Opinion
09-22-00027-CR
12-13-2023
MANUEL FRANCO, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Submitted on March 28, 2023
On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 20-08- 10268-CR
Before Golemon, C.J., Johnson and Wright, JJ.
MEMORANDUM OPINION
W. SCOTT GOLEMON, CHIEF JUSTICE
A grand jury indicted Manuel Franco for the offense of murder. See Tex. Penal Code Ann. § 19.02(b)(2). A jury convicted Franco of murdering M.C., rejected the sudden passion special issue, and assessed punishment at forty years of confinement. On appeal, Franco raises six issues challenging: (1) certain evidentiary rulings; (2) the sufficiency of the evidence; and (3) the jury's rejection of the sudden passion special issue. For the reasons discussed below, we affirm the trial court's judgment.
BACKGROUND
On August 23, 2020, after drinking together, M.C. and his employee, Franco, got into a verbal and physical altercation. Franco ran over M.C. with a Chevrolet Avalanche causing crushing internal injuries to M.C, who was declared dead a short time later at a regional hospital. Multiple people witnessed the events leading up to M.C.'s death, including several of his children and extended family members. For the purpose of clarity, we identify these witnesses at the outset: Baldomero, M.C.'s nephew and Luis's brother; Luis, M.C.'s other nephew and Baldomero's brother; Gustavo, M.C.'s cousin and employee who was Franco's roommate; M.C.'s daughter, "Bella;" and Armando, Franco's brother.
To protect the victim's privacy, we refer to him by his initials and his immediate family members by aliases and his extended family members by their first names, as the Texas Constitution grants crime victims "the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process[.]" Tex. Const, art. I, § 30(a)(1).
For purposes of clarity, we use Armando's first name.
Testimony of Baldomero
Baldomero testified that he arrived with his brother at M.C.'s house on the day of the incident between 4 and 5 p.m. They went to the trailer Franco rented on M.C.'s property. When they arrived, Gustavo, Franco, and Armando were present, as were M.C.'s kids. Baldomero said that M.C. and Franco "were talking. I saw that they were tranquil. They were at peace." About thirty minutes later, M.C. gave money to Franco, who went to get more beer. Sometime later, they argued, and M.C. asked Franco and Armando to leave.
Baldomero explained the argument concerned one of Franco's brothers, who M.C. recently fired. Franco told M.C. he did not want to work for him anymore, and M.C. told Franco had to pay the money he owed to him first. Franco touched M.C.'s shoulder, and M.C. shoved him. Baldomero denied that M.C. threatened Franco about leaving and said that M.C. refused to fight Franco because Franco was younger, so they did not throw any punches. Armando told M.C. they could fight because he was not younger.
M.C. hit Armando first, and after rolling on the ground, they eventually separated. Baldomero said that M.C. knocked Armando out and gave him a "pretty hard blow, but he got up." Baldomero testified that Armando defended himself the whole time. Baldomero described M.C. and Armando as having "a clean fistfight."
Baldomero testified that during the fight, Franco was "slowly backing the truck in reverse[,]" then "put it going forward and he accelerated." Baldomero explained, "Franco accelerated the truck. He hit him on the side. [M.C] turned around, fell to the ground. And with the tire from the front, it went over his chest." Baldomero determined the fight was over when Armando and M.C. separated, which is when Franco ran the truck into M.C. After Franco hit M.C, Franco kept accelerating, made a right turn, and got the truck stuck on a stump.
Baldomero testified that after he saw M.C. on the ground, he broke the truck windows with a stick to try to stop the truck, because the kids were on a four-wheeler in front of it. Baldomero pulled Franco from the truck and tried to hold him, but he ran. When asked if he and Franco exchanged blows, Baldomero said, "We kind of like were forced ~ forcing with each other because I was trying to hold onto him." Baldomero testified that Franco threatened to kill him. Baldomero also discussed defense photographs admitted into evidence showing injuries to Franco's face, but Baldomero said Franco did not look like that when he ran off.
Testimony of Gustavo
Gustavo testified that he worked for M.C. and explained that when people quit, M.C. allowed them to leave. He lived in the trailer on M.C.'s property with Franco and was there when M.C. was killed.
Gustavo testified that sometimes, Franco became excited and seemed angry with M.C. when he drank. Gustavo said that Franco's attitude worsened when his newborn daughter passed away, and he seemed to develop a hatred for M.C.
When Franco and Armando arrived at 2 or 3 p.m., Gustavo was in the trailer. Franco and Armando started drinking beer, and Gustavo heard them because he was next to an open window inside the trailer. Gustavo heard them call M.C. over, who was outside with his kids, and told him to drink a beer with them. Gustavo said everything was fine for about two hours. Later, Baldomero and his brother arrived. The brothers, M.C., Armando, and Franco were drinking and having a good time.
Gustavo testified that sometime that evening, Franco began yelling, and M.C. told him to calm down. Franco told M.C. that he was leaving the job, and M.C. told Franco that was fine and just pay the money he owed. Gustavo said initially, they only argued about the resignation. At some point, things became physical with Franco and M.C, but Gustavo did not know who hit first. He explained that Armando and the brothers tried to separate them-Armando grabbed M.C, and Baldomero and Luis grabbed Franco. That ended the fight between Franco and M.C, but Armando continued to ask why M.C. hit Franco. M.C. responded that Franco could leave, and Armando said they would go and bring M.C. the money.
The brothers-Baldomero and Luis- let Franco go, and he climbed into the truck and said, "hey brother, let's go," but Armando kept telling M.C. to hit him. Gustavo said that M.C. told Armando to calm down and it would be better if they left. Armando hit first and threw M.C. on the ground. They rolled in the dirt, and M.C. ended up on top of Armando. Gustavo said he yelled at the brothers to separate them, and after the brothers separated them, Armando and M.C. were standing about ten feet apart. By then, Franco was already in the truck. While M.C. and Armando were separated, Franco accelerated the truck. Gustavo testified, "I think that [Franco] was thinking for his brother to step out to one side so that he could run the truck over." The truck was behind M.C., and "at that moment when Armando went away," Franco drove the truck into M.C.
Gustavo testified that Franco did not try to avoid M.C, and Gustavo believed it was intentional because "the front end of the truck went over his middle part." Gustavo ran over to check on M.C. who was in bad shape and had trouble breathing. Gustavo heard M.C.'s kids screaming, so he told them to call their mom.
Gustavo testified that Baldomero and Luis broke the truck windows and took Franco out, but Gustavo was unsure what happened then, because he was helping M.C. After Franco ran away, Baldomero and Luis helped get M.C. in the house, so they could take him to the hospital.
Testimony of Detective Michael Burnett
Detective Michael Burnett has been assigned to the homicide and violent crimes division for two years with the Montgomery County Sheriffs Office. On August 23, 2020, he was called to a home on Turtle Creek Way in Montgomery County, Texas to investigate a death. When he arrived, Burnett noticed a white truck stuck on some sago palms. He described what he did to investigate, including interviewing witnesses, performing a walkthrough, looking at 9-1-1 call notes, and having the white truck processed for evidence.
When Burnett saw M.C. at the hospital, he was already deceased so Burnett documented the injuries he could see. He also met with Armando at the hospital and documented his injuries. Burnett testified that based on his investigation and experience, he formed an opinion about what happened and developed Franco as a suspect.
Burnett explained that since the truck was parked in the middle of the field, it could have traveled in any direction. If trying to exit, it would not have driven toward M.C. since the property exit was in the opposite direction. When Burnett examined the tire tracks, he did not see evidence of braking or swerving. Burnett testified that photographs admitted into evidence showed bloodstains near the driver door, a shattered window, and damaged front windshield, consistent with what witnesses reported.
Burnett testified that photographs showed no abrasions, broken bones, or bruised areas on M.C.'s hands. He said he would expect more injuries on M.C.'s hands if he inflicted life-threatening injuries that necessitated deadly force. Burnett testified that if M.C. and Armando were still actively fighting, it would have been impossible to hit one with the truck without hitting the other. Since only M.C. was hit, that meant they were already separated, so Burnett did not believe this was done in defense or immediately necessary.
During rebuttal, Burnett testified that neither Franco nor Armando mentioned before trial that they were threatened with a broken beer bottle that night. Burnett again explained that the truck could have gone in any direction to exit, but the driver chose the path that took him over M.C. Burnett testified that based on his review of the evidence, interview with Franco, other statements, and his training and experience, he did not believe this was an accident; instead, he believed it was murder.
After denying that they found any broken beer bottles at the scene, Burnett was shown a photograph of a box with a broken bottle inside. He agreed a broken bottle could be used as a deadly weapon. Burnett did not recall seeing a box with broken bottles at the scene, and felt he would have remembered that. He said it would be unusual for someone to break a beer bottle, threaten a victim, then put it back in the box. By the time they returned to the scene the next day, the crime scene tape had been removed, so the scene could have been compromised and things moved around.
Testimony of Forensic Pathologist Dwayne Wolf
Forensic pathologist, Dr. Dwayne Wolf, is the Deputy Chief Medical Examiner for Harris County. Dr. Wolf described the autopsy procedure, which he said he followed in M.C.'s autopsy, including preparing a report.
During Dr. Wolfs testimony, Franco objected to four autopsy photographs the State sought to introduce, arguing the prejudicial effect would outweigh the probative value. On voir dire examination, Dr. Wolf testified that he could describe the injuries but could not show them without the photographs. After examining them, the trial court overruled Franco's objections and admitted the photographs.
Dr. Wolf discussed his report and testified that he listed the cause of death as "blunt torso trauma" and the manner of death as "homicide." He explained that resuscitation measures began immediately when M.C. arrived at 8:18 p.m., but he was declared dead at 8:52 p.m. Dr. Wolf described pattern injuries on M.C.'s body as seen in the photographs, which he testified was "pretty characteristic of a tire mark of some sort."
He testified that with motor vehicle-pedestrian accidents, they look at the lower extremities and legs for a point of impact. Dr. Wolf explained that "we usually actually open the skin of the entire legs and sometimes up on to the back to look for those hemorrhagic pockets that may not have any markings on the overlying skin surface; but they are significant in that they might tell you the initial point of impact." Dr. Wolf testified about a photograph Franco objected to that showed M.C.'s skin peeled away from his back and legs and a wound on his right buttock and lower back. Dr. Wolf described it as "a hemorrhagic pocket on the right buttock" and "disruption of the subcutaneous tissues with hemorrhage, but there is some fragmentation of skeletal muscle." He testified this was a likely point of impact and characterized it as a "degloving" injury. Based on the hemorrhagic pocket, he expected the impact to have "some speed and be sudden."
Dr. Wolf also discussed two photographs showing the sternum and ribs. He testified there were multiple rib fractures consistent with crush-type injuries and noted injuries to M.C.'s sternum. He said that crushing fractures as seen here could be fatal. He testified that one photograph showed the "breastbone was cracked" under M.C.'s third rib "from blunt trauma from the motor vehicle crash."
Dr. Wolf then described his examination of M.C.'s internal organs and another photograph showing damage to M.C.'s liver, which he described as "pulpified" from a "crushing injury." He would expect significant blood loss with this type of injury. Dr. Wolf testified the crushing injuries and pulpified liver were potentially fatal.
Testimony of Armando Franco
Armando, Franco's brother, testified at trial. That Sunday afternoon, Armando arrived at Franco's trailer around 12 or 1 p.m., and after they bought food and beer, they returned to Franco's trailer about 2 p.m. When they arrived with the food, nobody else was in the trailer; Gustavo was mowing in front of M.C.'s house.
Armando testified that M.C. came over about thirty minutes after they arrived and asked for a beer while they were inside eating, but Gustavo stayed behind to mow. Once M.C. came over, they went outside, and everything was fine. Later, M.C.'s nephews, Baldomero and Luis, came by.
Armando testified that Franco told M.C. he did not want to work for him anymore, and M.C. became very upset. Although he did not hear their conversation, Armando saw M.C. strike Franco twice around the face with his hand. Armando did not see Franco hit M.C. back. Franco said, "Let's go[,]" and wanted to leave to get money to repay what M.C. lent him to come to the United States. Armando testified that M.C. would not let them leave, although he did not tell police this.
Armando testified he fought with M.C, because M.C. shoved him when Armando told M.C. not to hit Franco. Armando then told M.C. to hit him, and M.C. did, knocking him out. When Armando tried to get up, M.C. hit him in the chest, then Baldomero and Luis began throwing beer bottles at him. Armando said he did not know what happened after that. Armando explained that after his brother got in the truck and drove it at M.C, he did not know what happened until after M.C. had been struck. He testified that he got up and saw the truck was on the other side, they were throwing bottles, and he was "woozy."
After watching his interview, Armando admitted telling detectives that the nephews were the ones that beat him up. Armando testified that M.C, Baldomero, and Luis injured him but could not say who caused which injury. While he testified, Armando discussed photos showing his injuries, which included black eyes and an injured arm.
Testimony of Manuel Franco
Defendant, Manuel Franco, also testified. On August 23, 2020, he had been in the United States for eleven months and worked for M.C. mowing lawns. His only day off was Sunday.
Franco testified that on the day this happened, M.C. knocked on the door while Armando was eating. Franco was in the truck talking on the phone, and Armando came outside. When Franco finished talking on the phone, M.C. and Armando were standing there drinking. Franco said everyone was friendly, but the alcohol started to affect M.C, who complained that Franco did not work fast enough and wanted to lower his salary. Franco told M.C. that if their work was not good enough, then he would look for another job. Franco testified that M.C. got upset and hit him once in the face.
Franco said he was scared and wanted to leave, but M.C. would not let them. To keep Franco from leaving, M.C. hit Armando. Franco testified that he saw M.C. and Armando fight and that M.C. "won." Franco said that M.C. tried to hurt Armando with a broken bottle but did not get a chance. Franco testified that Baldomero and Luis would not help break up the fight. Franco explained, "So then I tried to stop [M.C] . . . because he is saying . . . then that he was going to kill my brother and then he was going to kill me so that no one would find out."
Franco said that after M.C. threatened him, he went inside the truck and was "very frightened." Franco testified, "I didn't want to do it, but I hit [M.C] with the truck." He explained that he did not intend to hit M.C, he was trying to help his brother so that M.C. would not hit him with a bottle. Franco agreed that he turned the truck on and had to move the shifter. Franco said the truck moved forward, and he hit M.C. without aiming. According to Franco, M.C. was hit because he was in front of the truck. Franco testified that when he moved the truck forward, his brother had moved away, M.C. and Armando were about two meters apart, and it was impossible for him to hit Armando when he moved the truck forward. He agreed that what he did killed M.C. and that running somebody over with a truck was clearly dangerous to human life. Franco testified that although he told detectives in the interviews that he hit M.C. while trying to get help, that was untrue.
Franco testified that Baldomero and Luis broke the truck windows while he was still inside then started hitting him. After Franco was out of the truck, they said they would kill him and his brother. He said he was "very frightened," but they were drunk so he got away. He went to the neighbor's house, and she called the police. Franco told the police he needed help and an ambulance but did not tell them he ran over M.C. He testified that once the police arrived, he left the neighbor's house and went into the woods, because he was scared. He walked in the woods that night and "was quite beaten up."
Franco testified that the next day, three men claiming to be M.C.'s brothers approached him and beat him. About ten or fifteen minutes later, the police arrived and arrested him, which is when police took photographs of him. Franco testified that he did not mention being threatened with a broken bottle when he called 9-1-1 and did not show officers broken bottles when he returned to the scene with them. Franco also testified that M.C. hit him one time, but later, M.C.'s nephews and brothers hit him multiple times; photographs of Franco's injuries were taken after the brothers and nephews hit him, and M.C. did not cause those injuries.
Testimony of Other Witnesses
"Bella," M.C.'s twelve-year-old daughter, testified. Bella witnessed the events leading up to M.C.'s death. She was outside riding a "motorcycle" with two of her siblings. She knew her father was drinking with the men and eventually saw a fistfight. Bella explained, "I just saw that a man fell down. And that was all that I saw to that point. I just saw they were fighting; but afterward, I did see when they trampled on top of him." Bella and her siblings saw the truck going towards M.C. and then run over him.
M.C.'s neighbor, Karen Fields, testified that on August 23,2020, Franco came to her house. Fields testified that she heard "a loud noise like a truck revving its tires" near the trailer next door, so she and her husband walked down their porch steps to see what was happening. She then saw the back tires spinning and asked why they did not just turn the engine off, which is when Franco appeared. Fields testified that although Franco spoke Spanish, she realized he wanted her to call the police, so she did. Fields said the tires were still squealing when Franco appeared, and she saw someone else exit the truck and another man next to the truck with a piece of wood. Fields said Franco's arm was bleeding, his shirt was torn, and he was "distraught." She testified that he ran when police arrived.
M.C.'s wife, "Sally," also testified. She was inside when M.C. was hit, but her kids came inside crying and told her something happened to M.C. She took M.C. to the hospital about twenty-five minutes away, and they told her at the emergency room that M.C. Died.
Photographs and Other Evidence
Additional evidence admitted at trial included the autopsy report, diagram of M.C.'s property, and photographs of: the Avalanche; autopsy; M.C.'s property; the trailer; Armando's injuries; and Franco's injuries. Franco objected to the admission of four autopsy photographs and the exclusion of photographs of Franco taken the day he was arrested.
SUFFICIENCY OF THE EVIDENCE
In issues four and five, Franco complains the evidence was insufficient to support the jury's guilty verdict and that the trial court erred in denying his motion for directed verdict. In support of these issues, Franco contends that if he is guilty of anything, it is manslaughter as the evidence showed that he acted recklessly rather than with intent to cause serious bodily harm. We address these issues first, since if meritorious, we would render a judgment of acquittal rather than reverse and remand. See Price v. State, 502 S.W.3d 278, 281 (Tex. App.-Houston [14th Dist] 2016, no pet.); see also Tex. R. App. P. 47.1. We address these issues together as we treat a complaint about the denial of a motion for directed verdict "as a challenge to the legal sufficiency of the evidence." See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996); Andrus v. State, 495 S.W.3d 300, 304 (Tex. App.-Beaumont 2016, no pet.).
In evaluating legal sufficiency of the evidence to prove the charged offense, we review all the evidence in the light most favorable to the verdict 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, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,13 (Tex. Crim. App. 2007); see also Metcalf v. State, 597 S.W.3d 847, 855 (Tex. Crim. App. 2020). Under the Jackson standard, we defer to the jury's responsibility to fairly resolve conflicting testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. See Hooper, 214 S.W.3d at 13. The jury as factfinder is the sole judge of the weight of the evidence and witnesses' credibility, and it may believe all, some, or none of the testimony presented by the parties. Metcalf, 597 S.W.3d at 855 (citations omitted). We do not reweigh the evidence or determine the credibility of the evidence, nor do we substitute our judgment for that of the factfinder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). "Each fact need not point directly and independently to a defendant's guilt, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Balder as v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016) (citation omitted).
A person commits murder if he "intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual." Tex. Penal Code Ann. § 19.02(b)(2). The indictment alleged that Franco intended to cause serious bodily injury to M.C. and caused M.C.'s death, by committing an act clearly dangerous to human life, to-wit, striking M.C. with a motor vehicle. The court charged the jury on murder and the lesser-included offense of manslaughter. A person commits manslaughter "if he recklessly causes the death of an individual." M § 19.04(a).
"Direct evidence of the requisite intent is not required[.]" Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002).
A jury may infer intent from any facts which tend to prove its existence, including the acts, words, and conduct of the accused, and the method of committing the crime and from the nature of wounds inflicted on the victims. . . . This has been the rule in Texas for over 100 years.Id.; see Shugart v. State, 796 S.W.2d 288, 292 (Tex. App.-Beaumont 1990, pet. ref d) (explaining that where intent is only element unsupported by direct proof, it may be inferred from circumstances in evidence). A jury may consider events that occurred before, during, and after the commission of the offense. Pitonyakv. State, 253 S.W.3d 834, 844 (Tex. App.-Austin 2008, pet. ref d).
Depending on the evidence of the circumstances, a jury may properly infer intent when a defendant accelerates a motor vehicle. See, e.g., Hunter v. State, 468 S.W.2d 96, 98-100 (Tex. Crim. App. 1971) (defendant accelerated while a passenger was half-way in the window resulting in serious bodily injuries to the passenger); Samuels v. State, 785 S.W.2d 882, 886 (Tex. App.-San Antonio 1990, pet. ref d) (jury found defendant "acted with intent to cause serious bodily injury at the moment he accelerated as his mother clung to the hood of the car"); Shugart, 796 S.W.2d at 290-93 (jury was free to disbelieve defendant's testimony he did not intend to hit victim with his car and infer intent where contrary evidence showed his vehicle's tires squealed, moved forward, struck and knocked victim down, and drove off without rendering aid); see also Johns v. State, No. 07-17-00111-CR, 2018 WL 2926319, at *2 (Tex. App.-Amarillo June 11, 2018, pet. refd) (mem. op., not designated for publication) (evidence supported equally logical inference that he knew what he was doing when he got behind the wheel and accelerated at brother, presuming jury resolved conflict in favor of verdict); Herring v. State, No. 02-12-00546-CR, 2014 WL 173481, at *5 (Tex. App.-Fort Worth Jan. 16, 2014, pet. refd) (mem. op., not designated for publication) (jury could have rationally inferred defendant's intent to kill trooper from defendant's acceleration directly toward one trooper, changing direction toward second trooper, revving engine and accelerating slow-moving tractor as fast as it would go with the bucket positioned to either protect defendant or ram troopers).
Franco argues his testimony that he did not intend to hurt M.C. negated the requisite element of intent. Yet, there was ample evidence from which a jury could have rationally inferred that Franco intended to cause serious bodily injury to M.C. Hart, 89 S.W.3d at 64; Shugart, 796 S.W.2d at 292. Multiple witnesses testified that the fight between Armando and M.C. ended, and they were separated. The jury heard testimony that once Armando and M.C. were separated, Franco accelerated the truck. One witness even testified that he believed Franco was waiting for Armando to get out of the way, so he could "run the truck over." Franco himself testified that Armando had moved away and they were "two meters apart." Burnett testified that after examining tire tracks, there was no evidence Franco braked or attempted to swerve when he hit M.C. Additionally, the evidence established that the property exit was in the opposite direction from the way Franco drove when he hit M.C. Franco agreed when he testified that what he did killed M.C. and that running somebody over with a truck endangered human life.
The jury was free to weigh the witnesses' testimony and their credibility and resolve conflicts in the evidence. See Jackson, 443 U.S. at 318-19;Metcalf, 597 S.W.3d at 855; Hooper, 214 S.W.3d at 13. Viewing the evidence in the light most favorable to the verdict, we conclude that a rational jury could infer that Franco intended to cause serious bodily injury to M.C. when he accelerated the vehicle and drove into M.C. without braking or swerving and admittedly caused M.C.'s death. See Hart, 89 S.W.3d at 64. We overrule issues four and five.
EVIDENTIARY RULINGS
In his first three issues, Franco challenges the trial court's evidentiary rulings. We review a trial court's decision on the admission or exclusion of evidence for an abuse of discretion and must uphold the trial court's ruling if it was "within the zone of reasonable disagreement." Wells v. State, 611 S.W.3d 396, 427 (Tex. Crim. App. 2020); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). A trial court abuses its discretion if it acts without reference to any guiding rules and principles or acts arbitrarily or unreasonably. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). We uphold the trial court's decision if it is correct on any theory of law applicable to the case. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009); Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002). If the trial court erred in admitting or excluding evidence, then we generally apply the harm standard in Texas Rule of Appellate Procedure 44.2(b), which requires us to disregard any errors that do not affect substantial rights. See Tex. R. App. P. 44.2(b); see also Walters v. State, 247 S.W.3d 204, 218-19 (Tex. Crim. App. 2007).
Evidence having any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence is relevant. See Tex. R. Evid. 401. Rule 403 permits a trial court to exclude relevant evidence "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. Rule 403 favors admitting relevant evidence and "carries a presumption that relevant evidence will be more probative than prejudicial." Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010) (citation omitted).
Autopsy Photographs
In issue one, Franco argues the trial court erred by admitting autopsy photos over his objection. During the medical examiner's testimony, the State offered ten autopsy photographs. Franco objected to four of the photographs, which included State's Exhibits 41, 42, 43, and 44, arguing the prejudicial effect would outweigh the probative value. See Tex. R. Evid. 403. He did not object to other autopsy photographs, including State's Exhibits, 33 and 36-40. The complained-of photographs showed: in Exhibit 41, M.C. face down on the autopsy table unclothed with the skin from his back to his legs removed to reveal a hemorrhagic pocket on his right buttock; in Exhibit 42, a close up photograph of M.Cs rib cage with the skin removed to reveal multiple fractures; in Exhibit 43, a photograph of M.C.'s rib cage and sternum with the skin removed to reveal multiple fractures to the ribs and sternum; and in Exhibit 43, a photograph of M.C.'s "pulpified" liver. The State countered that eighty-five autopsy photos were taken, and they had only chosen to show ten to the jury. The trial court permitted Franco's counsel to voir dire Dr. Wolf about the photographs, and he testified that although he could describe the injuries, he could not show them without using photographs. The trial court reviewed the photographs, overruled the objection, and admitted them into evidence.
Admissibility of photographs is within the trial court's sound discretion. Rayford v. State, 125 S.W.3d 521,529 (Tex. Crim. App. 2003) (citing Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002)). Autopsy photographs are generally admissible, unless they depict mutilation of the victim caused by the autopsy itself. Id.; Salazar, 38 S.W.3d at 151. In determining whether the probative value of photographs is substantially outweighed by the danger of unfair prejudice, we consider: the number of exhibits offered; their gruesomeness; their detail; their size; whether they are in color; whether they are close up; whether the body depicted is clothed; the availability of other means of proof; and other circumstances unique to the individual case. See Hayes, 85 S.W.3d at 815; Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991). "Changes rendered by the autopsy process are of minor significance if the disturbing nature of the photograph is primarily due to the injuries caused by the appellant." Hayes, 85 S.W.3d at 816 (citing Santellan v. State, 939 S.W.2d 155, 173 (Tex. Crim. App. 1997)).
Dr. Wolf explained that he could not show the injuries without the photographs, and the record established that M.C.'s outward injuries consisted of nonfatal contusions and abrasions. Dr. Wolf testified that the hemorrhagic pocket on the buttock could not be seen without removing the skin and helped determine the likely point of impact. This hemorrhagic pocket led him to believe the impact "to have some speed and be sudden." Likewise, the rib fractures and sternum fractures could not be seen without the skin removed, which Dr. Wolf testified helped establish potentially fatal "crushing" injuries. Similarly, the doctor explained that a "crushing injury" resulted in the "pulpified" liver, from which you would expect "significant blood loss." Dr. Wolf testified these crushing injuries and the "pulpified liver" were potentially fatal.
If the skin were not pulled back in these autopsy photographs, the jury could not have seen the full extent of M.C.'s fatal injuries and the likely point of impact, and "[t]he action of pulling back the skin did not make the evidence significantly more gruesome." See Hayes, 85 S.W.3d 816. We believe the trial court was within the "zone of reasonable disagreement" in admitting State's exhibits 41-44, thus did not abuse its discretion. See Wells, 611 S.W.3d at 427; Montgomery, 810 S.W.2d at 391.
Even if the pictures were unduly prejudicial under Rule 403, any error that does not affect an appellant's substantial rights is harmless. See Hayes, 85 S.W.3d at 816; see also Tex. R. App. P. 44.2(b). "We will not overturn a case on a non-constitutional error if, after examining the record as a whole, we have a fair assurance that it did not influence the jury, or influenced them only slightly." See Hayes, 85 S.W.3d at 816 (citation omitted). Considering the weight of other evidence, including other autopsy photographs, testimony from other witnesses, and Franco's own testimony admitting that he hit M.C. and his actions killed him, we have fair assurance the admission of State's exhibits 41-44 did not unduly influence the jury in its decision. See id. We overrule issue one.
Photographs of Franco's Injuries
In issue two, Franco complains the trial court erred when it excluded thirty-six photographs of his injuries taken the day of his arrest. These included Defense Exhibits 39-79. After the trial court conducted a hearing outside the jury's presence and reviewed the photos, it admitted Defense exhibits 43, 66-67, 71, and 79. The trial court excluded photographs marked as Defense Exhibits 39-42, 44-65, 68-70, and 72-78. The trial court also previously admitted Defense Exhibits 4 and 5, which were photographs of Franco's face showing two black eyes, a swollen lip, and scratches.
The State objected to Defense Exhibits 39-79, arguing they were irrelevant since they did not depict Franco's face, and the testimony established that M.C. only hit Franco once in the face before Franco ran over M.C. The State argued that M.C.' s nephews and brothers inflicted the other injuries after the offense. The State also objected to the exhibits as being cumulative with a likelihood of confusing and misleading the jury.
The trial court conducted a hearing outside the jury's presence and reviewed the photographs before ruling. The trial court reasoned there were "two separate altercations" that day, and the one between M.C. and Franco was "very minor, if anything . . . but the actual fight occurred between Armando and [M.C.]" The trial court also explained that there was some relevance as to what Franco looked like on that day so she would let "a couple" into evidence, but the exhibits were cumulative based on the photographs already admitted.
The evidence established that before the offense, M.C. hit Franco once or twice in the face, thus the trial court reasonably concluded exhibits showing injuries other than to Franco's head or face could mislead or confuse the jury. See Tex. R. Evid. 403. Likewise, the trial court could have reasonably concluded that additional photographs showing injuries to Franco's face and head were cumulative of previously admitted Defense Exhibits 4 and 5. See id. The trial court's decision was "within the zone of reasonable disagreement" and therefore did not constitute an abuse of discretion. See Wells, 611 S.W.3d at 427; Montgomery, 810 S.W.2d at 391. We overrule issue two.
Burnett's Opinion Testimony
In issue three, Franco argues the trial court erred by allowing Burnett to provide the jury with his opinion about Franco's state of mind at the time of the incident. He contends that Burnett's testimony was not admissible under either Rule 701 or 702. See Tex. R. Evid. 701 (governing lay opinion testimony), 702 (governing expert opinion testimony).
Franco complains on appeal of the following exchange during the State's rebuttal evidence:
[PROSECUTOR:] Based on your review of the evidence and the statements that you took, the questions that were asked of Manuel Franco, and your training and experience as a homicide detective, do you believe this was an accident?
[BURNETT:] No, sir.
[PROSECUTOR:] What do you think it was?
[DEFENSE COUNSEL:] Objection; calls for a conclusion of law, Your Honor. He is not an expert to be able to give that opinion.
[PROSECUTOR:] He actually is an expert, Your Honor.
[COURT:] Overruled. I will allow it. Go ahead.
[PROSECUTOR:] What do you think this was?
[BURNETT:] A murder.
Right after this exchange, Defense counsel asked Burnett, "So it is your opinion that it is a murder?" Burnett responded, "Yes, sir."
As a prerequisite to presenting a complaint on appeal, the party must make a timely objection. See Tex. R. App. P. 33.1. "If a defendant fails to object until after an objection question has been asked and answered, and he can show no legitimate reason to justify the delay, his objection is untimely, and any claim of error is forfeited." Luna v. State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008) (citation omitted). "To avoid forfeiting a complaint on appeal, the party must 'let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it.'" Mosley v. State, 666 S.W.3d 670, 676 (Tex. 2026) (quoting Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009)); Sartin v. State, No. 09-21-00312-CR, 2023 WL 6850594, at *5 (Tex. App.-Beaumont Oct. 18,2023, no pet. h.). Error in the admission of evidence is cured where the same evidence comes in elsewhere without objection. Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (quoting Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)); see also Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (explaining that objection to evidence will not result in reversal when the same evidence was received without an objection, either before or after the complained-of ruling).
Franco's objection to Burnett's opinion that this was not an accident was untimely, as he failed to object to that question and answer without offering a reason to justify the delay. See Luna, 268 S.W.3d at 604. Although Franco timely objected to Burnett's testimony that he believed this was murder, Franco then elicited the same testimony from Burnett. Any error in the complained-of ruling regarding Burnett's opinion testimony that this was murder was cured when the defense asked the same question and Burnett offered the same opinion. See Lane, 151 S.W.3d at 193; Leday, 983 S.W.2d at 718. We overrule issue three.
PUNISHMENT AND SUDDEN PASSION
In his sixth issue, Franco complains the jury erred when it rejected the sudden passion issue. The punishment charge asked jurors whether they found that Franco proved by a preponderance of the evidence he caused M.C.'s death "under the immediate influence of sudden passion arising from an adequate cause." The jury answered, "We do not."
During punishment, "the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from adequate cause[,]" and if he proves so by a preponderance of the evidence, the offense is a second-degree felony. Tex. Penal Code Ann. § 19.02(d). "Sudden passion" is "passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation." Id. § 19.02(a)(2). "Adequate cause" is a "cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Id. § 19.02(a)(1). Generally, the issue of sudden passion is "resolved exclusively by the jury's assessment of whether the witness is credible." Cleveland v. State, 111 S.W.3d 374, 389 (Tex. App.-Houston [1st Dist] 2005, pet. refd).
Sudden passion is an affirmative defense on which the defendant bears the burden of proof by a preponderance of the evidence. Tex. Penal Code Ann. § 19.02(d). In criminal cases, affirmative defenses may be evaluated for legal and factual sufficiency. See Butcher v. State, 454 S.W.3d 13,20 (Tex. Crim. App. 2015). In a legal-sufficiency review of an affirmative defense, we first examine the record for a scintilla of evidence favorable to the jury's finding and disregard all evidence to the contrary unless a reasonable factfinder could not. See id.; Matlock v. State, 392 S.W.3d 662, 669-70 (Tex. Crim. App. 2013). The jury's finding rejecting a defendant's affirmative defense should be overturned for lack of legal sufficiency only if the appealing party establishes that the evidence conclusively proves his affirmative defense, and '"no reasonable [factfinder] was free to think otherwise.'" See Butcher, 454 S.W.3d at 20 (quoting Matlock, 393 S.W.3d at 670).
In a factual-sufficiency review of a finding rejecting an affirmative defense, we examine the evidence in a neutral light. See Butcher, 454 S.W.3d at 20; Matlock, 393 S.W.3d at 671. We cannot overrule a jury's finding rejecting a defendant's affirmative defense unless, '"after setting out the relevant evidence supporting the verdict, the court clearly states why the verdict is so much against the great weight of the evidence as to be manifestly unjust, conscience-shocking, or clearly biased.'" See Butcher, 454 S.W.3d at 20 (quoting Matlock, 393 S.W.3d at 671).
Franco focuses on the altercation between Armando and M.C. as causing his sudden passion. The evidence supporting the jury's finding rejecting the sudden passion issue included testimony this was a "clean fistfight," Armando could defend himself, and the fight between Armando and M.C. was over when Franco ran over M.C. Even Franco testified they were about "two meters" apart when he moved the truck. The evidence also established a chain of affirmative actions by Franco, including getting into the truck, starting it, putting it in gear, and driving forward into M.C. Since more than a scintilla of evidence supports that these circumstances would not "commonly produce a degree of... terror in a person of ordinary temper[] sufficient to render the mind incapable of cool reflection[,]" it was legally sufficient to support the jury's finding rejecting sudden passion. See Tex. Penal Code Ann. § 19.02(a)(1), (d); see also Butcher, 454 S.W.3d at 20.
Examining the evidence in a neutral light, we cannot say that "the verdict is so much against the great weight of the evidence as to be manifestly unjust, conscience-shocking, or clearly biased." See Butcher, 454 S.W.3d at 20; Matlock, 393 S.W.3d at 671. Franco testified that he was trying to help his brother, and he was "very frightened." He also testified that M.C. threatened to kill them and threatened Armando with a broken bottle. Yet, Franco admittedly did not tell police about the broken bottle before trial, and as explained above, testimony from multiple witnesses showed this was a fistfight, which was over when Franco hit M.C. with the truck. A jury could likewise reasonably conclude the series of affirmative actions Franco undertook before hitting M.C. showed he was deliberate and "capable of cool reflection." See Tex. Penal Code Ann. § 19.02(a)(1). We defer to the jury's responsibility to weigh the evidence and witnesses' credibility, and it was free to determine Franco's testimony was not credible. We conclude the evidence was factually sufficient to support the jury's finding rejecting Franco's claim of sudden passion. See Butcher, 454 S.W.3d at 20; Matlock, 393 S.W.3d at 671; see also Tex. Penal Code Ann. § 19.02(a)(1), (d).We overrule Franco's sixth issue.
CONCLUSION
Having overruled each of Franco's issues, we affirm the trial court's judgment.
AFFIRMED.