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

NO. 03-10-00703- CR

Jaim e Bonill a Alvarado, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 427 TH JUDICI AL DISTRICT NO. D-1 -DC- 09- 3020 40, H ONO RAB LE JIM CO RONADO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

On Aug ust 31, 2009, J aime Bonilla Alvara do was driving while intox icated and was attempting to a

void a rre st w hen he ran a red light and collided with a nother vehicle. The driver of that vehicle, Robert Be nn, was killed instantly

. Alvara do pleade d g uilty to a single count of felony murder, and a jury sentenc ed him to fifty y ear s in prison. On appea l, Alvara do contends that the trial court err oneously

admitted irrele vant and prejudicia l e vidence during the punishment pha se of the trial. We will affirm the tria l court’s judg ment.

During the punishment phase of trial, Alvara do objected to th e ad m i s s ion of an autopsy photo of Benn’s face and testi m o n y fr om the coroner concer ning the condition of Benn’s body and cause of death. Alvara do asser ted that the evidenc e was irrele vant in light of Alvara do’s g uilty plea and would only serve to inflame the jury ’s passions. The trial court overr uled Alvara do’sobjections. I n two issues on appea l, Alvara do contends that a dmission of the coroner ’s testimony

and the a utopsy photo was re versible e rror . Assuming without deciding that the t rial court should h av e ex cluded the corone r’s testimony and autopsy photo, we cannot conclude on this rec ord that any err or was harmful. A trial court’s err or in a dmitti ng evidenc e should be disre g arde d unless the err or aff ecte d the defe ndant’s substantial rig hts. See Tex. R. Ap p. P. 44.2(b). “[S] ubstantial rig hts are not aff ecte d 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.’ ” Solomon v. State , 49 S.W .3d 356, 365 (Tex. Crim. App. 2001) (quoting Johnson v. State , 967 S.W .2d 410, 417 (Tex. Crim. App. 1998)).

I n this case , the corone r’s testimony was essentially cumulative of Be nn’s autopsy repor t, which was admitted without ob j ection. See Mack v. State , 928 S.W .2d 219, 225 (Tex. App.—Aust in 1996, pet. ref ’d). The autopsy photo was cumulative of, and less g raphic than, a gru es o m e p h o t o of Be nn’s body befor e it had been extricated from his sever ely mang led vehicle, which was also admitted without objection. See id. I n addition, during closing arg ument, the State did not emphasize the challeng ed evidenc e, but rathe r focuse d on Alvara do’s admissions that he had three previous convictions for driving while intox icated; had reje cted at least two offe rs to provide him a safe ride home on that fate ful evening ; had declined an offe r to stay at a friend’ s house rathe r than driving while intox icated; and in te n ti o n a lly drove dang erously in attempting to evade police and avoid arr est. On this rec ord, we have fair assura nce that the corone r’s testimony and autopsy photo did not influence the jury or had but a

slight ef fec t. We overrule A lvara do’s two appe llate issues.

2CONCLUSION The trial c ourt’s judg ment is affirme d.

_________________________________________ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Henson a nd Rose Affir med Filed: Apr il 6, 2012 Do Not Publish

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