R.A P P .P. 33.1(a). Relev ance The only issue which is prese rved is whether the court abused its discretion by overr uling Appellant’s rele vance objection to the items se ized f rom Appellant’s truck and the photogr aphs of those items (State’s Ex hibits 53, 57, 58, 67, 68, and 70). Relevant evidenc e is “evide nce having any tendenc y to make the exis tence of any fac t that is of conseque nce to the deter mination of the action

more probable or less probable than it would be without the evidenc e.” T E X .R. E V I D . 401. Evidence need not by itself prove or disprove a p ar t i cu l ar fac t to be rele vant; it is sufficie nt if the evidenc e provides a small nudg e toward proving or disproving some fac t of conseque nce. Kirsch v. State , 306 S.W .3d 738, 743 (Tex.Crim.App. 2010 ) ; S te wa r t v . S ta te , 129 S.W .3d 93, 96 (Tex.Crim.App. 2004). Questions of rele vance should be left larg ely to the trial court, rely ing on its own observa

tions a nd experience , and we will not reve rse absent an abuse of discretion. Moreno v. State , 858 S.W .2d 453, 4 6 3 (Tex.Crim.App. 1993), Levario v. State , 964 S.W .2d 290, 297 (Tex.App.--El Paso 1 9 9 7 , n o pet.). A trial court abuses its discretion whe n its decision is so clearly wrong as to lie outside that

zone within which rea sonable persons might disag ree . McD onald v. State , 179 S.W .3d 571, 576 (Tex.Crim.App. 2005). When considere d in isolation, evidenc e that Appellant car ried knives in his vehicle in 2005might at first blush appea r irrele vant to the commission of a murder in 1989. As the State points out, howeve r, Appellant admitted in his statement made in 2005 that he had collecte d knives since he was

a child and he car

ried a knife in his vehicle in 1989 for protec tion. Thus, the evidenc e showing that Appellant car

ried multipl e knives on his person and in his vehicle at the time of his arr est is rele vant to show Appellant’s considera ble familiarity with knives and to provide a “sm al l n u d ge” toward demonstrating his opportunity , means, a nd capa city to have c ommitt ed the murde r. See H uffman , 775 S.W .2d at 6 61 (whe re defe ndant had acc ess to a particula r belt, even though it was not conclusively shown to be the murder we apon, the evidenc e was considere d by the court in its sufficie ncy revie w as an incriminating circ umstance)

. The trial court did not abuse its discretion by finding the knives re cover ed fr om Appellant’s vehic le to be re levant. The State does not arg

ue that the para chute cord is rele vant to any materia l issue in the case , but contends that its admis s i o n was harmless. The err oneous admission of evidenc e is a nonconstitutional err or subject to the harm analy sis found in T E X .R.A P P .P. 44.2(b). Motilla v. State , 78 S.W .3d 352, 355 (Tex.Crim.App. 2002). Under Rule 44.2(b), a non-constitutional error that does
not aff ect substantial rig hts must be dis re gar ded. Rich v. State , 160 S.W .3d 575, 577 (Tex.Crim.App. 2005). Substantial rig hts are not a ffe cted by the err oneous admission of evidenc e if the appellate court, afte r examining the rec ord as a whole, has fair assura nce that the err or did not influence the jury , or had but a slight eff ect. Motilla , 78 S.W .3d at 355. When conducting a Rule 44.2(b) harm analy sis based upon t h e er ro n eous admission of evidence, an appellate court should consider ever

y thing i n the rec ord, including any testimony or phy sical evidenc e admitted for the jury ’s consider ation, the nature of the e vidence supporting the verdic t, the char acte r of the a lleg ed

er ror and how it might be considere d in connec tion with other evidenc e in the case , the j u ry instructions, the State’s theory and any defe nsive theories, closing arguments, voir dire, and whetherthe State emphasized the e rror . Motilla , 78 S.W .3d at 355-56.

Detec tive Samanieg o descr ibed the para chute cord as “some ty pe of liga ture” but he was interrupted by Appellant’s objection. The State did not pursue the line of questioning and it ne ver

asser ted that the para chute cord was the murder wea pon or that it was illega l to possess it. After its admission, the prosec utors did not mention the evidence ag ain during the trial. Other evidenc e showed that the liga ture actua lly used t o kill the victim may have been the cord from a

swea tshirt/hoodie. We conclude that admission of the para chute cord did not influence the jury , and there fore , did not aff

ect Appellant’s substantial rig hts. See Goldberg v. State , 95 S.W .3d 345, 366- 67 (Tex.App.--Houston [1st Dist.] 2002, pet. re f’d) (in murder prosec ution, admission of evidence showing defe ndant had knives in his ca r at time of his arrest was harmless be cause prosec utor did
not arg ue that either of the knives was the murder wea pon but instead argued that the defe ndant had probably disposed of the murde r we apon). I ssue Thre e is overr uled. AUTOP SY P HOTO GR AP HS I n I ssue Four , Appellant contends that the trial court abused its discretion by admitting seven autopsy photogr aphs (State’s Ex hibits 35, 36, 37, 38, 40, 44, and 45) beca use the photogr aphs wer e irrele vant and their probative value was substantially outweig hed by the dang er of unfair prejudice

. He arg ues that admission of the au topsy photogr aphs was unnece ssary g iven that photogr aphs depicting the vi ctim’s body at t he scene had alrea dy been a dmitted as had the medical ex aminer’ s autopsy repor

t. Finally , Appellant asserts that the au t o p s y p h o t og raphs amounted to a “ga llery of g ruesomene ss that wa s o nly calc ulated to inflame the jury and compel them to convict on an improper ba sis.” Preserv ation of Error We first consider whether Appellant prese rved his specific complaints that the photogr aphswer e g ruesome and inflammatory

. I n a hear ing held outside the prese nce o f t h e j u ry , Appellant

objected to “all the photogr aphs of the dece ased” on rele vance and Rule 403 g rounds. Stating that the photogr aphs depicted the dece ased in a “ver y compromised position,” Appellant argued that the 6 photogr aphs wer e irrele vant and prejudicia l beca use they would be cumulative of the medical examiner’s repor

t and expected testimony reg arding the injuries. After clar ify ing that Appellant was making a g ener al objection to a ll of the autopsy photogr aphs, the trial court stated: “All rig ht. I ’m g oing to overr

ule that objection. But if y ou have specific objections to specific photos.” Appellant replied tha t he did not have a ny specific objections at that point. Wh e n th e St a

te s u b sequently offe red the autopsy photogr aphs into evidenc e, Appellant stat e d more specific objec tions to t he exhibits . Appellant objec ted to State’s Ex hibits 35, 36, and 37 as 7 irrele vant, cumulative of the photogr aphs of t h e v i ct i m at the scene , and improper bolstering

. Appellant objected to State’s Ex hibit 38 and 40 as cumulative of other evidenc e and irrelev an t 8 beca use the injuries depicted in the exhibi ts was not the cause of death. Finally , Appellant objected
to State’s Ex hibits 44 and 45 beca use they wer e g raphic , irrele vant, and prejudicia l. Thus, Appellant did not object to any of the exhibi ts as being g ruesome or inflammatory

. There fore , he has waived this part of his argument. T E X .R.A P P .P. 33.1(a)( 1). Relev ance We revie w a trial court’s decision to admit autopsy photogr aphs under the abuse of discretion standard. Davis v. State , 313 S.W .3d 317, 331 (Tex.Crim.App. 2010). A photog raph is g ener ally

I t i s n o t e n t i r e l y c l e a r w h a t A p p e l l a n t m e a n t b y t h i s s t a t e m e n t , b u t A p p e l l a n t m a y h a v e i n t e n d e d t o s t a t e t h a t 6 t w o o f t h e p h o t o g r a p h s d e p i c t e d t h e i n j u r i e s t o t h e v i c t i m ’ s v a g i n a . S t a t e ’ s E x h i b i t 3 5 i s a p h o t o g r a p h o f t h e l e f t s i d e o f t h e v i c t i m ’ s f

a c e . S t a t e ’ s E x h i b i t 3 6 i s a p h o t o g r a p h o f 7 t h e r i g h t s i d e o f t h e v i c t i m ’ s f a c e . S t a t e ’ s E x h i b i t 3 7 i s a p h o t o g r a p h o f t h e v i c t i m ’ s n e c k s h o w i n g t h e l i g a t u r e w o u n d

. S t a t e ’ s E x h i b i t 3 8 i s a p h o t o g r a p h o f t h e s t a b w o u n d t o t h e v i c t i m ’ s c h e s t

. S t a t e ’ s E x h i b i t 4 0 i s a p h o t o g r a p h 8
o f t h e s t a b w o u n d t o t h e v i c t i m ’ s b a c k

.admissible if verba l testimony about the matters d ep i ct ed in the photogr aph is also admissible.

Y oung v. State , 283 S.W .3d 854, 875 (Tex.Crim.App. 2009). A photogr aph is rele vant if it has “any tendenc y to make the exis tence of any fac t that is of conseque nce to the deter mination of the action

more probable or less probable than it would be without the evidenc e.” Flores v. State , 299 S.W .3d 843, 857 (Tex.App.--El Paso 2009, pet. ref ’d), quoting T E X .R. E V I D . 401. The identity of the victim, the extent of the victim’s injuries, and the manner and means of death are fac ts th at are of conseque nce to the deter

mination of an action. Penry v. State , 903 S.W .2d 715, 751 (Tex.Crim.App. 1995); Flores , 299 S.W .3d at 857; see W illiams v. State , 301 S.W .3d 675, 690-93 (Tex.Crim.App. 2009), cert. de nied , --- U.S. - --, 130 S.Ct

. 3411, 177 L .Ed.2d 326 (2010)( finding that photogr aphs had probative value beca

use they depicted victim’s injuries). The State had the burden to prove that Appellant intentionally and knowing cause d Rey es’ death by strang ling her about the n ec k o r by stabbing her body with a knife while in the course of committing and committing ag g ravated sexual

as s ault

. The seven autopsy photogr aphs are rele vant to the victim’s identity , the extent of her injuries, including the liga ture wound and the stab wounds to her torso a nd vag ina, the occur

renc e of an ag g ravated sexual assault, and th e ca u s e o f d ea t h. The fac t that the jury had also hear d testimony reg arding the injuries depicted does not reduc e the rele vance of the visual depiction. Shuffield v. State , 189 S.W .3d 782, 787 (Tex.Crim.App. 2006). Rule 403 Although rele vant, evidenc e may be excluded if its probative value i s s u bstantially outweig hed by the dang er of unfair prejudice , confusion of the issues, or misleading the jury , or by considerations of undue delay , or needle ss prese ntation of cumulative evidenc e. T E X .R.E V I D . 403. Rule 403 favor s the admission of rele vant evidenc e and car ries a presumption that rele vant evidenc e will be more probative than prejudicia l. Shuffield , 189 S.W .3d at 787. The term “probative value”ref

ers to the inhere nt probative forc e of an item of evidenc e-- that is, how strong ly it serve s to make

m o re o r less probable the exis tence of a fac t of conseque nce to the litigation--c oupled wit h t h e proponent’s ne ed for

that item of evidenc e. Casey v. State , 215 S.W .3d 870, 879 (Tex.Crim.App. 2007); Gigliobianco v. Stat e , 210 S.W .3d 637, 641 (Tex.Crim.App. 2006). When conducting the balanc ing test under Rule 403, the trial court deter mines whether the probative value of the evidenc e is substantially outweig hed by one or more of the c ounterva iling conside rations listed in the rule. Casey , 215 S.W .3d at 880. A court may consider many fac tors in deter mining whether the probative value of photogr aphs is substantially outweig hed by the dang er of unfair prejudice , including: the number of exhibi ts offe red, their g ruesomene ss, their detail, their siz e, whether they are in color or black- and-w hite, whether they are cl o se 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 . Davis , 313 S.W .3d at 331; Flores , 299 S.W .3d at 858. State’s Exhi bits 35 and 36 depict the victim’s fa ce a nd head. N o injuries are visible in the photos. As the prosec utor explained during t rial, the photos show the victim’s curly hair which could not be clearly seen in other photogra phs of her at t he scene. The photos allowed the jury to compar e Appellant’s descr iption of th e v ic ti m in his video-re corde d statement with the photogr aphs. The trial c ourt did not abuse its discretion by overr uling Appe llant’s Rule 403 objection. State’s Ex hibit 37 shows the external ligature wound and bruising on the victim’s neck a nd is not g ruesome. This is the only photogr aph which show s t h e ligature wound. The photogr aph aided the jury in understanding and evaluating the medical examiner’s testimony that the ligature wound was quite narr ow and could have been cause d by a thin cord

. Appellant argues that this exhibi t is inadmissible beca use it is cumulative of the medical examiner’s testimony

. The Court of Criminal Appea ls has reje cted the premise that visual evidenc e acc ompany ing oral testimony iscumulative of the testimony or that it is of insignifica nt probative value. Chamberlain v. State , 998 S

. W

. 2 d 2 3 0 , 237 (Tex.Crim.App. 1999). Visual evidenc e acc ompany ing testimony is most persua sive and often g ives the fac t finder a point of compar ison ag ainst which to test the cre dibilit y of a witness and the validity of his conclusions. Id

. W e fi n d t hat the photogr aph possessed substantial probative value and it was not outweig hed by the dang er of unfair prejudice or by the needle ss presentation of cumulative evide nce. State’s Ex hibi t 3 8 depicts a single stab wound to Rey es’ chest and it bear s the medical examiner’s case number. Whil e photos taken at the scene show the same wound from differ ent ang les, the pho t o i s n o t gru esome. As the prosec utor explained to the trial court, the medical examiner utiliz ed this p hotogr aph to show that it’s the same victim and same injury depicted in a close-up of the wound in State’s Ex hibit 31 and discussed in the autopsy repor t. The trial court did
not abuse its discretion by admitting the exhibi t. See Y oung , 2 8 3 S

. W

. 3 d at 875 (autopsy identification photo admissible beca use it ensure d the autopsy repor t would corr espond to the photo of the c orre ct victim). State’s Ex hibit 40 shows the stab wound to Rey es’ flank with a ruler next to the wound. L ike State’s Exhi bit 38, this exhibi t also includes t he case number placa rd. The sa

me wound is visible in State’s Ex hibit 78 which is an overa ll anterior view of the victim taken at the crime scene from a dis tance of several feet, but State’s Ex hibit 38 prese nts a considera bly better view of t he wound and its siz e. State’s Ex hibit 38 is a n aid to unde rstanding the nature of the victim’s wound and the jury could com p are it ag ainst the medical examiner’s testimony that the wound was cause d by a knife. See Chamberlain , 998 S.W .2d at 2 3 7

. The trial court did not abuse its discretion by

overr uling Appe llant’s objections to this ex hibit. See W illiams , 301 S.W .3d at 690-93. State’s Ex hibits 44 and 45 depict the g ruesome stab injuries to the vi ctim’s vag ina. I n thephotogr aphs, the medical examiner has sprea d apar t the victi m’s leg s in order to visualiz e the wounds. The medical examiner testified that the victim suffe red multipl e stab wounds to the vag ina

cause d by a knife. One of the wounds was deep and penetrated the vag inal wall while five other wounds wer e more superf icial. The exhibi ts in question wer e not cumulat i v e b ecause no other photogr aphs showed the vag inal wounds. Whil e the exhibi ts are cer tainly g ruesome, the y

portray nothing more than the g ruesomene ss of the injuries inflicted by Appellant. W

illiams , 301 S.W .3d
at 691. The trial court did not abuse its discretion by overr uli n g Ap p el l an t ’s objection to these exhibi ts. I ssue Four

is overrule d. HEARSAY I n I ssue Five, Appellant argues that the trial court abused its discretion by not permitting him
to cross-e x amine De tective Samanieg o about s tatements allege dly made by Michae l Daley

during the investigation. Appellant maintains that the err or deprive d him of the ability to prese nt a defe nse. Outside of t h e jury ’s prese nce, Appellant’s attorney asser ted that Daley had made an admission to police that he was the last person to see the victim alive, he had attempted to have sex with her, and he “threw her out ” when she refused. The prosecutor responded that the p o l i ce had

never spoken to Daley and he had never made these statements to the police. The prosec utor explained that a police supplement ref lected that the statements attributed to Daley was fourth-ha nd hear say and the police had never talked to him. The trial court asked defe nse counsel if Daley had

9

ever talked to Detec tive Samanieg o and counsel replied that he did not know if the police had ever talked to Daley

. Upon hear ing this, the court sustained the State’s hear say objection. I n the jury ’s prese nce, defe nse counsel asked Samanieg o whether he rec alled rea ding information that someone

A c c o r d i n g t o t h e p r o s e c u t o r , t h e s u p p l e m e n t s a i d , “ M y c o u s i n ’ s s i s t e r ’ s m o t h e r ’ s f a t h e r ’ s b e s t f

r i e n d s a y s h e 9 s a i d t h i s . ”else had seen the dece ased or had the dece ased in his apar tment that night. The trial court sustained the State’s hea

rsay objection. A criminal defe ndant has a constitutional rig ht to prese nt a complete defe nse. Miller v. State , 36 S.W .3d 503, 506 (Tex.Crim.App. 2001), citing Gilmore v. Taylor , 508 U.S. 333, 343, 113 S.Ct

. 2112, 124 L .Ed.2d 306 (1993); Crane v. Kentuck y , 476 U.S. 683, 106 S.C t. 2142, 90 L .Ed.2d 636 (1986); Calif

ornia v. Trombetta , 467 U.S. 479, 104 S.Ct

. 2528, 81 L .Ed.2d 413 (1984). A defe ndant has a fundame ntal rig ht to prese nt evidenc e of a defense a s long as the evidence is rele vant and is
not excluded by an established evidentiar y rule. Miller , 36 S.W .3d at 507. We will revie w the trial court’s de cision to ex clude f or an a buse of discr etion. Id. “He arsa y ” is a statement, other than o n e made by the decla rant while testify ing at trial, offe red in evidenc e to prove the truth of t he matter asser ted. T E X .R.E V I D . 801(d). Hea rsay is not admissible except as provided by statute, the rules of evidence, or a ru l e p ro m u l gated pursuant to statutory authority . T E X .R.E V I D . 802. Appellant contends that Da ley ’s alleg ed stateme nts are not hear say beca

use t hey wer e not offe red f

or the truth of the matter asserted but wer e ins tead offer ed
to support “Appe llant’s claimed defe nse, i.e., that he did not commit the murder of the victim in this

case .” Contrary to Appellant’s claim on appea l, the statements could not provide Appellant with a defe nse to the capital murder char g e unless the jury believed the statements. I n other words, the
statements wer e offe red to prove that Daley , not Appellant, was the last person to see Rey es alive. Appellant did not attempt to show in the trial court and he does not argue on appea l that the statements were admissi ble pursuant to som e exception to the hea rsay rule. Acc ording ly , we find that the trial court did not abuse its discretion by excluding this hear say evidenc e. I ssue Five is

overr uled. Ha ving overr

uled eac h issue prese nted on appea l, we aff irm the judgme nt of the trial
court.J uly

29, 2011 ANN CRAWFORD McCL URE, J ustice Be fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)