NUMBER 13-13-00172-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ABRAHAM JACOB PROENZA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 404th District Court

of Cameron County, Texas.

DISSENTING OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Dissenting Opinion by Justice Garza

I agree with the majority’s conclusions that the evidence was sufficient to support 

Proenza’s conviction and that the trial court’s comments during the testimony of Dr. Carol 

Grannum constituted fundamental error. However, I respectfully dissent because I 

believe that: (1) the error in making the comments was not “structural” such that no harm 

analysis is required; (2) the error was harmless under the applicable standard; and (3) 
2

Proenza’s other issues lack merit.

I. PEDIATRICIAN COMMENTS

In Blue v. State, the Texas Court of Criminal Appeals found that comments by the

trial judge were improper because they “tainted appellant’s presumption of innocence in 

front of the venire.” 41 S.W.3d 129, 132 (Tex. Crim. App. 2000) (plurality op.). The court 

of criminal appeals found that this constituted “fundamental error” which may be raised 

for the first time on appeal—yet it remanded to the appellate court for further proceedings 

rather than rendering a judgment of acquittal or remanding to the trial court for a new trial. 

Id. at 133. The appellate court’s subsequent opinion on remand consisted only of a brief 

harm analysis. See Blue v. State, 64 S.W.3d 672, 673 (Tex. App.—Houston [1st Dist.] 

2001, pet. ref’d) (“Blue II”) (concluding that the error was harmful under Texas Rule of 

Appellate Procedure 44.2(a)). The court of criminal appeals’ disposition in Blue shows

that just because an error is “fundamental” does not mean that the error is necessarily 

“structural” error that is immune to a harm analysis. See Blue, 41 S.W.3d at 133; see 

also Johnson v. State, 169 S.W.3d 223, 236 (Tex. Crim. App. 2005) (noting, in discussing 

the right of appellant to testify, that “[c]haracteriz[ation of the right] as ‘fundamental’ does 

not necessarily mean that a violation of the right is ‘structural’”). Instead, an error involving 

improper comments by a trial judge is subject to a separate harm analysis as prescribed 

in Texas Rule of Appellate Procedure 44.2(a), under which we must reverse “unless [we] 

determine beyond a reasonable doubt that the error did not contribute to the conviction 

or punishment.” TEX. R. APP. P. 44.2(a); see Blue II, 64 S.W.3d at 673; see also Lyssy v. 

State, No. 07-10-0474-CR, 2012 WL 4372936, at *1 (Tex. App.—Amarillo Sept. 21, 2012,

order) (not designated for publication) (noting that “inappropriate comments by a trial 
3

judge are not structural errors, immune from a harmless error analysis”).

Considering the entirety of the record, I would determine beyond a reasonable 

doubt that the trial court’s comments regarding her experiences with her own pediatrician 

did not contribute to Proenza’s conviction or punishment. See TEX. R. APP. P. 44.2(a). 

The comments made by the trial court may have indicated that the judge was biased as 

to the issue of whether Proenza could have taken A.J.V. for a follow-up at Su Clinica 

without parental authorization. But I do not believe that these isolated comments 

demonstrated that the judge was partial overall, or biased as to the issue of Proenza’s 

guilt in general. Cf. Johnson, 169 S.W.3d at 235 (Tex. Crim. App. 2005) (noting that lack 

of an impartial trial judge is structural error immune to harm analysis).

More importantly, the state of the evidence rendered the comments virtually 

inconsequential as to whether Proenza was guilty of the charged offense. Grannum 

testified that, if Proenza had shown up at Su Clinica without parental authorization but 

with the child in acute distress, the clinic would have called EMS and directed Proenza to 

take the child to the emergency room. Further, it was undisputed that Proenza could 

have taken A.J.V. to a hospital emergency room without parental authorization. Proenza 

did not take the child to the emergency room, and he did not offer any explanation for why 

he failed to do so. Accordingly, even if the trial court had never made the comments, the 

jury was still overwhelmingly likely to have reached the same ultimate conclusion—i.e., 

that Proenza intentionally or knowingly caused A.J.V. serious bodily injury by omission.

For the foregoing reasons, I would find that the error in this case, though 

“fundamental” such that no trial objection was required to preserve the issue on appeal, 

was not “structural” error for which no harm analysis is required. And, applying the harm 
4

analysis mandated by the rules of appellate procedure, I would find that the error is

harmless. See TEX. R. APP. P. 44.2(a); Blue, 41 S.W.3d 129, 132; Blue II, 64 S.W.3d at 

673. I would overrule this part of Proenza’s second issue.

II. “CONFESSION” COMMENTS

Because I would find that the trial court’s comments regarding her experiences 

with her own pediatrician to be harmless error, I would proceed to address the remainder 

of Proenza’s arguments on appeal.

Proenza additionally argues by his second issue that the trial court improperly 

commented on the weight of the evidence by repeatedly referring to his recorded 

interview with law enforcement as a “confession.” See TEX. CODE CRIM. PROC. ANN. art. 

38.05 (West, Westlaw through ch. 46, 2015 R.S.) (providing that, before the return of the 

verdict, the trial judge shall not “make any remark calculated to convey to the jury his 

opinion of the case”). Proenza complains that the trial court’s comments “undoubtedly 

influenced the jury’s verdict” because they “implie[d] approval of the State’s argument, 

indicate[d] disbelief in the defense’s position, and diminishe[d] the credibility of the 

defense’s approach to the case.”

In response, the State asserts, among other things, that Proenza did not preserve 

error on this issue because he did not object to the trial court’s comments at the time they 

were made. See Unkart v. State, 400 S.W.3d 94, 99 (Tex. Crim. App. 2013). Proenza 

also argues, as he did with respect to the pediatrician comments, that the error in making 

the “confession” comments was “fundamental” such that his counsel’s failure to object at 

trial did not waive the error.
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A. The Comments

The following exchange occurred in the presence of the jury before the State 

played a DVD recording of one of Proenza’s interviews with law enforcement: 

THE COURT: Let me explain this to the jury. Ladies and gentlemen of 

the jury, the original confession was recorded on a VHS 

tape. Y’all are familiar with a VHS tape? All right. Let the 

record indicate that all of the jurors nodded affirmatively. 

Of course, technology has improved from VHS to digital, 

and so [defense counsel] and his client have seen the 

VHS tape. Today the State appears with it on a DVD or 

a CD player.

[Prosecutor]: Yes, Your Honor.

THE COURT: On a CD player. And so [defense counsel], without 

seeing this data on the CD or DVD, is unable to verify that 

it’s the same information. Although I have not admitted it, 

I’m going to play it, because the only way for [defense 

counsel] to see that it hasn’t been changed, as far as the 

contents is concerned, other than the form, is by playing 

it. And so we’re going to play it and then we’ll ask 

[defense counsel] if that’s the same confession that he 

saw when it was on VHS tape.

At first, the DVD was inaudible, and attempts were made to find an alternate player. After 

the matters were resolved, the trial court said: “All right. So let’s rewind to the beginning 

and start playing that. And if it doesn’t get any better, then you don’t have a confession.” 

The recording was played in its entirety and admitted, without objection, as State’s Exhibit 

33.

The only other reference to Exhibit 33 as a “confession” was by defense counsel 

when he asked Investigator Valerio the following question during his cross-examination: 

“You said a while ago that in the interview, or confession, as you call it, on Mr. Proenza, 

that he was not concerned about the child?” Investigator Valerio responded, “That’s 

correct.”
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B. Discussion

“A confession is defined as a voluntary declaration by one person to another that 

the declarant has committed a crime.” Terry v. State, 420 S.W.2d 945, 947 (Tex. Crim. 

App. 1967) (internal quotations and citations omitted). A confession contains “a direct 

acknowledgement or responsibility for a crime or an admission of incriminating facts.” 

See id. (citing Robinson v. State, 142 Tex. Crim. 636, 639, 155 S.W.2d 811, 812 (1941) 

(per curiam)); Cordova v. State, 754 S.W.2d 502, 505 (Tex. App.—San Antonio 1988, no 

pet.).

During the interview on which this argument is based, Proenza stated, among 

other things, the following: (1) at three months, A.J.V. looked fine; (2) they tried to feed 

the child; (3) A.J.V. kept “getting skinnier and skinnier”; (4) compared to other “kids,” 

A.J.V. was small; (5) Proenza discussed this with his wife who told him that A.J.V. was 

like his brothers; (6) after drinking four or five ounces, A.J.V. would gag and then “it could 

come out”; (7) Proenza wondered if A.J.V. was healthy; (8) he was “trying to tell [his] wife,” 

and was waiting for papers from his sister-in-law; (9) A.J.V. vomited for about a month

beginning in the middle of July; (10) Proenza asked family members and friends if that 

was normal; (11) A.J.V. accepted three eight-ounce bottles of Similac a day and would 

just sip others and then drop them; (12) A.J.V. missed his August appointment at the clinic

because Proenza did not have the papers to take him; (13) A.J.V. had a sad demeanor; 

(14) when asked if A.J.V. would have been attended to at the hospital if Proenza had 

taken him there, Proenza answered, “Yes, Sir”; (15) Proenza agreed that he should have 

taken A.J.V. to the doctor and that A.J.V. was his responsibility; and (16) Proenza stated 
7

that during the afternoon of the day of his death, A.J.V. “was doing fine. He looked sick, 

not that he was actually dying,” like he had the flu or a cold.

Although the State and Proenza referred to this recording as either a statement or 

an interview, I believe that the statement was in the nature of a confession because it 

contained numerous admissions of incriminating facts. See Terry, 420 S.W.2d at 947 

(citing Robinson, 142 Tex. Crim. at 639, 155 S.W.2d at 812); Cordova, 754 S.W.2d at 

505. By referring to Proenza’s recorded statement as a confession, the trial court did not 

express its approval of the State’s argument, indicate disbelief in Proenza’s position, or 

diminish the credibility of his approach to the case, as Proenza urges. See Simon v. 

State, 203 S.W.3d 581, 590 (Tex. App.—Houston [14th Dist.] 2006, no pet.); see also 

TEX. CODE CRIM. PROC. ANN. art. 38.05. Instead, the court merely described the statement 

appropriately as a confession and did not violate article 38.05 by impermissibly 

commenting on the weight of the evidence. See TEX. CODE CRIM. PROC. ANN. art. 38.05. 

Because I would conclude that the trial court’s use of the word “confession” was not a 

comment on the weight of the evidence, I would not reach Proenza’s fundamental-error 

argument on this matter. I would overrule Proenza’s second issue in its entirety.

III. MOTION TO RECUSE

By his third issue, Proenza complains that his motion to recuse the trial judge 

should have been granted because she was partial and biased. See TEX. R. CIV. P.

18b(b)(1–2). On appeal, Proenza claims that he established that the impartiality of the 

trial judge might reasonably be questioned and that she was biased against him based 

on the following: (1) the trial judge questioned his decision to hire a new attorney prior to 

trial and stated on the record that Proenza could not hire a different attorney if he became 
8

dissatisfied with his new attorney; and (2) during her political campaign, the trial judge 

“publicly chastised her opponent for giving defendants probation in child abuse cases.”

See id. The State claims, in relevant part, that the motion to recuse was properly denied 

because Proenza failed to timely file his motion. See TEX. R. CIV. P. 18a(b)(1)(A), (B)(ii). 

I agree with the State.

A. Applicable Law and Standard of Review

A motion to recuse “must be filed as soon as practicable after the movant knows 

of the ground stated in the motion.” TEX. R. CIV. P. 18a(b)(1)(A). In addition, the motion 

must not be filed “after the tenth day before the date set for trial . . . unless, before that 

day, the movant neither knew nor reasonably should have known . . . that the ground 

stated in the motion existed.” TEX. R. CIV. P. 18a(b)(1)(B)(ii). These procedural 

requirements are mandatory, and a party who fails to comply waives his right to complain 

of a judge's failure to recuse herself. Vickery v. Tex. Carpet Co., Inc., 792 S.W.2d 759, 

763 (Tex. App.—Houston [14th Dist.] 1990, writ denied) (citing Gaines v. Gaines, 677 

S.W.2d 727, 730 (Tex. App.—Corpus Christi 1984, no writ)).

On appeal, we review the denial of a motion to recuse under an abuse of discretion 

standard. TEX. R. CIV. P. 18a(j)(1)(a). The test for abuse of discretion is not whether, in 

the opinion of the reviewing court, the facts present an appropriate case for the trial court's 

action; rather, it is a question of whether the trial court acted without reference to any 

guiding rules or principles. Mosley v. State, 141 S.W.3d 816, 834 (Tex. App.—Texarkana 

2004, pet. ref’d).
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B. Substitution of Counsel

As a basis for his motion to recuse, Proenza asserted that the trial judge violated 

his right to retained counsel of choice. Proenza complains of the following comments 

made by the trial judge on August 30, 2012, at the hearing on his motion to substitute 

counsel:

And, Mr. Proenza, the way I feel about cases is that—and what I try to 

prevent in my Court is lawyers—firing one group and hiring another and 

then in three months you fire Mr. Gonzales and hire somebody else and you 

continue this case. I believe that justice—trial delayed is justice delayed. 

And so we have to finish this case. And so that is my concern. And so I’m 

not going to put up with that from you. So are you sure that you want to 

move from the Garzas to Mr. Gonzales? Because you’re going to have to 

stay with Mr. Gonzales regardless of how this turns out two or three months 

down the road, “Oh, I don’t like Mr. Gonzales, I want to go back to the 

Garzas, or somebody else,” you're going to be stuck with the lawyer you 

have. Because I’m not going to allow lawyers—defendants to just keep 

moving around from lawyer to lawyer.

After the trial court made the foregoing comments, she granted Proenza’s motion to 

substitute counsel. During the hearing, the trial judge also set a trial date for December 

3, 2012 and announcements for November 29, 2012. Proenza did not file his motion to 

recuse—which was based, in part, on the trial judge’s comments regarding his right to 

hire new counsel—until November 28, 2012. Proenza knew of this ground on August 30, 

2012, but chose not to file a motion to recuse on that basis until three months later, within 

five days of the scheduled trial setting. See TEX. R. CIV. P. 18a(b)(1)(A), (B)(ii).

C. Political Advertisements

Proenza also moved for recusal on the basis that the trial judge, while running for 

office, advertised that defendants in child cases needed tougher punishments. Proenza 

specifically complained that the trial judge “repeatedly attack[ed] and criticize[d] the 

incumbent [j]udge for having given deferred probation to several defendants who had 
10

been charged with some type of offense involving children.” Yet, as Proenza noted in his 

motion to recuse, these political advertisements were run in 2008 during the trial judge’s 

election campaign.

Proenza was indicted on April 14, 2010, arraigned on May 6, 2010, participated in 

pretrial hearings, and filed numerous pretrial motions during 2012, including a motion for 

discovery and an application for probation and election to have the jury assess 

punishment, both of which were filed after substitution of counsel. Proenza did not file 

his motion to recuse until November 28, 2012, although he knew or reasonably should 

have known of this ground before then. See TEX. R. CIV. P. 18a(b)(1)(B)(ii).

D. Discussion

Based on the above, I would conclude that the trial court did not abuse its discretion 

by denying Proenza’s motion to recuse, because the motion was not timely filed. See 

TEX. R. CIV. P. 18a(j)(1)(A). The court acted with reference to the procedural rules set out 

in Rule 18a. See Mosley, 141 S.W.3d at 834; see also TEX. R. CIV. P. 18a(b)(1)(A), (B)(ii). 

Because the rule 18a procedural requirements are mandatory, see TEX. R. CIV. P.

18a(b)(1)(A), (B)(ii), and because Proenza failed to comply with those requirements, he 

has waived his right to complain of the trial judge's failure to recuse herself.1 See Vickery, 

792 S.W.2d at 763 (citing Gaines, 677 S.W.2d at 730). I would overrule Proenza’s third 

issue.

 

1 Because my discussion of the procedural requirements of rule 18a is dispositive of this issue, I

do not address the merits of Proenza’s motion to recuse. See TEX. R. CIV. P. 47.1.
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IV. AUTOPSY PHOTOGRAPHS

By his fourth issue, Proenza contends that the trial court abused its discretion when 

it admitted State’s Exhibits 19 through 22 because they were “gruesome” autopsy photos 

which only served to inflame the jury. I disagree.

A. Applicable Law

Evidence is relevant if it has “any tendency to make the existence of any fact that 

is of consequence to the determination of the action more probable or less probable than 

it would be without the evidence.” TEX. R. EVID. 401; Montgomery v. State, 810 S.W.2d 

372, 386 (Tex. Crim. App. 1990) (op. on reh’g) (en banc). “Evidence which is not relevant 

is inadmissible.” TEX. R. EVID. 402. But even evidence that is relevant may be excluded 

“if its probative value is substantially outweighed by a danger of one or more of the 

following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or 

needlessly presenting cumulative evidence.” TEX. R. EVID. 403. And while evidence 

offered by an opposing party will inherently be prejudicial, “unfair prejudice” results when 

the evidence tends to cause a decision to be based on an improper basis, such as 

emotion, “without regard to the logical probative force of the evidence.” Casey v. State, 

215 S.W.3d 870, 879–80, 883 (Tex. Crim. App. 2007); Reese v. State, 33 S.W.3d 238, 

240 (Tex. Crim. App. 2000) (explaining that unfair prejudice occurs when evidence 

provides “an undue tendency to suggest that a decision be made on an improper basis”). 

Specific as to photographs, “[i]f there are elements of a photograph that are genuinely 

helpful to the jury in making its decision, the photograph is inadmissible only if the 

emotional and prejudicial aspects substantially outweigh the helpful aspects.” Erazo v. 

State, 144 S.W.3d 487, 491–92 (Tex. Crim. App. 2004).
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B. Standard of Review

The decision to admit or exclude photographic evidence is generally left to the 

sound discretion of the trial court. Prible v. State, 175 S.W.3d 724, 734 (Tex. Crim. App. 

2005) (citing Erazo, 144 S.W.3d at 488; Williams v. State, 958 S.W.2d 186, 195 (Tex. 

Crim. App. 1997) (en banc)).

The court of criminal appeals has provided a nonexclusive list of four factors to 

consider when analyzing a challenge to evidentiary rulings under rule 403: (1) the 

probative value of the evidence; (2) the extent that the evidence may “impress the jury in 

some irrational, but nevertheless indelible way”; (3) the time needed to develop the 

evidence; and (4) the proponent’s need for the evidence. Shuffield v. State, 189 S.W.3d 

782, 787 (Tex. Crim. App. 2006); Montgomery, 810 S.W.2d at 389–90. Additionally, when 

deciding whether autopsy photographs are unfairly prejudicial, we should consider the 

number of photographs, the size of the photographs, whether they are in color or black 

and white, the detail depicted in the photo, the gruesomeness of the photo, whether the 

body is naked or clothed, and whether the body had been altered by the autopsy in a way 

that would be detrimental to the appellant. Shuffield, 189 S.W.3d at 787; Prible, 175 

S.W.3d at 734; Reese, 33 S.W.3d at 241.

C. Discussion

Outside the presence of the jury, the State offered color autopsy photographs that 

depicted A.J.V.’s intestines and brain. The State explained that it offered these exhibits 

to show malnutrition and not some other cause of death. Defense counsel objected to 

“the grossness of [Exhibits 19 through 22], which actually would just inflame the minds of 

the jury and be used for no other purpose than for that.” The trial court overruled 
13

Proenza’s objection. When the State offered Exhibits 19 through 22 before the jury, 

defense counsel again objected on the same bases: prejudice and relevance. The trial 

court again overruled Proenza’s objections and admitted the exhibits.

1. Relevance

Autopsy photographs are generally admissible as relevant in helping the medical 

examiner explain the cause of death when there is some disputed fact concerning the 

victim’s death. See Rayford v. State, 125 S.W.3d 521, 530 (Tex. Crim. App. 2003) (finding 

no error in the admission of autopsy photographs that showed pre-death injuries 

consistent with kidnapping theory); Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 

2001) (explaining that the autopsy photographs in a capital murder case showed the 

child’s extensive internal injuries which could not have been caused in the manner

defendant had explained to them). The controversies in the present case were how A.J.V. 

died and whether Proenza failed to feed A.J.V. or to seek medical care for him and, thus, 

caused his death.

Proenza argues that the photographs of A.J.V.’s internal organs were not 

necessary to aid the jury in determining the cause of death. Yet according to Dr. Farley’s 

testimony, Exhibit 19 was a photograph of A.J.V.’s intestine “that you can actually see 

through.” She explained that the intestine is “usually covered in yellow adipose tissue or 

fatty tissue.” But in this case “[i]t’s not covered with fat as we would get in—in other 

infants,” and it is “a sign of malnutrition, severe malnutrition, because it’s using the fat 

source of the body to—to compensate for the fact that it’s not getting food . . . .” Regarding 

Exhibit 20, Dr. Farley testified that it was “an up-close picture of the brain” showing a 

“subarachnoid hemorrhage,” most likely a sign of trauma. Although something happened 
14

to the child’s head, in Dr. Farley’s opinion, “it did not cause the death of the child.” She 

further explained that Exhibit 21 was the large and small intestine “after it was opened.” 

Dr. Farley testified that although there is “usually a pasty material throughout the bowel,” 

she found “almost nothing left in the intestine at all.” The only thing she “actually found 

in the bowel was a pepper that was green, a little piece of pepper,” as seen in Exhibit 22. 

Proenza claimed that A.J.V. was fed and that he took care of A.J.V. However, the 

photographs supported the medical examiner’s explanation as to the cause of death 

being dehydration and malnutrition.

Based on the above, I would conclude that the photographs admitted as State 

Exhibits 19 through 22 were relevant to explain the State’s theories of the case and were 

probative of disputed facts. See TEX. R. EVID. 401, 402. They were fully explained to the 

jury as part of Dr. Farley’s examination of the alleged injury. And there were elements of 

each photograph, discussed above, that would have been “genuinely helpful to the jury 

in making its decision.” See Erazo, 144 S.W.3d 487.

2. Unfair Prejudice

Having determined that the evidence was relevant, I turn to whether the danger of 

unfair prejudice substantially outweighed the probative value; in other words, whether “the 

emotional and prejudicial aspects [of the photographs] substantially outweigh the helpful 

aspects.” Id. at 491–92; see TEX. R. EVID. 403.

Relying on Prible, Proenza argues that we should follow its holding that autopsy 

photographs of children’s organs are unfairly prejudicial and should not be admitted. See 

175 S.W.3d at 736. Proenza notes that, in Prible, the medical examiner testified that the 

cause of each child’s death was smoke inhalation, which was supported by an autopsy 
15

report; therefore, the photographs were not needed by the State. Id.; see TEX. R. EVID.

403 (excluding relevant evidence if its probative value is substantially outweighed by, 

among other things, the “needless presentation of cumulative evidence”).

Proenza’s reliance on Prible is misplaced. The appellant therein was charged with 

the deaths of the children’s parents, not the deaths of the children. Prible, 175 S.W.3d at 

726. And no one disputed that the children died of smoke inhalation, which was the 

ostensible purpose for the children’s autopsy photographs being admitted. Id. at 736. 

Instead, the Prible Court concluded that

the minimal probative value of the autopsy photographs [of the children], if 

any, was substantially outweighed by the danger of unfair prejudice,

confusion of the issues—by unduly focusing the jury’s attention upon the 

deaths of the children rather than the deaths of their parents for which 

[Prible] was charged—and needless presentation of cumulative evidence.

Id. Based on this reasoning, the Prible Court determined that “[t]he trial court abused its 

discretion in admitting the [autopsy photographs of the children] over appellant’s [r]ule 

403 objection.” Id. The present case is distinguishable because Proenza complains of 

the admission of autopsy photographs of A.J.V., the child that he was accused of seriously 

injuring. And Proenza’s only rule 403 objection was based on undue prejudice; i.e., that 

the exhibits would inflame the minds of the jury. See TEX. R. EVID. 403. Proenza did not 

object that the probative value of the autopsy photographs was substantially outweighed 

by the danger of confusing the issues or needlessly presenting cumulative evidence, as 

did the appellant in Prible. See id.; Prible, 175 S.W.3d at 736.

Of the four non-exclusive factors considered when examining a rule 403 challenge, 

I have already concluded that the autopsy photographs were relevant to explain the 

State’s theories of the case and probative of disputed facts; thus, consideration of the first 

factor weighs against a finding of abuse of discretion. See Shuffield, 189 S.W.3d at 787; 
16

Montgomery, 810 S.W.2d at 389–90; see also TEX. R. EVID. 402. I have also concluded 

that there were elements of each photograph that would genuinely help “the jury in making 

its decision.” See Erazo, 144 S.W.3d 487. And “[v]isual 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 

v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999) (en banc). For these reasons, I

further conclude that the State needed the autopsy photographs; therefore, consideration 

of the fourth factor also weighs against a finding of abuse of discretion. See Shuffield, 

189 S.W.3d at 787; Montgomery, 810 S.W.2d at 389–90. As to the third factor, a review 

of the record reveals that the State needed little time to develop a foundation for 

introduction of the challenged photographs; this weighs also against a finding of abuse of 

discretion. See Shuffield, 189 S.W.3d at 787; Montgomery, 810 S.W.2d at 389–90.

Proenza asserts that the admission of Exhibits 19 through 22 “would inflame the 

minds of the jury.” By his assertion, he is arguing that the second Shuffield factor weighs 

in favor of exclusion. See Shuffield, 189 S.W.3d at 787. The record contains 81⁄2 x 11 

color photocopies of the exhibits, but the record does not reflect the size of the originals. 

See id.; Prible, 175 S.W.3d at 734; Reese, 33 S.W.3d at 241. Although the photographs 

may have been unpleasant to view, they accurately represented the internal organs of 

the child as damaged by Proenza’s fatal omissions. See Shuffield, 189 S.W.3d at 787; 

Prible, 175 S.W.3d at 734; Reese, 33 S.W.3d at 241. And while the photographs were

graphic and reflected alterations of the organs due to autopsy procedures, I do not believe 

that they were likely to have created an emotional response that substantially outweighed 

the helpful aspects of the photographs. See Erazo, 144 S.W.3d at 491–92; see also 
17

Casey, 215 S.W.3d at 879–80, 883. Instead, the prejudicial effect of the photographs, if 

any, did not substantially outweigh their probative value. See TEX. R. EVID. 403; see also 

Erazo, 144 S.W.3d 487; Shuffield, 189 S.W.3d at 787; Prible, 175 S.W.3d at 734; cf.

Reese, 33 S.W.3d at 240–44 (concluding that the probative value of photos of a murdered 

woman and her unborn child lying in a coffin was substantially outweighed by unfair 

prejudice). A trial court does not abuse its discretion simply because it admits gruesome 

photos. Paredes v. State, 129 S.W.3d 530, 540 (Tex. Crim. App. 2004); Sonnier v. State, 

913 S.W.2d 511, 519 (Tex. Crim. App. 1995) (en banc). I would conclude that the trial 

court did not abuse its discretion when it admitted the State’s Exhibits 19 through 22 into 

evidence; therefore, I would overrule Proenza’s fourth issue.

V. CONCLUSION

Because I would affirm the trial court’s judgment, I respectfully dissent.

DORI CONTRERAS GARZA,

Justice

Publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

23rd day of July, 2015.