author: SUE WALKER, Justice. LEE ANN DAUPHINOT, Justice,

text:
    Kesey Darnell FRANK, Appellant, v. The STATE of Texas, State.
    No. 2-04-069-CR.
    Court of Appeals of Texas, Fort Worth.
    Dec. 22, 2005.

      D. Keith Orsburn, Denton, for Appellant.
    Bruce Isaacks, Crim. Dist. Atty., Kathleen Walsh, Paige McCormick, Kristin Kidd, Asst. Dist. Attys., Denton, for the State of Texas.
    PANELA: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
   OPINION

SUE WALKER, Justice.

I. Introduction

A jury convicted Appellant Kesey Darnell Frank of capital murder, and the trial court sentenced him to life in prison. In six points, Frank complains that the trial court erred by overruling his motion to suppress, motion for an instructed verdict, and motion for new trial; by excluding a videotape from evidence; by admitting photographs of the deceased victim; and by making a misstatement of law in the jury charge. We will affirm.

II. Factual Background

On September 15, 2002, Frank, Adalber-to Ponce-Duron, Jerry Jackson, Justin Ebert, and Stephanie Tacina met at a friend’s apartment in the Mack Park Apartments in Denton to watch a football game. Around halftime, Jackson and a few others left to go to the store. Before Jackson left, however, he and Tacina had an argument, and a “scuffle” occurred in the apartment complex’s parking lot. Ta-cina suffered an injury to her head. Jackson left for the store, leaving Tacina in the parking lot.

A resident of the apartments noticed Tacina staggering and holding her head and stomach. The resident went to assist Tacina and after discovering a sizeable knot on the back of Tacina’s head, the resident called 911.

Jackson and his acquaintances returned to the apartment complex to find an ambulance, the fire department, and a police car in the parking lot. The police handcuffed and questioned Jackson, Frank, and Ebert. About this time, Amanda Doyle and Tymeshia Turner arrived. Police ultimately arrested Jackson but released Frank and Ebert. Frank, Ponce-Duron, Doyle, Turner, and Ebert, who were all present in the parking lot, were visibly upset that Jackson had been arrested and were overheard saying that they intended to “beat up” Taeina.

Frank, Ponce-Duron, Doyle, Turner, and Ebert left the apartment complex in Doyle’s white four-door Hyundai. They decided to find out which hospital Taeina had been taken to so that Doyle could beat her up. On the way to the hospital, they discussed what they planned to do with Taeina after the assault. After locating Taeina at Denton Regional Hospital, they learned that she would be released in about an hour. They decided to go to Ebert’s residence to pick up some money for marijuana and to then look for a place to leave Taeina; Ponce-Duron remained at the hospital.

After leaving Ebert’s residence, the group stopped briefly at the house of one of Frank’s relatives, and Frank retrieved a gun; the gun turned out to be fake. The group searched for a suitable place to leave Taeina after the assault. They pulled into a driveway, but deemed the location unsatisfactory, and then pulled into a trailer park across the street. While at the trailer park, Ebert picked up a brick and placed it on the floorboard of the car. The group then returned to the hospital.

At the hospital, Doyle, Ebert, and Frank stood behind a sign and waited for Turner to pick up Taeina and Ponce-Duron (they thought Taeina might not enter the car if she saw Doyle), and Frank broke the brick that Ebert had found at the trailer park into two halves. Turner picked up Taeina and Ponce-Duron and then pulled up where Doyle, Ebert, and Frank were waiting, allowing them to hop into the car. After Frank got in the car, he struck Taeina on the head with one of the pieces of brick and then with his fists. Taeina screamed, but no one responded. As they were driving, Frank and Ponce-Duron continued to strike Taeina, pushing her down to the floorboard. Doyle turned around and also struck Taeina a few times from her position in the front passenger seat. Taeina was bleeding from her head, and a “large amount” of blood collected in the back seat.

The group eventually ended up at the residence of one of Doyle’s friends, Tasia Hoffman, between 11:00 p.m. and 12:00 a.m. Hoffman looked inside of Doyle’s car and saw Frank, Ponce-Duron, Ebert, and Taeina. Hoffman observed that Tacina’s back was bruised, that she had burn marks on her, and that her hair was bloody looking. Turner said that they had beaten up Taeina because she had caused Jackson to be arrested, and Doyle asked Hoffman if Doyle could dump Tacina’s body in the field near Hoffman’s home. Hoffman’s father appeared, however, and instructed Hoffman to come back inside her house. The group then left.

Frank, Ponce-Duron, Doyle, Turner, and Ebert drove around for some time before pulling into a field. They all exited the car, and Ponce-Duron pulled Taeina out of the car and tried to break her neck. Frank ripped off Tacina’s shirt, wrapped it around her neck, and also tried to break her neck. Both were unsuccessful. Doyle went to the car and removed a pair of scissors from the glove compartment. Ponce-Duron cut Tacina’s throat with the scissors and stabbed her in the stomach multiple times. The group departed, leaving Tacina’s body in the field.

The group then drove to Doyle’s house where Frank and Ponce-Duron showered and changed clothes. They collected the items that had Tacina’s blood on them and placed the items in a trash bag. They then went to a car wash and cleaned Doyle’s car. Frank and Ponce-Duron cleaned the back seat while Doyle cleaned the front seat. Turner then took Frank home.

The next morning, Ebert, Doyle, Turner, and Ponce-Duron picked up cleaning supplies from a friend of Ebert’s and some bleach from Turner’s house and went to Ponce-Duron’s house where Ponce-Duron cleaned Doyle’s car some more, removing portions of it that were blood stained. They burned the trash bag containing the bloody items.

The Lewisville Police Department assigned Detective Edward Barrett to be the lead detective on the case. During the course of his investigation, Detective Barrett found a piece of brick in Ponce-Du-ron’s back yard and another piece of brick near the entrance of Denton Regional Hospital. A subsequent analysis of both pieces showed that they matched; the pieces had previously formed one brick. The brick piece discovered in Ponce-Du-ron’s back yard contained trace evidence, including one piece of hair. Subsequent microscopic analysis of the hair found on the brick and a sample hair taken from Tacina’s body established that the hair on the brick belonged to Tacina. Blood samples taken from Doyle’s car also matched a known sample of Tacina’s blood taken during her autopsy.

The medical examiner listed Tacina’s cause of death as multiple sharp force injuries. Tacina’s autopsy showed that her trachea had been incised, or cut through completely, possibly with a pair of scissors. She also had eleven stab wounds to her abdomen, a burn over her left cheek, and defensive wounds.

III. Motion for New TRial

Frank filed a motion for new trial. In a single sentence, he alleged, “Newly discovered evidence has been obtained concerning the lack of truthfulness of a key State witness, namely Justin Ebert.” Frank attached the affidavit of Omari McKinley to his motion for new trial. McKinley’s affidavit is two paragraphs and states that he met Ebert several years ago, that Ebert made statements “indicating that in return for his cooperation with law enforcement authorities he would not be held criminally responsible for the harm to Stephanie Ta-cina,” and that Ebert had made “several inconsistent statements ... regarding the level of his involvement in the [offense].” Subsequently, the State filed a stipulation of evidence indicating its discovery that Ebert, not Frank, obtained the brick from the trailer park. Frank alleges and the State agrees, that after the State filed this stipulation of evidence the attorneys met with the trial court judge in chambers to bring the stipulation of evidence to her attention. Frank’s motion for new trial was nonetheless overruled by operation of law.

In his first issue, Frank argues that “[t]he trial court violated Appellant’s federal and state constitutional right to a fair trial by overruling his Motion for New Trial.” Frank does not claim that the trial court erred by denying him a hearing on his motion for new trial. Compare Wallace v. State, 106 S.W.3d 103, 108 (Tex.Crim.App.2003) (holding that when defendant claims error in failure to grant motion for new trial hearing, appellate court must address that issue first). Frank does not claim that McKinley’s cursory affidavit or the statements set forth therein satisfied the requisites necessary to entitle him to a new trial based on newly discovered evidence. See Keeter v. State, 74 S.W.3d 31, 37 (Tex.Crim.App.2002) (setting forth four requisites). Instead, Frank argues that after the State filed its stipulation of evidence — indicating Ebert’s admission that in fact he, not Frank, picked up the brick at the trailer park — the trial court should have granted a new trial based on newly discovered evidence.

A new trial shall be given to an accused where material evidence favorable to the accused has been discovered since trial. Tex.Code Crim. Proc. Ann. art. 40.001 (Vernon Supp.2005). A trial court has discretion to decide whether to grant a new trial based upon newly discovered evidence, and its ruling will not be reversed absent an abuse of discretion. Keeter, 74 S.W.3d at 37. The trial court’s discretion extends to situations in which the newly-discovered evidence is the retraction of a witness’s testimony. Id. To establish an abuse of discretion in the failure to grant a new trial based on newly discovered evidence, the appellant must show that (1) the evidence was unknown to him before trial, (2) his failure to discover the evidence was not due to a lack of diligence, (3) it is probably true, and its materiality will probably bring about a different result upon a new trial; and (4) it is competent, not merely cumulative, corroborative, collateral, or impeaching. Id. at 36-37. Motions for new trial based upon newly discovered evidence are not favored by the courts and are viewed with great caution. Drew v. State, 743 S.W.2d 207, 225 (Tex.Crim.App.1987).

On appeal, Frank makes no effort to show that Ebert’s changed testimony about who picked up the brick in the trailer park would probably bring about a different result upon a new trial. The evidence established that Frank, Ponce-Duron, Doyle, Turner, and Ebert were together in Doyle’s vehicle when they pulled into the trailer park and the brick was obtained. Ebert’s false testimony only concerned who picked up the brick. It did not negate the evidence that Frank nevertheless used a piece of that brick to strike Tacina on the head, causing her serious injury. Ebert’s perjury also does not discount or negate the evidence that Frank participated in the plan to kidnap Tacina from the hospital, that Frank struck Tacina with his hands while in Doyle’s vehicle, that Frank tried to break Tacina’s neck (or strangle her) with her own shirt just before Ponce-Duron cut her throat, and that Frank disposed of his bloody clothes and helped Ponce-Duron clean Tacina’s blood out of Doyle’s vehicle. Because the record before us does not establish that Ebert’s new testimony would probably bring about a different result, we hold that the trial court did not abuse its discretion by permitting Frank’s motion for new trial to be overruled by operation of law. See Keeter, 74 S.W.3d at 36-37. We overrule Frank’s first point.

IV. Motion FOR InstRucted VeRdict

In his second point, Frank contends that the trial court erred by denying his motion for instructed verdict. Frank argues that the “evidence did not support the position that the Appellant at any point desired the death of’ Tacina and that the evidence was insufficient to prove that he “intended or participated as a party in the death of’ Tacina.

A. Standard of Review

A challenge to the denial of a motion for instructed verdict is actually a challenge to the legal sufficiency of the evidence. McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App.), cert. denied, 522 U.S. 844, 118 S.Ct. 125, 139 L.Ed.2d 75 (1997); Franks v. State, 90 S.W.3d 771, 789 (Tex.App.-Fort Worth 2002, no pet.). In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App.2004).

This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex.Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000).

B. Capital Murder and Law of Parties

The law of parties applies to the offense of capital murder, and a person commits capital murder if he intentionally or knowingly causes the death of an individual and intentionally commits the murder in the course of committing or attempting to commit, among other things, kidnapping, obstruction, or retaliation. Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003), § 19.03(a)(2) (Vernon 2003); Johnson v. State, 853 S.W.2d 527, 534 (Tex.Crim.App.1992), cert. denied, 510 U.S. 852, 114 S.Ct. 154, 126 L.Ed.2d 115 (1993).

Under the law of parties, “[a] person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.” Tex. Penal Code Ann. § 7.01(a) (Vernon 2003). A person is “criminally responsible” for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a)(2). Evidence is sufficient to convict under the law of parties where the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.) (op. on reh’g), cert. denied, 519 U.S. 1030, 117 S.Ct. 587, 136 L.Ed.2d 516 (1996). In determining whether a defendant participated in an offense as a party, the fact finder may examine the events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and common design to commit the offense. Id.; Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App.1985), cert. denied, 476 U.S. 1101, 106 S.Ct. 1942, 90 L.Ed.2d 352 (1986).

Further, section 7.02(b) of the penal code provides

[i]f, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

Tex. Penal Code Ann. § 7.02(b).

The law of parties need not be pled in the indictment, Marable v. State, 85 S.W.3d 287, 287 (Tex.Crim.App.2002), and circumstantial evidence may be used to prove party status. Cordova, 698 S.W.2d at 111.

C. Evidence Sufficient To Convict Under Law of Parties

Here, the court’s charge to the jury included a charge on the law of parties following sections 7.02(a)(2) and 7.02(b) of the penal code, and the jury returned a verdict finding Frank guilty of capital murder. Thus, the jury concluded either (1) that Frank intentionally promoted or assisted in the commission of Tacina’s murder in the course of committing or attempting to commit the offense of kidnapping, obstruction, or retaliation or, (2) that in facilitating a conspiracy to commit kidnapping, aggravated kidnapping, aggravated assault, obstruction, or retaliation, Ponce-Duron intentionally caused the death of Tacina and that this act was committed in furtherance of the conspiracy and should have been anticipated by Frank.

Before addressing the sufficiency of the evidence, we will address an argument that Frank appears to assert within the context of this second point, specifically, that the trial court should have granted his motion for instructed verdict because he did not have the intent to kill Tacina. To convict one of capital murder as a party under section 7.02(a)(2), the State need only prove that the defendant harbored the specific intent to promote or assist the commission of an intentional murder. Lawton v. State, 913 S.W.2d 542, 555 (Tex.Crim.App.1995), cert. denied, 519 U.S. 826, 117 S.Ct. 88, 136 L.Ed.2d 44 (1996), overruled on other grounds, Mosley v. State, 983 S.W.2d 249, 263 (Tex.Crim.App.1998). The State does not have to show that the party also had the specific intent to kill. Likewise, section 7.02(b) expressly allows one to be convicted as a party to a felony committed by a co-conspirator even though the accused party has no intent to commit that felony. Tex. Penal Code Ann. § 7.02(b); Snow v. State, 721 S.W.2d 943, 949 (Tex.App.-Houston [1st Dist.] 1986, no pet.) (reasoning absence of intent to kill irrelevant to conviction under law of parties). Because the court charged Frank under the law of parties, the State was not required to show that he had the intent to kill Tacina. See Andrews v. State, 744 S.W.2d 40, 51-52 (Tex.Crim.App.1987), cert. denied, 488 U.S. 871, 109 S.Ct. 182, 102 L.Ed.2d 151 (1988) (“[W]e strongly disagree with appellant’s claim that ... when the State is relying upon the provisions of Section 7.02(a)(2) and (b) for a conviction for Capital Murder by complicity responsibility, one or more of the above culpable mental states ... must be proved by the evidence, beyond a reasonable doubt. As it now stands, our statutes do not require any of these culpable mental states to be proved_”); Carmona v. State, 76 S.W.3d 29, 31-33 (Tex.App.-Amarillo 2001, pet. ref'd) (“[W]e decline appellant’s invitation to engraft new language onto Section 7.02(a)(2) to require that a person must have specific intent to kill in order to be criminally responsible for actions of another in committing murder as set out in Section 19.02(b)(2).”); see also Springer v. State, No. 07-95-0303-CR, 1997 WL 184726, *1-2 (Tex.App.-Amarillo April 16, 1997, no pet.) (not designated for publication); Batiste v. State, No. 01-96-01480-CR, 1998 WL 418124, *1-2 (Tex.App.-Houston [1st Dist.] July 23, 1998, pet. refd) (not designated for publication).

Turning to his sufficiency argument, the evidence shows that Frank, Doyle, Turner, Ponce-Duron, and Ebert were present when Jackson, Frank’s cousin, was arrested. All were upset about Jackson’s arrest, and they immediately proceeded to determine which hospital Ta-cina had been taken to so that Doyle could beat her up. On the way to the hospital, they discussed what they planned to do with Tacina after the assault. After learning that Tacina would be released in about an hour, Frank accompanied Doyle, Turner, and Ebert on a brief trip to, among other things, find a suitable location to dump Tacina after the assault. Turner picked up Tacina and Ponce-Duron in Doyle’s vehicle and stopped to let Frank, Doyle, and Ebert, who had been hiding behind a sign, jump in. Upon entering, Frank struck Tacina on the head with a piece of brick and struck her with his hands later during the drive. All were fully participating, and Ponce-Duron later exclaimed that they would have to kill Tacina because they had taken it too far. The State presented evidence that, after finding a suitable location, Frank ripped off Tacina’s shirt, wrapped it around her neck, and tried to break her neck in an effort to kill her. Unsuccessful, Ponce-Duron cut Tacina’s throat and stabbed her multiple times in the abdomen as Frank and the others observed. Frank and Ponce-Duron showered and changed clothes at Doyle’s house, and they collected items that had blood on them and placed them in a trash bag. Afterwards, Frank accompanied Ponce-Duron, Doyle, Turner, and Ebert to a car wash where he and Ponce-Duron attempted to wash and clean the blood out of Doyle’s car. In his conversation with Frank, not long after the murder, Detective Barrett noticed a bandaged cut on one of Frank’s fingers.

After viewing all the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found, beyond a reasonable doubt, that Frank acted with the intent to promote or assist the commission of the offense of capital murder and that Frank encouraged, aided, or attempted to aid Ponce-Duron in the commission of the offense. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Accordingly, we hold that the trial court did not err when it denied Frank’s motion for instructed verdict. We overrule Frank’s second point.

Y. Voluntariness of Oral Statement

In his fifth point, Frank argues that the trial court violated his federal and state constitutional right to remain silent by overruling his motion to suppress an audiotaped statement he made to police and allowing it to be played before the jury. Frank argues that his statement was involuntary because the detective taking the statement did not make an inquiry into his educational background or IQ and did not elaborate on the Miranda warnings given. The State maintains that Frank’s statement was made knowingly and voluntarily. Frank filed a motion to suppress his audiotaped statement, and the trial court conducted a Jackson v. Denno hearing to determine its admissibility. At a Jackson v. Denno hearing, the trial court is the sole fact finder and may choose to believe or disbelieve any or all of the witnesses’ testimony. Jackson, 378 U.S. at 376-77, 84 S.Ct. at 1780-81; Dewberry v. State, 4 S.W.3d 735, 747 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). We will not disturb the trial court’s findings absent an abuse of discretion. Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Crim.App.1995). An abuse of discretion will be found only when the trial judge’s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991) (op. on reh’g).

The statement of an accused may be used in evidence if it was freely and voluntarily made without compulsion or persuasion. Tex.Code Crim. Proc. Ann. art. 38.21 (Vernon 2005). A confession is involuntary if circumstances show that the defendant’s will was “overborne” by police coercion. Creager v. State, 952 S.W.2d 852, 856 (Tex.Crim.App.1997). In other words, a statement is involuntary if the record reflects “official, coercive conduct of such a nature” that any statement obtained thereby is “unlikely to have been the product of an essentially free and unconstrained choice by its maker.” Alvarado, 912 S.W.2d at 211. The determination of whether a confession is voluntary is based on an examination of the totality of the circumstances surrounding its acquisition. Reed v. State, 59 S.W.3d 278, 281 (Tex.App.-Fort Worth 2001, pet. ref'd).

Detective Barrett testified at the hearing that he arrested Frank pursuant to a warrant on September 18, 2002. Detective Barrett took Frank to the Lewis-ville Police Department and asked him if he would like to give a statement. He agreed to give one, and he was taken to an interview room where Detective Barrett audio recorded the interview. At the outset of the interview, Detective Barrett read Frank the Miranda warnings. Detective Barrett testified that Frank never indicated that he wanted to take a break during the interview and that he never invoked any of the rights explained to him. Detective Barrett testified that Frank understood each and every right and that he still wanted to proceed with the interview. The Texas Code of Criminal Procedure only requires that an accused be “given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning.” Tex.Code Cmm. Proc. Ann. art. 38.22, § 3(a)(2) (Vernon 2005) (emphasis added). Accordingly, the evidence shows that, based on the totality of the circumstances, Frank’s statement was made knowingly and voluntarily. Nothing in the record indicates that Frank is mentally impaired or has a low IQ. The evidence supports the trial court’s ruling. We hold that the trial court did not abuse its discretion by denying Frank’s motion to suppress. We overrule Frank’s fifth point.

VI. Videotape — Heaksay

In his third point, Frank argues that the trial court violated his federal and State right to a fair trial by excluding a videotape of statements by Doyle “that exonerated and proved” his innocence. Frank contends that the videotape was admissible as an exception to the hearsay rule pursuant to Texas Rule of Evidence 803(24) — a statement against penal interest. The State argues that the trial court properly excluded the videotape as inadmissible hearsay.

We review a trial court’s decision to admit or exclude evidence of a statement against penal interest for an abuse of discretion. James v. State, 102 S.W.3d 162, 176 (Tex.App.-Fort Worth 2003, pet. refd). The trial court’s ruling will not be reversed as long as it is within the “zone of reasonable disagreement.” Montgomery, 810 S.W.2d at 379-80; Couchman v. State, 3 S.W.3d 155, 158 (Tex.App.-Fort Worth 1999, pet. ref'd).

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex.R. Evid. 801(d). Rule 803 lists a number of hearsay exceptions, and rule 803(24) provides in relevant part as follows:

Statement Against Interest. A statement which ... at the time of its making ... so far tended to subject the declar-ant to ... criminal liability ... that a reasonable person in declarant’s position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Tex.R. Evid. 803(24). Whether a statement is admissible in accordance with rule 803(24) requires a two-step inquiry. Bingham v. State, 987 S.W.2d 54, 57 (Tex.Crim.App.1999). First, the trial court must determine whether the statement in question tends to expose the declarant to criminal liability. Id. Second, the trial court must determine whether there are corroborating circumstances that clearly indicate the trustworthiness of the statement. Id. The party seeking admission of the statement has the burden to make this showing. James, 102 S.W.3d at 176.

In the instant case, the videotape offered into evidence by Frank was made by Sherika Modester, a friend of Doyle’s, with the help of David Johnson at Modester’s apartment on July 22, 2003. After the murder, Doyle evidently made a number of statements to Modester concerning Frank’s involvement, or lack thereof, in the murder of Tacina. Concerned about Frank’s pending legal situation, Modester and Johnson decided to set up a video recorder and to attempt to record Doyle making these statements. The tape shows Doyle and Modester having a conversation.

We have reviewed the videotape, and a large portion of the conversation between Doyle and Modester is unintelligible because of loud background noise from a television. We were, however, able to understand Doyle say that (Ponce-Duron) was the only one who did anything to Tacina and that she, Frank, Turner, and Ebert did not do anything to Tacina. Doyle also questions why Ebert was charged with aggravated assault while she, Frank, and Turner were charged with capital murder. We further understand Doyle to be discussing probation and capital murder in some context. As the State points out, Doyle’s statements could be construed as placing her at the murder scene, but admitting presence at the scene is not necessarily against Doyle’s penal interest because mere presence at the scene of the offense, by itself, is insufficient to support criminal responsibility as a party. Fetters v. State, 147 S.W.3d 488, 490-91 (Tex.App.-Fort Worth 2004, pet. ref'd). We cannot agree with Frank’s contention that Doyle admitted her participation in Tacina’s murder on the videotape. To the contrary, she said she did not do anything to Tacina. If Doyle admitted responsibility, we were unable to understand it. Based on the videotape, we conclude that Doyle’s statements do not tend to expose her to criminal liability. See Bingham, 987 S.W.2d at 57. Accordingly, because the understandable portions of the videotape contain only statements not falling under any recognized exception to the hearsay rule, the trial court did not abuse its discretion by excluding the videotape. Tex.R. Evid. 802, 803. We overrule Frank’s third point.

VII. PHOTOGRAPHS

In his fourth point, Frank argues that he was denied his right to a fair trial because the trial court admitted “inflammatory and prejudicial” crime scene and autopsy photographs of Tacina. Frank contends that the cumulative effect of the “grotesque images” outweighed any probative value they may have had.

The admissibility of a photograph is within the sound discretion of the trial judge. Paredes v. State, 129 S.W.3d 530, 539 (Tex.Crim.App.2004). We will not disturb a trial court’s ruling admitting or excluding evidence so long as its decision falls within the “zone of reasonable disagreement.” See Montgomery, 810 S.W.2d at 391.

Under Texas Rule of Evidence 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex.R. Evid. 403. A rule 403 analysis by the trial court should include, but is not limited to, the following considerations: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent’s need for the evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex.Crim.App.2004). A court may consider the following factors in determining whether the probative value of a photograph is substantially outweighed by the danger of unfair prejudice: the number of photographs, the size of the photograph, whether they are in color or black and white, whether they are gruesome, whether the body is naked or clothed, and whether the body has been altered by autopsy. Reese v. State, 33 S.W.3d 238, 241 (Tex.Crim.App.2000).

Autopsy photographs are generally admissible unless they depict mutilation caused by the autopsy itself. Rayford v. State, 125 S.W.3d 521, 529 (Tex.Crim.App.2003), cert. denied, 543 U.S. 823, 125 S.Ct. 39, 160 L.Ed.2d 35 (2004). Where pictorial evidence will help the jury to understand verbal testimony, such as the technical language used by a medical dóc-tor in describing the injuries sustained by a victim of a crime, the photograph is generally admissible. Harris v. State, 661 S.W.2d 106, 107 (Tex.Crim.App.1983). Photographs that depict the nature, location, and extent of a wound have been declared probative enough to outweigh any prejudicial effect. Legate v. State, 52 S.W.3d 797, 807 (Tex.App.-San Antonio 2001, pet. ref'd). Overall, the photograph must be helpful to the jury; “[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, 144 S.W.3d at 491-92.

A. Crime Scene Photographs

States’ Exhibits 13 through 21 depict the crime scene. They were published to the jury using “Power Point.” Exhibits 13, 14, and 15 were taken from a distance and show the area surrounding Tacina’s body. Detective Barrett testified that Ta-cina was found in a vacant lot between a housing development and a trailer park, and Ebert described the location that was chosen to murder Tacina and dump her body as an “excluded area” with a “little dirt mound.” Accordingly, the photographs were helpful to the jury because they provided a visual context for Detective Barrett’s and Ebert’s testimony describing the crime scene. Moreover, Taci-na’s injuries are not visible in any of the photographs.

Exhibits 16, 17, and 18 depict Tacina’s entire body; she is lying on her back, wearing only a pair of shorts and tennis shoes. Each photograph is taken from a different angle, and each photograph is in color. None of Tacina’s wounds are visible in exhibit 16, but the stab wounds to her stomach are visible in exhibit 17, and the injury to her throat is visible in exhibit 18. Exhibits 19, 20, and 21 are close-ups focusing on the injuries themselves. The trial court admitted the photographs and published them to the jury after Detective Barrett testified regarding where and how Tacina was found; .the State did not spend a substantial amount of time discussing the photographs. The probative value of the photographs is high. They provide strong visual evidence corroborating the testimony of Ebert, Detective Barrett, and a portion of Hoffman’s testimony concerning how Tacina was murdered, the injuries inflicted, and the ultimate result of the events that took place on September 15, 2002. Moreover, the State’s need for the evidence was relatively high. As the State points out, the only other evidence it had to establish the circumstances surrounding Tacina’s murder came primarily from Ebert and Hoffman, one of whom participated in the events leading up to and after the murder. As the court of criminal appeals has stated, “Visual evidence accompanying testimony is most persuasive and often gives the fact finder a point of comparison against which to test the credibility of a witness and the validity of his conclusions.” Chamberlain v. State, 998 S.W.2d 230, 237 (Tex.Crim.App.1999), cert. denied, 528 U.S. 1082, 120 S.Ct. 805, 145 L.Ed.2d 678 (2000). Thus, although the photographs arguably depict “disagreeable realities,” “they depict nothing more than the reality of the brutal crime committed” and helped the jury to understand the verbal testimony. Id. We hold that the probative value of State’s Exhibits 13 through 21 is not substantially outweighed by its prejudicial effect. See Tex.R. Evid. 403. Thus, the trial court did not abuse its discretion by admitting State’s Exhibits 13, 14, 15, 16, 17, 18, 19, 20, and 21. See Paredes, 129 S.W.3d at 539.

B. Autopsy Photographs

State’s Exhibits 43 through 58 are autopsy photographs of Tacina introduced and admitted during the testimony of Gary L. Sisler, M.D., the medical examiner who performed Tacina’s autopsy. Like the crime scene photographs, they were published to the jury using “Power Point.” All of the photographs are in color, and each one depicts an injury or different view of an injury suffered by Tacina. Before the photographs were admitted, Dr. Sisler affirmed that the photographs would assist him in his testimony concerning Tacina’s injuries and would also help the jury understand his testimony. Dr. Sisler testified that Tacina’s manner of death was homicide and that the cause of death was multiple sharp force injuries. He further testified concerning the extent of the injuries suffered, how they were inflicted, and when they likely occurred in relation to Tacina’s death. The photographs do not depict mutilation caused by the autopsy, but the nature, location, and extent of the wounds as testified to by Dr. Sisler. The photographs thus had the effect of illustrating Dr. Sisler’s testimony. Accordingly, we hold that the probative value of State’s Exhibits 43 through 58 is not substantially outweighed by their prejudicial effect, if any. See Tex.R. Evid. 403. Thus, the trial court did not abuse its discretion by admitting State’s Exhibits 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, and 58. See Paredes, 129 S.W.3d at 539. We overrule Frank’s fourth point.

VIII. Jury Instruction-Reasonable Doubt

In his sixth point, Frank argues that the trial court erred by including the following language in its charge to the jury: “It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution’s proof excludes all ‘reasonable doubt’ concerning the defendant’s guilt.” Frank argues that it was error to instruct the jury on the definition of reasonable doubt in light of Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App.2000), and that the instruction “amounted to a misstatement of law and contradicted the prohibition of defining reasonable doubt as required by the Court of Criminal Appeals.”

We have previously addressed the propriety of including this portion of the Geesa instruction in the jury charge and have found it to be proper. See Pope v. State, 161 S.W.3d 114, 125 (Tex.App.-Fort Worth 2004, no pet.); Best v. State, 118 S.W.3d 857, 865 (Tex.App.-Fort Worth 2003, no pet.); see also Woods v. State, 152 S.W.3d 105, 115 (Tex.Crim.App.2004), cert. denied, — U.S. -, 125 S.Ct. 2295, 161 L.Ed.2d 1092 (2005). Accordingly, we overrule Frank’s sixth point.

IX. Conclusion

Having overruled all six of Frank’s points, we affirm the trial court’s judgment.

DAUPHINOT, J. filed a dissenting opinion.

LEE ANN DAUPHINOT, Justice,

dissenting.

Because the majority does not examine the effects of the State’s primary witness’s admitted perjury, I must respectfully dissent.

It is undisputed that Ebert, not Appellant, obtained the brick used to assault the complainant. Ebert picked up the brick and put it on the floorboard of the car before leaving for the hospital where they planned to kidnap the complainant. This action shows Ebert’s intent to use- a weapon, his degree of complicity, and his independent planning. Ebert 'lied at trial about who picked up the brick and about his level of involvement in the offense. Indeed, his trial testimony suggested that he was merely present when the murder was committed.

Yet the majority dismisses Appellant’s complaint that the trial court abused its discretion by denying his motion for new trial with the observation that “On appeal, [Appellant] makes no effort to show that Ebert’s changed testimony about who picked up the brick in the trailer park would probably bring about a different result upon a new trial.” The majority relies on ease law that is, at best, confusing.

As the Texas Court of Criminal Appeals recognized in Keeter, “Article 40.001 ... provides: ‘A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial.’” Shall, of course, is mandatory, not precatory. The Keeter court determined that the term “material” was ambiguous and turned to extratextual factors to interpret the legislature’s attempt to clarify the mandate that the trial court must grant a new trial when newly discovered evidence favorable to the accused was the basis of a motion for new trial. In interpreting. the term “material,” the Keeter court decided that the new statute was merely a clarification of the former appellate rule governing the same subject matter. Consequently, the Keeter court announced that it would interpret the new statute in conformity with prior caselaw and continue to adhere to the four-part test that the majority in the case before us now applies. According to the Keeter court, materiality in the context of newly discovered evidence includes the requirements that

(1) the newly discovered evidence was unknown or unavailable to the movant at the time of his trial;
(2) the movant’s failure to discover or obtain the evidence was not due to a lack of diligence;
(3) the new evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and,
(4) the new evidence is probably true and will probably bring about a different result on another trial.

Given the clear wording of the statute, the disparate treatment by the Texas Court of Criminal Appeals of materiality in other contexts, and this court’s burden of assessing harm, it is difficult for me to conclude that the Keeter materiality test requires■ the defendant to satisfy all four prongs of the Court’s test. To harmonize the Keeter line with conflicting case law and the plain wording of the statute, it would appear to me that the four-pronged test for determining materiality is to be treated as a guide to interpreting the statute, not as a replacement for the statute.

According to the majority opinion, it is Appellant’s burden to show that the newly discovered evidence is probably true and that its materiality will probably bring about a different result upon a new trial. Although couched in terms of demonstrating materiality on appeal, the substance of the issue in the case before us is whether Appellant can show that he was harmed by the jury’s reaching a verdict it would not have reached had not the State’s eyewitness proffered perjured testimony concerning his role, and Appellant’s role, in the commission of the murder. As a result, the majority, in following Keeter, would require Appellant to show that Ebert’s perjured testimony harmed him. But the Texas Court of Criminal Appeals has repeatedly reminded the intermediate appellate courts that “neither the State nor appellant must demonstrate harm when an error has occurred. Rather, it is the appellate court’s duty to assess harm after a proper review of the record.”

The materiality of the new evidence in this case is self-evident: How much more material could evidence of a murder be than the identity of the person who provided the murder weapon intending that it be used to commit the murder? Similarly, the harm is self-evident: Conviction based on perjured testimony is per se a denial of due process. Yet, the fourth prong of the test approved by the Keeter court and applied by the majority appears, in a literal sense, to require that the movant prove harm in the same way that a defendant bears the burden of proving an affirmative defense. The Schütz court stated,

We have explained that, in evaluating the harm that a defendant has suffered as a result of a trial court’s error, [w]e do not resolve the issue by asking whether the appellant met a burden of proof to persuade us that he suffered some actual harm. No party should have a burden to prove harm from an error, and there ordinarily is no way to prove “actual” harm. Burdens and requirements of proving actual facts are appropriate in the law of evidence, but they have little meaning for the harmless error decision.

What burden does a movant for new trial under Article 40.001 have? Surely it cannot be greater than the burden imposed on an applicant seeking extraordinary relief. In Ex parte Richardson, the Texas Court of Criminal Appeals clearly set out the burden of an applicant seeking postconviction habeas corpus relief based on a Brady violation:

Applicant must first show that the State failed to disclose evidence, regardless of the prosecution’s good or bad faith. He must then show that the withheld evidence is favorable to applicant. Finally, the applicant must show that the evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. As in any habeas proceeding, the applicant must prove the constitutional violation and his entitlement to habeas relief by a preponderance of the evidence.

Like the case before us, Richardson also dealt with perjured testimony. The only difference between Richardson and the case now before this court is the timing of the complaints: Richardson’s complaint was brought in a post-conviction application for writ of habeas corpus, and Appellant’s complaint was brought in a motion for new trial. The Richardson court required only that Richardson provide a sufficient record to show he was entitled to relief, not that he argue the point so convincingly that he sway the appellate court. That is, Richardson had the burden of production, not persuasion. In Richardson, the Texas Court of Criminal Appeals performed this analysis:

Lastly, applicant must show that the evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. Applicant’s habeas hearing spanned fifteen full days and included testimony from forty-five witnesses. Among his many factual findings regarding applicant’s claims, the habeas trial judge determined that “[tjhere [was] no question but that by the time of applicant’s trial Anita Hanson’s credibility was a major issue in the case.” The habeas trial judge heard extensive testimony regarding Anita Hanson’s credibility (or lack thereof), the State’s knowledge of her credibility problems, the circumstances of her year secreted away in protective custody, and whether Hanson had agreed to testify against applicant in return for the District Attorney’s explicit or implicit promise not to prosecute her for killing Napoleon Ellis.
Anita Hanson’s eyewitness testimony clearly was crucial to the State’s capital murder case against applicant. Her account placed applicant at the murder scene at the time of the killings and assigned primary responsibility for the murders to applicant, whom Hanson claimed was in charge and ordered Hanson to shoot Ellison. She was the only eyewitness who testified to the actual killings and applicant’s participation. The State’s other witnesses established only that (i) appellant possessed a motive to commit the murders and intended to act on that motive, and (ii) two witnesses had observed him firing a machine gun on some prior date. It was upon her testimony that the jury convicted applicant of capital murder and sentenced him to death. Applicant’s co-defendants, however, who were tried separately, were either acquitted or their indictments were dismissed as, over time, Anita Hanson’s credibility was fatally impeached by her ever-increasing number of self-admitted perju-rious statements. Her story unraveled entirely in subsequent trials. We find that applicant has demonstrated a reasonable probability that, had the Gold-ston diary been timely disclosed and the six law enforcement officers testified, Anita Hanson’s credibility would have not only been impeached, but severely undermined. Because her testimony was critical to the State’s case, we agree with the habeas judge who concluded: “I find as a matter of law that the evidence would, in all likelihood, create the probability sufficient to undermine the confidence in the outcome of the proceeding.”

In Ex parte Adams, the Texas Court of Criminal Appeals addressed specifically the question of perjured testimony and the materiality requirement:

In Giglio v. United States, the Supreme Court decided that evidence of a promise of leniency to a witness made by another prosecutor should have been disclosed to the defense even if the prosecutor trying the case acted in good faith and did not know of the offer because a “promise made by one attorney must be attributed to the Government.” Accordingly, the Court concluded that the government’s failure to disclose the impeachment evidence was a violation of due process. In addition, the Court articulated a standard for materiality, left unexplained in Brady, by stating that “if ‘the false testimony could ... in any reasonable likelihood have affected the judgment of the jury,’ ” then it was sufficiently material to require a new trial.
In United States v. Agurs, the Court established several different standards of materiality. First, in cases where the prosecution knew or should have known that perjured testimony was utilized to secure a conviction then materiality would be present and a new trial ordered “if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” The Court believed that such a standard was appropriate because such cases “involve a corruption of the truth-seeking function of the trial process.”
Second, the Court observed that if the defense makes a specific pretrial request for exculpatory evidence and the prosecutor is thereby placed on notice his “failure to make any response is seldom, if ever, excusable.” Although the Court did not expressly identify a standard of materiality it is obvious that it intended to apply the “may have affected the trial outcome” standard.
Third, in those cases in which the defendant makes either no request or an overly general request, although the prosecutor will still have a duty to disclose favorable evidence, the standard of materiality will necessarily be higher than in the preceding situations. The Court stated:
If the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt whether or not the additional evidence is considered, there is no justification for a new trial.
In 1985 the Supreme Court again confronted the issue of the prosecutor’s failure to disclose to the defendant favorable evidence. In United States v. Bagley, a divided Court replaced the Brady-Agurs multiple materiality standards and adopted a single materiality standard. In doing so, the Court rejected the distinctions between specific requests for exculpatory evidence and no requests for such evidence. In Bagley the defendant was indicted for violating Federal narcotics and firearm statutes. Prior to trial the defendant filed a discovery motion requesting that the trial court order the government to disclose “ ‘any deals, promises or inducements made to witnesses in exchange for their testimony.’ ” The government’s response to the defendant’s discovery motion did not disclose any “ ‘deals, promises or inducements.’” Several years after the defendant was convicted, he discovered that the government’s only witnesses had executed contracts to provide to the Bureau of Alcohol, Tobacco and Firearms information concerning his activities, collect evidence against him and testify against him in court. The witnesses were to be paid an amount of money “upon the accomplishment of the objective.... ”
The Supreme Court noted initially that the rule of Brady v. Maryland was based on the requirement of due process, and its overriding purpose was to insure that a defendant receives a fair trial by requiring the prosecution to disclose favorable evidence. The Court further noted that unlike Brady and Agurs the case involved impeachment evidence but it too was subject to the Brady dictates and should not be distinguished from any other exculpatory evidence.
The Court thereafter reviewed its holding in Agurs and the standards of materiality it established. The Court also noted that since Agurs, the Court had decided Strickland v. Washington, which held:
[t]hat a new trial must be granted when evidence is not introduced because of the incompetence of counsel only if “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” The Strickland Court defined a “reasonable probability” as “a probability sufficient to undermine confidence in the outcome.”
The Court then dispensed with the Agurs standards of materiality that distinguished between “no request,” “general request,” and “specific request” cases and concluded that the standard identified in Strickland v. Washington would be “sufficiently flexible to cover all of the preceding situations.”
Significantly, however, the majority opinion did not disturb the standard of materiality announced in Agurs for cases involving the prosecution’s knowing utilization of perjurious testimony.
In Ex parte Turner, this Court adopted the Agurs test for materiality in both specific request and no request cases. Implicitly, the Court adopted the Agurs standard of materiality when perjured testimony is utilized.
In Hernandez v. State, we adopted the Strickland v. Washington standard to resolve claims of ineffective assistance of counsel. We are now equally persuaded by the reasoning of the Supreme Court in Bagley when it adopted the Strickland standard for materiality in cases involving exculpatory evidence. Since the Bagley Court did not disturb the standard of materiality established in Agurs when dealing with the prosecution’s knowing use of perjured testimony we hereby expressly adopt that standard also.
Comparing these standards to the trial court’s findings it is obvious that ha-beas corpus relief is necessary. The statement Miller gave to the police on December 3, 1976, which the trial court found the State intentionally failed to disclose, contains statements that are the diametric opposite of Miller’s trial testimony. During the writ hearing the applicant’s attorney introduced, without objection, an exhibit that details the abundant discrepancies between the two statements. Obviously, this is the type of' prior inconsistent statement that could have had the effect of substantially soiling Miller’s direct identification testimony. In Napue v. Illinois, the Supreme Court observed that the State’s principal identification witness had, contrary to his trial testimony, been offered something in exchange for his testimony. In finding that the prosecutor had a duty to correct the perjured testimony the Court commented, “The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence.” Had Miller’s statement been provided to the defense, as the trial court had ordered, it would have obviously constituted a secure basis for impeachment and could have nullified the effect of her otherwise unimpeached identification of the applicant.

The majority in the case now before this court does not analyze the importance of the newly discovered evidence that Ebert committed perjury in describing his role in the murder. Rather, the majority assigns to Appellant a burden of persuasion that does not clearly and unequivocally exist in the law that governs this issue. Instead of examining the record to determine the impact of Ebert’s perjury, the majority requires Appellant to convince us that he would have been acquitted if Ebert had testified truthfully.

The majority does not consider the effect that truthful testimony would have had on the jury charge or upon the sufficiency of the evidence. That is, the majority does not consider that the revealed perjury shows that Ebert is, like the other eyewitnesses, an accomplice. A person who is merely present at the scene of the offense is not an accomplice; an affirmative act or omission is required. A defendant is not entitled to a jury instruction on the accomplice witness rule if another person was merely present at the scene of the offense. When the evidence shows that a witness is a party to the offense for which a defendant is being tried, however, the defendant is entitled to a jury instruction that tells the jury that “[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.” The corroboration cannot come from another accomplice who testifies in court.

Ebert’s perjured testimony portrayed him as an innocent bystander, merely present at the murder scene. Appellant did not request an accomplice witness instruction as to Ebert, and, if Ebert was merely present, Appellant was not entitled to the jury instruction. I would point out that the evidence at trial showed that the other eyewitnesses to the murder were also participants. As Judge Womack observed in Herron, “[I]f there was no charge at all on the law of accomplice-witnesses, there is no chance that the jury could have applied the law correctly.”

The majority does not discuss the impact of Ebert’s perjury on Appellant’s ability to convince the trial court that Ebert was an accomplice as a matter of law or to convince the jury that Ebert was an accomplice as a matter of fact. The majority does not discuss the effect of a jury instruction on accomplice testimony. Nor does the majority discuss the impact of independent impulse evidence. Of equal significance in determining whether Appellant should have been granted a new trial, the majority does not evaluate the condition of the remaining evidence when all accomplice testimony is excluded.

Perjury undermines the very fabric of our justice system. Our rule of law depends on honesty: on honest judges, on honorable counsel, and on witnesses who are governed by the sanctity of the oath they swear or affirm. When any element of this rule of law fails its obligation of honesty, both the State and the defendant are denied a fair trial, and the public is denied a belief in the integrity of our justice system. Both the trial judge and the lawyers in this case behaved honorably; it is the witness Ebert who violated his oath. Because the majority fails to assess the impact that Ebert’s lies had on Appellant’s right to a fair trial, I am compelled to dissent.

      . Jackson had been "seeing” Tacina.

      . Jackson is the father of Doyle’s son and the cousin of Frank.

      . Ebert testified at trial that Frank picked up the brick in the trailer park, but after trial Ebert admitted that he picked up the brick in the trailer park; the State filed a stipulation of evidence disclosing this information.

      . Because the meeting with the judge concerning Ebert's new testimony that he, not Frank, picked up the brick occurred in chambers, we have no idea whether Frank attempted in this meeting to meet his burden of establishing that this change in one aspect of Ebert’s testimony would probably bring about a different result.

      . The issues addressed by the dissent were not raised by Frank either in the trial court or in this court. Frank nowhere claims that Ebert was an accomplice witness as a matter of law or fact; Frank nowhere asserts that he was entitled to a jury instruction on the accomplice witness rule; Frank nowhere asserts that the court's charge was erroneous in any respect. Because these issues were not raised by Frank, they could not in any event result in the reversal of his conviction. See Gerron v. State, 97 S.W.3d 597 (Tex.Crim.App.2003) (prohibiting court of appeals from reversing conviction on unassigned error); Hailey v. State, 87 S.W.3d 118, 121-22 (Tex.Crim.App.2002) (same), cert. denied, 538 U.S. 1060, 123 S.Ct. 2218, 155 L.Ed.2d 1111 (2003). Additionally, the dissent confuses error and harm; it is Frank's burden to establish error in the failure to grant a new trial because newly discovered evidence would probably bring about a different result. See Keeter, 74 S.W.3d at 36-37.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964)

      . Detective Barrett brought Frank a Coke and some chips just before the interview began.

      . The record does not contain a transcription of the taped conversation.

      . We need not address whether there are corroborating circumstances that clearly indicate the trustworthiness of the statements because the first inquiry fails. Bingham, 987 S.W.2d at 57.

      . Frank did not argue at trial, and he does not argue on appeal, that the photographs were not relevant. We therefore presume that the photographs are relevant.

      . Dr. Sisler testified, however, that some of the "yellowish, almost parchment-like” area on State's Exhibit 47 resulted from insect activity.

      . Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991).

      . Majority op. at 71.

      2. Tex.Code Crim. Proc. Ann. art. 40.001 (Vernon Supp.2005).

      . Keeter v. State, 74 S.W.3d 31, 36 (Tex.Crim.App.2002).

      . See Tex. Gov’t Code Ann. § 311.016(2) (Vernon 2005); see also Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex.1999) ("We generally construe the word ‘shall’ as mandatory, unless legislative intent suggests otherwise.”).

      . Keeter, 74 S.W.3d at 36.

      . Id. at 37.

      . Id.

      . Id. at 36-37.

      . See majority op. at 71.

      . Schutz v. State, 63 S.W.3d 442, 444 (Tex.Crim.App.2001) (citations omitted).

      . Ex parte Castellano, 863 S.W.2d 476, 481 (Tex.Crim.App.1993).

      . Schutz, 63 S.W.3d at 444 (citations omitted).

      . Ex parte Richardson, 70 S.W.3d 865, 870 (Tex.Crim.App.2002) (citations omitted).

      . Id. at 872-73 (citations omitted).

      . 768 S.W.2d 281 (Tex.Crim.App.1989).

      . Id. at 289-91 (citations and footnotes omitted).

      . Blake v. State, 971 S.W.2d 451, 454 (Tex.Crim.App.1998).

      . Russell v. State, 598 S.W.2d 238, 250 (Tex.Crim.App.), cert. denied, 449 U.S. 1003, 101 S.Ct. 544, 66 L.Ed.2d 300 (1980).

      . Tex.Code Crim. Proc. Ann. art. 38.14 (Vernon 2005).

      . See Herron v. State, 86 S.W.3d 621, 631-33 (Tex.Crim.App.2002).

      . See Russell, 598 S.W.2d at 250.

      . Herron, 86 S.W.3d at 635 (Womack, J. dissenting).

      . See Solomon v. State, 49 S.W.3d 356, 368 (Tex.Crim.App.2001) (pointing out that there is no enumerated defense of "independent impulse” in the penal code but that independent impulse evidence would "simply negate the conspiracy liability element of the State’s case”).

      . See Tex.Code Crim. Proc. Ann. arts. 38.14, 38.17 (Vernon 2005).


source: Caselaw Access Project

author: JAMES T. WORTHEN, Chief Justice.

license: Public Domain

text:
    Mario A. GOMEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 12-04-00260-CR.
    Court of Appeals of Texas, Tyler.
    Dec. 30, 2005.

      Donald F. Killingsworth, Tyler, for appellant.
    Michael J. West, for The State of Texas.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

Mario A. Gomez appeals his conviction for assault-family violence. After a jury found Appellant guilty, the trial court assessed his punishment at 365 days of confinement in the county jail and a $600 fine. In seven issues, he contends the evidence is legally and factually insufficient to support his conviction and that he was denied his right to confront witnesses against him. The State failed to file a brief. We affirm.

Factual and Legal Background

Around 5:00 a.m. on October 19; 2003, Tyler Police Officers Wesley .Lawrence and Jeff Davis were dispatched to a convenience store at 324 South Beckham in Tyler, Texas. Although' it was still dark when they arrived, Carmen Perez immediately approached them. Perez, described by the two officers as hysterical, and crying, told them that she had been assaulted by her ex-boyfriend, Appellant. According to Perez and Lawrence, who testified about Perez’s statements at the scene, Appellant approached Perez, saying he wanted to talk. ■ As Appellant persisted, he grabbed her arm in an attempt to force her into his car. When Perez pulled away from Appellant, she received two scrapes at least three inches long down her chest, right above her breasts.

While Perez was relating the incident to Lawrence and Davis, she and a friend exclaimed “there he goes, there he goes” as Appellant drove by in a silver Lincoln. Another officer at the scene got in his vehicle and unsuccessfully attempted to stop Appellant. Lawrence and Davis later apprehended Appellant near his mother’s house on Elizabeth Street. Later, Tyler policeman Chris Turner photographed the two scrapes on Perez’s chest. Turner then transported Perez to Elizabeth Street where she identified Appellant as her assailant.

Appellant was charged by information for causing bodily injury assault-family violence. See Tex. Pen.Code Ann. § 22.01(a)(1) (Vernon Supp.2005). Appellant was tried before a jury in April 2004. Perez was a reluctant witness and, in January 2004, Appellant asked Perez to drop her charges against him. However, she ultimately testified about the early morning events of October 19, 2003. Officers Lawrence, Davis, and Turner also testified at the trial. The jury found Appellant guilty of assault-family violence as charged in the information. The trial court then assessed his punishment at 365 days of confinement and a $600 fine. Appellant timely appealed.

Legal and Factual Sufficiency of the Evidence

In his fourth and fifth issues, Appellant contends that the evidence was legally and factually insufficient to support the jury’s determination that he caused bodily injury to Perez. In his sixth and seventh issues, he contends the evidence was also both legally and factually insufficient to show that he and Perez were members of the same household.

Standard of Review

In evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Russeau v. State, 171 S.W.3d 871, 877 (Tex.Crim.App.2005) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In reviewing factual sufficiency, we must determine whether a neutral review of the evidence, both for and against the finding, demonstrates that a rational jury could find guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also factually insufficient when contrary evidence is so strong that the beyond a reasonable doubt standard could not have been met. Id. at 484-85. Under both legal and factual sufficiency, the fact finder is the sole judge of the weight and credibility of the witness’s testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App.2000); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). The jury may choose to believe all, some, or none of a witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986).

Assault

A person commits the offense of assault against a member of his household if he 1) intentionally, knowingly, or recklessly 2) causes bodily harm 3) to another, and 4) he is a member of the same household as defined by the Texas Family Code. Tex. Pen.Code Ann. § 22.01(a)(1) (Vernon Supp.2005); Tex. Fam.Code Ann. § 71.005 (Vernon 2003). “Bodily injury” is defined as “physical pain, illness, or any impairment of physical condition.” Tex. Pen. Code Ann. § 1.07(a)(8) (Vernon 2003). A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient. Tex Pen.Code Ann. § 6.04(a) (Vernon 2003). The term “family violence” means “an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault or sexual assault ...” Tex Fam.Code Ann. § 71.004(1) (Vernon 2002).

The jury viewed four pictures showing Perez with the two scrapes down her chest, right above her breasts. These pictures were taken by Officer Turner the same morning that the scrapes occurred as Perez resisted Appellant’s efforts to force her into his vehicle by grabbing her arm. She told the jury she received these two scrapes when she tried to pull away from Appellant.

Appellant contends that his act of grabbing Perez by her arm was not enough to cause the two scrapes on her chest. Perez testified that Appellant only wanted to talk to her and did not intend to hurt her. The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony; it is also the exclusive province of the jury to reconcile conflicts in the evidence. Wesbrook, 29 S.W.3d at 111. The jury could have concluded the scrapes were a logical result of Appellant’s actions when he grabbed Perez’s arm and tried to force her into his car. See Tex. Pen.Code Ann. § 6.04(a). The evidence before the jury is legally sufficient to prove that Appellant assaulted Perez. Further, after carefully reviewing the evidence in a neutral light, we conclude that the evidence is also factually sufficient to prove Appellant assaulted Perez. See Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App.2004). Appellant’s fourth and fifth issues are overruled.

Members of Same Household

A “household” is a “unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.” Tex. Fam.Code Ann. § 71.005 (Vernon 2002). A “member of a household” includes a person who previously lived in a household. Tex. Fam. Code Ann. § 71.006 (Vernon 2002). At trial, Perez testified that she and Appellant had lived together for a year and a half. She stated that they went out together and that they maintained a sexual relationship. She testified that Appellant would be with her all day and at night. She further testified that once in a while he would buy groceries. According to Perez, if Appellant had gone out with anyone else during this year and a half, she would have cared.

Perez testified that they would live together all right one week and then fight the next. She said that he would “come and go, come and go.” According to Perez, “sometimes we would be happy, and then he would be with his mother.” Appellant kept his clothes at his mother’s house on Elizabeth Street and took his baths there. He also paid the rent for his mother’s house. Perez testified that Appellant’s conduct confused her. She “always” asked Appellant if he considered her his wife, lover, or a friend, but he never answered her.

Our Legislature has established a low legal threshold for establishing the facts necessary to turn a simple assault into an assault-family violence. The uncontrovert-ed evidence before us is that Perez and Appellant lived in the same dwelling for a year and a half, although their cohabitation was off and on due to their disagreements. Therefore, we hold the evidence was both legally and factually sufficient to establish Perez and Appellant were members of the same household as that term is defined in the Texas Family Code. Appellant’s sixth and seventh issues are overruled.

Confrontation of Witnesses

In his first issue, Appellant contends that the trial court erred when it permitted the police officers to testify regarding statements made by Perez because this violated his right to confrontation of witnesses guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and discussed at length by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 1369, 158 L.Ed.2d 177 (2004).

In the case before us, officers Lawrence, Davis, and Turner testified about statements made to them by the victim, Perez. However, Perez also testified, and Appellant had the opportunity to cross examine her three separate times. The fact that Perez testified and was available for Appellant to cross examine her makes Crawford inapplicable here. See Crawford, 541 U.S. at 59, 124 S.Ct. at 1369. In Crawford, the Supreme Court sought to prevent the use of ex parte evidence against the accused. Id., 541 U.S. at 50, 124 S.Ct. at 1363. This category of evidence consists of out of court statements that were admitted into evidence without the accused having a right to confront the declarant. Id., 541 U.S. at 50-55, 124 S.Ct. at 1364-65. “When a declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” Id., 541 U.S. at 59 n. 9, 124 S.Ct. at 1369 n. 9. At trial, Perez testified and Appellant had the opportunity to cross examine her. Therefore, the Sixth and Fourteenth Amendment rights of confrontation were not violated and Crawford, does not apply. See Crawford v. State, 139 S.W.3d 462, 465 (Tex.App.-Dallas 2004, pet. ref'd) (holding that testimony hearsay was admissible when declarant testified at trial and was subject to cross examination). Appellant’s first issue is overruled.

In his second issue, Appellant contends that his right of confrontation of witnesses under article I, section 10 of the Texas constitution was violated. However, Appellant has not identified any distinction between the analysis we apply under the federal Confrontation Clause and the analysis we apply under the Texas Constitution. See Key v. State, 173 S.W.3d 72, 77 (Tex.App.-Tyler 2005, pet. ref'd). When an appellant offers no reason for construing the Texas Constitution as conferring greater protection in an area of law than the federal constitution, we will not address his state constitutional argument. See Black v. State, 26 S.W.3d 895, 896 n. 4 (Tex.Crim.App.2000). This specifically applies when, as here, an appellant fails to point out any meaningful distinctions between the confrontation clauses in the federal and Texas constitutions. See Lagrone v. State, 942 S.W.2d 602, 614 (Tex.Crim.App.1997). Appellant’s second issue is overruled.

Attempted Recall of Victim to Testify

In his third issue, Appellant contends that the trial court erred in refusing to allow him to recall Perez to testify during his case in chief, thereby violating his right to appearance of witnesses, guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution. Specifically, Appellant contends that he did not have an opportunity to cross examine Perez regarding her inconsistent and contradictory testimony and how Perez sustained her injuries because the trial court refused to allow him to recall Perez as a witness.

The trial court’s decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996). A reviewing court should not reverse a trial judge’s ruling that was within the zone of reasonable disagreement. Id. at 102. The right to confront one’s accuser necessarily includes the right to cross examine. Carroll v. State, 916 S.W.2d 494, 497 (Tex.Crim.App.1996). Nevertheless, there are several areas where cross examination may be inappropriate and, in those situations, the trial judge has the discretion to limit cross examination. Id. at 498 (citing Delaware v. Van Arsdall, 475 U.S. 673, 682, 106 S.Ct. 1431, 1436-37, 89 L.Ed.2d 674 (1986)). Specifically, a trial judge may limit cross examination when a subject is exhausted. Carroll, 916 S.W.2d at 498.

In the case before us, Appellant had an opportunity to cross examine Perez at three separate times after the State first elicited direct testimony from her. The State questioned Perez about specific details involving the assault during all three of its direct examinations. The State also elicited testimony from her regarding her living arrangements with Appellant during its first two direct examinations. Appellant specifically cross examined Perez regarding the assault during his first two cross examinations and conducted a lengthy questioning of her during his first cross examination regarding her living arrangements with Appellant. Appellant failed to raise any topics or issues that had not already been covered with Perez on his cross examinations. We hold the trial court did not abuse its discretion in refusing to allow Appellant to recall Perez during his case in chief. Appellant’s third issue is overruled.

Conclusion

Having overruled Appellant’s seven issues, the judgment of the trial court is affirmed.


author: Justice FRANCIS.

text:
    Robert WILLICH, Appellant v. Lydia DEASTADEAI, Appellee.
    No. 05-04-01481-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 19, 2006.
    Robert Willich, Plano, for Appellant.
    Andrew L. Farkas, Andrew L. Farkas & Associates, Plano, for Appellee.
    Before Justices MORRIS, BRIDGES, and FRANCIS.
   OPINION

Opinion by

Justice FRANCIS.

Lydia Deastadeai sued Robert Willich in the justice of the peace court for the return of her cat, Sweet Pea. The justice of the peace found in favor of Willich and ordered that the eat remain in the possession of Willich. Deastadeai appealed to the county court at law and after trial de novo, the county court judge ordered the cat returned to her. Willich appeals to this Court seeking the return of the cat. In five issues, he argues the evidence is insufficient to support the verdict, the trial court erred in allowing false testimony to be presented at trial, the trial court improperly allowed the pleadings to be amended, the City of Plano animal regulation code provision was ignored at trial, and the trial court erred in allowing a photo purportedly depicting Sweet Pea’s mother into evidence at trial without proper authentication. Determining this Court does not have jurisdiction over this matter, we dismiss this appeal for want of jurisdiction.

Lydia Deastadeai took in a stray cat that became pregnant and gave birth to two kittens, one of whom she named Sweet Pea. When Sweet Pea was two and a half months old, she dug a hole in the backyard and wandered away. On finding her cat was missing, Deastadeai searched the vicinity, put up flyers, made phone calls and contacted many of her neighbors hoping to find him. She knocked on Willich’s door but no one answered. Willich’s fence and property were described as being “catty cornered” to Deastadeai’s property.

About one and a half months after the disappearance, Deastadeai and a friend were walking in the neighborhood, passed by Willich’s house and saw Sweet Pea in the window. No one was home but Deas-tadeai returned later that night. She did not know Willich. Willich let her in his house and Deastadeai told him she thought he had her cat. Willich responded, “I hope you don’t want him back because we’ve grown attached to him, and my grandson has grown attached to him.” Deastadeai was allowed to hold Sweet Pea and believed he recognized her. Deasta-deai pleaded with Willich to let her have Sweet Pea back. He refused saying she had allowed the eat to get outside, this violated the Plano City Code, and his grandson had grown attached to him. Deastadeai left the house without Sweet Pea. Deastadeai and her fiancee, Philip Steinhofer, made another attempt to get Sweet Pea back from Willich and went to his house and pleaded with Willich to return the cat to his rightful owner but Willich again refused. Deastadeai said she would reimburse Willich for any expenses he incurred in caring for Sweet Pea. She then asked the court to return Sweet Pea to her even though she had originally pleaded for fifty dollars. She did not want the money now.

Willich called his daughter Marjorie Wil-lich as his first witness. She told the court the night they discovered Sweet Pea in their yard, she saw the “little black and white kitten” and thought one of her cats had escaped. The cat was wet and shivering. Marjorie took the cat inside and gave him water and cat food. She drove around the neighborhood to see if anyone was looking for the cat and spoke to one couple but ultimately found no one looking for a lost cat. After calling the pet hotline and the pound, she assumed the cat had been abandoned. Marjorie felt she had made a diligent effort to locate the Pea’s owner. She took the cat to the veterinarian the following Tuesday, learned he was about five months old, had not been neutered and was suffering from a bit of a cold. Marjorie had the vet give him his shots. By this time, the Williches had named Sweet Pea “Biscuit.” Marjorie told the court that several weeks after they found Biscuit, they decided to keep him and had him neutered and declawed.

Willich testified that Biscuit had wandered into his yard “wet, chilled and hungry.” It was raining. Marjorie, his “adult daughter,” dried the cat and fed it. It had a cough. Marjorie drove around the neighborhood but did not see any signs about a lost cat. After two months, Deas-tadeai “presented herself at my front door claiming that the stray was hers and demanding that I give it to her.” Willich said he did not return the cat to Deasta-deai when she asked him to because she had neglected him and failed to properly care for him. He testified that in the justice court Deastadeai had described her cat as being only black, not black and white as she was now claiming (the trial court denied a pretrial motion filed by Deastadeai asking for genetic testing). Willich also said that is was customary for people in Plano to put up signs for lost animals in sturdy text paper and Deasta-deai said she only used regular paper clearly indicated a lack of real concern for Biscuit. The medical records from the veterinarian indicated Biscuit had indeed been neglected but was otherwise healthy. He had no fleas.

At the conclusion of the testimony, the county court judge found Deastadeai to be the original and primary owner and ordered the return of cat to be conducted two days later at Deastadeai’s attorney’s office. He declined to order attorney’s fees or to order Deastadeai to reimburse Willich for his expenses in caring for the cat. Willieh’s offer to pay $50 for the cat as originally plead was turned down by Deastadeai. Willich reurged his argument that his family had been with the cat for a year and a half and had “attachments” to the cat but the court stood firm in its ruling. Willich subsequently filed a motion for new trial and a hearing was held on the motion during which attorneys for both sides presented argument. The motion was denied and Willich then filed a motion for emergency stay and ultimately this appeal.

The “Statement of Claim” in the justice court reflects Deastadeai sought $50 in damages and the “Transcript of Judgment” recites the case as being a “Suit Upon Return of Lost Cat $80” and “Judgment for Defendant.” The pleadings in the county court at law valued the cat at $50; the judgment of the county court references only “the feline.”

Section 22.220(a) of the government code provides, “Each court of appeals has appellate jurisdiction of all civil cases within its district of which the district courts or county courts have jurisdiction when the amount in controversy or the judgment rendered exceeds $100, exclusive of interest and costs.” Tex. Gov’t Code Ann. § 22.220(a)(Vernon 1988). The amount in controversy being below the minimum required to invoke the jurisdiction of this Court, this appeal is DISMISSED for want of jurisdiction.