Opinion
01-21-00360-CR
01-03-2023
RAYMOND JACKSON, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish. Tex.R.App.P. 47.2(b).
On Appeal from the 184th District Court Harris County, Texas Trial Court Case No. 1520691
Panel consists of Justices Kelly, Rivas-Molloy, and Guerra.
MEMORANDUM OPINION
Amparo Guerra Justice
A jury convicted appellant Raymond Jackson of the felony offense of murder, and the trial court assessed his punishment at confinement for life. In two issues, appellant contends that the trial court erred in (1) failing to stop the proceedings during his testimony in the guilt/innocence phase when it became apparent he might not be competent at that time and (2) finding the surveillance video more probative than prejudicial. We affirm.
Background
Enayatolah Khorsand, the complainant, owned and operated an auto parts salvage shop in Houston, Texas. Khorsand occasionally paid appellant to do odd jobs around the shop.
On August 18, 2016, appellant spent part of the day at Khorsand's shop and remained there after Khorsand closed the shop for the day. Satiel Argueta, a longtime employee, testified that when he left the shop at around 6:10 p.m., appellant was still there with Khorsand. He testified that he later identified appellant in a still photograph taken from the shop's surveillance video. Argueta also made an in-court identification of appellant.
Jarvis Banks, a shop customer, picked up a part from the shop that day. Banks testified that Khorsand agreed to stay late and wait for him because Banks was unable to get to the shop before 6:00 p.m. Banks testified that when he arrived shortly after 6:00 p.m., Khorsand and appellant were inside the shop. After he obtained the part, Banks left.
Francisco Babuena, who lived near the shop, had known Khorsand for fifteen years. On August 18, 2016, Babuena stopped by the shop during his lunch hour to visit. He testified that Khorsand and appellant were both there. After Babuena returned home to do some welding work, appellant stopped by his home and asked for a long-sleeved shirt. Babuena gave him a shirt and appellant left, after which Babuena returned to work. Babuena testified that he left work around 6:00 p.m. that day. As he was driving home, he noticed Khorsand's car parked outside the shop and that the shop's lights were turned off. Babuena testified it was unusual for Khorsand to leave his car in the lot if he was not there so he went inside to check on him. When Babuena went inside the shop, he discovered Khorsand's body on the floor. He called Argueta and 911 and flagged down a passing patrol car.
Houston Police Department Patrol Officer A. Ayala was dispatched to the scene following Babuena's 911 call. When he and his partner arrived, they entered the shop where they discovered a headless body on the ground.
Megan Timlin, a Senior Forensic Audio/Video Analyst for the Houston Forensic Science Center, obtained the shop's video surveillance and showed it to the detectives at the scene. Timlin later took the surveillance video to her office where she obtained approximately ten still images from the surveillance video.
The footage shows Khorsand behind the shop counter and appellant seated in a chair across from him. At one point, Khorsand goes into the back office area and appellant follows. Khorsand and appellant are then out of the range of the security camera for several minutes. After approximately three minutes elapse, Khorsand is seen on his back on the floor, with a pool of blood forming around the back of his head, trying to push someone away. Appellant then enters the frame with a baseball bat and begins striking Khorsand repeatedly with the bat for approximately two minutes as Khorsand raises his hands to defend himself and tries to kick appellant away. Appellant then exits the side door of the office into a storage area and returns a moment later with a machete. Khorsand was still alive at that time. Appellant begins striking Khorsand with the machete until Khorsand goes limp. The appellant leaves again during which time Khorsand can be seen moving slightly. When appellant returns several second later, he stands over Khorsand and begins striking him again with the machete. After striking Khorsand several times in the chest, appellant leans over Khorsand and begins sawing, eventually decapitating Khorsand. Moments later, appellant walks out of the shop carrying a plastic bag containing Khorsand's head.
Appellant was arrested and charged with Khorsand's murder.
The State offered two versions of the enhanced video at trial-a shortened version and a second version which included the entire recording from the security camera. Over defense counsel's objections, the trial court admitted the videos into evidence. Other than a brief few minutes when Khorsand and appellant cannot be seen, the shop's surveillance video captured the offense in its entirety, as described above.
Between the time of his arrest and trial, several doctors evaluated appellant and concluded that he was competent to stand trial. At the pretrial status conference, defense counsel informed the trial court that the doctors who evaluated appellant "all find[] that he is competent," stating:
Gerald Harris, Ph.D., a defense expert, evaluated appellant in October 2016 and November 2016. He noted in his report that appellant had a significant history of mental illness, including a diagnosis of schizophrenia. Dr. Harris concluded that appellant was not legally sane at the time of the offense but that he was competent to stand trial. In December 2019, pursuant to the trial court's order, Dr. Tamika Backstrom-Sieh, Ph.D. evaluated appellant and concluded that he was competent to stand trial. In December 2020, at the State's request, Mark Moeller, M.D., evaluated appellant and concluded that he was sane at the time of the offense and competent to stand trial.
I find that he is competent. Not that I'm a psychologist, but I have had no problem understanding him and his wishes. And he has been very forthcoming with me. And so I don't question the fact that he is competent. He is definitely competent.Defense counsel also advised that appellant had decided to plead not guilty and therefore counsel intended to withdraw the previously filed notice of intent to plead guilty by reason of insanity.
Appellant elected to testify at trial. Although he admitted that he was present at the salvage shop at the time the offense, he denied that he was the person seen on the surveillance video killing Khorsand.
After both sides rested, the jury found appellant guilty of the charged offense. The trial court assessed appellant's punishment at life imprisonment. This appeal followed.
Competency
In his first issue, appellant contends that the trial court erred in failing to stop the proceedings during appellant's testimony in the guilt/innocence phase when it became evident he might not be competent at that time. He argues that, upon hearing appellant's testimony, the trial court should have had concerns that he might no longer have a rational or factual understanding of the proceedings and should have made an informal inquiry into his competency. In response, the State argues that merely because appellant's testimony was refuted or that he gave some non-responsive answers did not mandate that the trial court was required to "suggest" incompetence.
A. Standard of Review and Applicable Law
We review a trial court's implicit decision to not hold a sua sponte informal inquiry into competency for an abuse of discretion. Rodriguez v. State, 329 S.W.3d 74, 78 (Tex. App.-Houston [14th Dist.] 2010, no pet.); see also Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009), superseded by statute on other grounds as recognized in Turner v. State, 422 S.W.3d 676, 692 & n.31 (Tex. Crim. App. 2013)). In conducting our review, we do not substitute our judgment for that of the trial court, but we determine whether the trial court's decision was arbitrary or unreasonable. Montoya, 291 S.W.3d at 426.
"As a matter of constitutional due process, a criminal defendant who is incompetent may not stand trial." Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018) (citing Turner, 422 S.W.3d at 688). A defendant is presumed competent to stand trial unless proved incompetent by a preponderance of the evidence. Tex. Code Crim. Proc. art. 46B.003(b). A defendant is incompetent to stand trial if he does not have (1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or (2) a rational as well as factual understanding of the proceedings against him. Id. art. 46B.003(a). The relevant time frame for determining a person's competence is at the time of the proceedings. Laflash v. State, 614 S.W.3d 427, 432 (Tex. App.-Houston [1st Dist.] 2020, no pet.).
The trial court employs a two-step process to evaluate whether a defendant is incompetent to stand trial. Boyett, 545 S.W.3d at 563. "The first step is an informal inquiry; the second step is a formal competency trial." Id. An informal inquiry is triggered upon a suggestion from any credible source that a defendant may be incompetent. Tex. Code Crim. Proc. art. 46B.004(a), (c), (c-1). At the informal inquiry stage, "there must be 'some evidence from any source that would support a finding that the defendant may be incompetent to stand trial.'" Boyett, 545 S.W.3d at 563 (quoting Tex. Code Crim. Proc. art. 46B.004(c)). This standard requires more than a scintilla of evidence that rationally may lead to a conclusion of incompetency. Id. at 564. The trial court must consider only evidence of incompetency, and it must not weigh evidence of competency against the evidence of incompetency. Id.
The factors that courts consider in determining whether an informal inquiry is required include the capacity of the defendant during criminal proceedings to (1) rationally understand the charges against him and the potential consequences of those pending charges, (2) disclose to his defense counsel pertinent facts, events, and states of mind, (3) engage in a reasoned choice of legal strategies and options, (4) understand the adversarial nature of the criminal proceedings, (5) exhibit appropriate courtroom behavior, and (6) testify. Tex. Code Crim. Proc. art. 46B.024(1). If, after an informal inquiry, the trial court determines that evidence exists to support a finding of incompetency, then the trial court must order a psychiatric or psychological competency examination to determine whether the defendant is incompetent to stand trial and, in most situations, must hold a formal competency trial. Id. arts. 46B.005(a)-(b), 46B.021(b).
B. Analysis
Appellant contends that his testimony at the end of the guilt/innocence phase should have raised concerns on the part of the trial court as to his present competence to stand trial. He argues that, in particular, several of his answers to defense counsel's questions triggered a duty on the part of the judge to make an informal inquiry sua sponte into his competency.
Appellant first points to his testimony in response to defense counsel's questions as to whether he remembered details about the work he did on the day of Khorsand's death:
Q: Okay. And what kind of work were doing? Do you remember that?
A: Just cleaning up sometime and going to get some-or going to get something, you know, off a car or something like that.
Q: Okay. Do you remember-
A: Going to get a tool or something.
Q: Do you remember what you did that day?
A: Not in particular.
Q: Okay.
A: Just the usual thing, you know, going to get a part, going to get, you know, a tool, if somebody needs some-you know, a wrench or socket or something.
Q: So kind of helping out?
A: Yes, sir.
Q: Now, that's what-are you saying that's what you did that day, or that's what you generally did?
A: That's generally what I did.
Q: On this particular day, though, do you recall what you did that day?
A: No. Probably I say the same thing, I guess.
Q: Well-
A: The same thing.
Q: Okay. If you remember, that's one thing. If you don't remember, then you don't remember. So I'm not trying to put words in your mouth. Do you remember what you did that day?
A: Not in particular.
Despite the fact that counsel clarified three times that he was asking if appellant remembered what work he had done that day, appellant asserts that because he responded with descriptions of work he generally did rather than with details of what he did on that specific day, his answers suggest that he simply did not grasp what his attorney was asking. This argument is unavailing. Appellant testified that he could not remember what he did that day (more than five years ago) in particular but that he probably did the same things he generally did at the shop to help out, e.g., getting a part or a tool or cleaning up. This testimony does not demonstrate that appellant was unable to understand what his attorney was asking.
Appellant also points to the following exchange:
Q: Okay. When the video starts and there is a person who looks like you seated in a chair; is that you?
A: Yes, sir.
Q: Okay. Do you recognize yourself in the chair?
A: Yes, sir.
Q: Do you remember that?
A: I guess.
Q: Well, I don't know. I can't-you know, I'm not trying to tell you that you do or you don't, but do you remember being in the office that day, sitting in that chair?
A: Yeah, I sit there. I sit there sometime.
Q: Well, how about that particular day?
A: Yes, sir, that particular day I was sitting there.
Appellant argues that although his counsel pushed him again about whether he remembered sitting in the chair on that particular day, his response was not that he remembered but, instead, he responded, "Yes, sir, that particular day I was sitting there." That appellant did not specifically remember sitting in the chair that day does not show that he was unable to grasp the question being asked of him.
Appellant also argues that he was unable to answer his attorney's questions about what took place in the shop that evening in any coherent way:
Q: The video that the jury saw in this case, you watched it, too, right?
A: Yes, sir.
Q: You had seen that video before, right?
A: Yes, sir.
Q: I played it for you, right?
A: Yes, sir.
Q: Do you remember anything in that video?
A: I guess I was in the wrong place at the wrong time. It was kind of-kind of a weird situation.
Q: What does that mean?
A: I didn't want to be there, but I was there. It was kind of a weird situation. Like I was saying, you know-well, you know, like I was telling you, it was a couple of guys that came in there and one guy left and he came back.
Q: What happened?
A: I don't know.
. . . .
Q: Okay. And the other things that happened on the video where [Khorsand] was hurt, do you remember seeing that? Do you remember watching it?
A: Like I said, I was in a bad place at the wrong time-I was in the wrong place at the wrong time.
Q: What does that mean []?
A: I hate that I was there.
Q: Why?
A: Because I didn't want to see it.
Q: You didn't want to see what?
A: I didn't want to see the incident that happened.
Q: What do you remember about the incident that happened?
A: It was pretty bad.
Q: Well, can you describe it for us?
A: Folks were getting slapped around.
Q: Who was getting slapped around?
A: The guy that got hurt was the guy that was getting slapped around. I got pushed a couple of times myself.
Q: By whom?
A: I don't know.
Q: You don't know who pushed you?
A: No, sir.
Q: Was it somebody you had seen before?
A: No, I don't think so.
Q: Did you recognize in the video who the person was that was hitting [Khorsand]?
A: No, I don't know who he is.
Q: Are you saying it's not you?
A: No, sir.
Q: Let me restate that. Are you the person that was hitting [Khorsand]?
A: No, sir.
Q: Was that somebody else in the video hitting [Khorsand]?
A: Yes, sir.
Q: Is there anything else you can tell us [] about what happened that day?
A: It seemed like kind of fast. Everything was going pretty fast.
Q: What was going so fast?
A: Shucks and carrying on.
Q: Shucks and carrying on.
A: Well you know, things that were happening.
Q: Like what?
A: The whole incident.
Q: Well, can you describe it for us?
A: It was-it's not something that you want to talk about, but it was violent.
Q: Well, you're the one being accused of doing this and this is your trial.
A: Yes, sir.
Q: And you know that, right? This is your trial?
A: Yes, sir.
Q: So if there was ever a time to talk about it, this is the time. You said you were getting pushed around?
A: Yeah, a couple of times.
Q: By who?
A: I don't know.
Q: What did you do after you got pushed around?
Q: Got out of the way.
A: Did you-
A: Tried to get out of the way.
Q: Say it again.
A: Tried to get out of the way.
Q: Did you do anything else?
A: No, sir.
Q: Did somebody else do something else?
A: Well, it just all broke out.
. . . .
Q: What broke out? Do you remember what broke out?
A: The whole situation.
Q: Well, can you describe the situation for us?
A: It was violent.
Q: It was what?
A: It was violent.
Q: Violent?
A: Yes, sir.
Q: And who was-who was participating in this violence?
A: I'm not sure.
Q: Well, what is your recollection on that?
A: I don't know. I'm not sure.
Q: [I]s there anything else you want to tell us about that day?
A: Just a normal day. It was a normal day. I don't think it was raining or nothing.
Q: What does that mean? What you just said, what do you mean by that?
A: It was just a normal day. I don't think it was raining or nothing. It was just a normal day.
. . . .
Q: Do you think that's what we're taking about right now, the weather?
A: No. I was just saying it was just a normal day.
Q: Okay. Is there anything else that you would like to tell us about that day?
A: Not that I know of.
Appellant argues that his answers to defense counsel's questions suggest that he did not have the capacity at that time to "disclose to counsel pertinent facts, events, and states of mind." Tex. Code Crim. Proc. art. 46B.024(1)(B). To the contrary, appellant's testimony reflects that he understood and answered the questions asked of him. While his responses show that he did not recall every detail about the day in question, his testimony did not demonstrate that he lacked the capacity to disclose pertinent facts, events, or states of mind but rather that he answered the questions as well as he could with an incomplete memory of that day. Further, appellant's testimony that he "was in the wrong place at the wrong time," "it was a weird situation," and "it was just a normal day," do not rise to the level of evidence suggesting incompetency. See Johnson v. State, 429 S.W.3d 13, 18 (Tex. App.-Houston [14th Dist.] 2013, no pet.) ("Bizarre, obscene, or disruptive comments by a defendant during court proceedings do not necessarily constitute evidence supporting a finding of incompetency."); see also Childress v. State, No. 03-16-00535-CR, 2018 WL 454774, at *5 (Tex. App.-Austin Jan. 12, 2018, pet. ref'd) (mem. op., not designated for publication) (concluding defendant's insistence on wearing jail-issued clothing instead of street clothes against counsel's advice and act of displaying legal pad in direction of jury on which he had written number "20" during State's closing argument on punishment did not constitute conduct rising to level of evidence suggesting incompetency); Phillips v. State, No. 05-16-00850-CR, 2017 WL 2875522, at *1-2 (Tex. App.-Dallas July 6, 2017, no pet.) (mem. op., not designated for publication) (determining that defendant's decision to remain in cell rather than go into courtroom during revocation hearing against counsel's advice did not suggest incompetency); Demarsh v. State, No. 02-15-00210-CR, 2016 WL 1267702, at *5 (Tex. App.-Fort Worth Mar. 31, 2016, no pet.) (mem. op., not designated for publication) (concluding that while record contained "several written and oral statements . . . that were rambling, grandiose, irrelevant . . . and perhaps delusional," defendant nonetheless exhibited understanding of proceedings against him and trial court did not err in not holding informal inquiry).
Appellant also argues that, in light of his testimony, it is difficult to understand how his decision to testify, when his testimony contradicted a live recording of the events leading to the death of Khorsand, involved an ability to "engage in a reasoned choice of legal strategies and options." See Tex. Code Crim. Proc. art. 46B.024(1)(C).
The record reflects that defense counsel advised the trial court that appellant had decided to forego use of the insanity defense. This strategy was consistent with how he presented his case to the doctors who found him competent to stand trial despite his claim that he did not kill Khorsand. And, appellant's testimony that he was not the person who was depicted in the video killing Khorsand was consistent with his statements to the doctors who each found him competent. As the State notes, the issue of "identity," even if easily refuted by the video, was arguably easier to challenge given the nearly three minutes when appellant and Khorsand are not visible on the video.
Dr. Backstron-Sieh stated in her report that "[a]ppellant indicated that he is still considering how he will respond to the charge; however, he is not interested in the insanity defense stating, 'I'm not crazy.'" Similarly, Dr. Moeller stated in his report that "[appellant] emphatically stated that he would plead "Not Guilty" because he did not murder anyone. He would not consider a plea of [not guilty by reason of insanity] because he would not entertain confessing to the instant offense."
The record also reflects that defense counsel affirmatively represented to the trial court that he had no difficulty communicating with appellant, and that appellant was "definitely competent." At no time before, during, or after appellant's testimony did defense counsel express concern about appellant's ability to communicate. While the relevant time frame for determining a person's competence is at the time of the proceedings, there is nothing in the record indicating a change in circumstances that would suggest incompetence. See Laflash, 614 S.W.3d at 432.
Appellant's testimony shows that he could "consult with [his] lawyer with a reasonable degree of rational understanding" and possessed a "rational as well as factual understanding of the proceedings against" him. See Tex. Code Crim. Proc. art. 46B.003(a). The trial court did not abuse its discretion in implicitly concluding that appellant was competent to stand trial. We overrule appellant's first issue.
Admission of Evidence
In his second issue, appellant contends that the trial court erred when it admitted the two versions of the surveillance video. He argues that the State had sufficient evidence to support a guilty verdict without the videos, which served only to waste the jury's and the trial court's time and subject them to an unnecessarily traumatic experience, and therefore they had no probative value. The State responds that the probative value of the videos outweighed any danger of unfair prejudice.
A. Standard of Review and Applicable Law
We review a trial court's ruling to admit or exclude evidence for abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Tristan v. State, 393 S.W.3d 806, 810 (Tex. App.-Houston [1st Dist.] 2012, no pet.). This deferential standard requires that we uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement. Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim. App. 2018). A trial court judge is given considerable latitude on evidentiary rulings. Id. That different trial judges might reach different conclusions on similar facts does not equate to an abuse of discretion. Id.
Generally, relevant evidence is admissible. Tex. R. Evid. 402. Under Rule 403, the "court may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Tex. R. Evid. 403. "Rule 403 favors the admission of 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). "The term 'probative value' refers to the inherent probative force of an item of evidence-that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation- coupled with the proponent's need for that item of evidence." Id. (quoting Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007)). "'Unfair prejudice' refers to a tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Id. "It is only when there exists a clear disparity between the degree of prejudice of the offered evidence and its probative value that Rule 403 is applicable." Id. (citing Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App. 1997)).
In conducting a Rule 403 analysis, a trial court must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest a decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). "The fact that an item of evidence shows the defendant in a negative light is not sufficient to justify its exclusion on Rule 403 grounds." Inthalangsy v. State, 634 S.W.3d 749, 758 (Tex. Crim. App. 2021). It is the burden of the opponent of the evidence to prove that one of the enumerated "dangers" substantially outweighs the probative value. Montgomery v. State, 810 S.W.2d 372, 377 (Tex. Crim. App. 1990).
B. Analysis
Appellant acknowledges that both versions of the video were relevant to and probative of the elements on which the State bore the burden of proof, including that appellant caused Khorsand's death by "chopping and cutting [him] with a deadly weapon"-either with a sharp object or a machete-as charged in the amended indictment. Instead, he argues that the State had ample other evidence to show what the videos were offered to prove:
• Argueta's testimony that Khorsand and appellant were still at the shop when he left for the day;
• Argueta's identification of appellant as the person depicted in a photo taken at the time of appellant's arrest, his testimony that he was shown a still photo at the scene from the video and that the photo was of appellant, and his in-court identification of appellant;
• Banks' testimony that two people were at the shop-Khorsand and appellant-when he arrived shortly after 6:00 p.m.;
• Officer Ayala's testimony that after speaking with Babuena, he saw a headless body through the door of the building;
• Babuena's testimony that after he finished work at 6:00 p.m., he later drove past Khorsand's shop and saw Khorsand's car in the parking lot and the lights off in the shop, and when he went to check on Khorsand he saw his body on the ground;
• Babuena's identification of appellant as the person in the post-arrest photo, his testimony that appellant was often at Khorsand's shop and was there on the date of the offense, and Babuena's identification of appellant in a still photo from the video at the scene;
• the testimony of the crime scene officer accompanied by crime scene photos, including several machetes and two bats; and
• the assistant chief medical examiner's testimony, along with the autopsy report detailing blunt force and sharp force injuries, and detailed colored photographs of Khorsand's body and head, and the examiner's testimony that cause and manner of death were blunt trauma of head, neck, and extremities and sharp-force extremities with decapitation.
Appellant contends that the surveillance video added nothing to the above evidence and served only to manipulate the emotions of the jury and the trial court before they were presented with a wealth of other evidence with which the case could have been decided without wasting the jury's and the court's time with the disturbing video footage. We disagree. The inherent probative force of the surveillance video is extremely high because it shows the crime as it happened. This is particularly so where, as here, appellant's defense was that he was not the person who killed Khorsand. While it is true that the evidence appellant cites places appellant at the shop on the day in question and relates to discovery of Khorsand's body and the cause and manner of his death, and is therefore probative, none of this evidence documents the actual commission of the crime as the video does.
It is undisputed that the nearly twenty-minute video showing Khorsand being killed and decapitated is disturbing. However, the video accurately depicts the commission of the crime. That is, while the video is gruesome, it depicts "nothing more than the reality of the brutal crime committed." Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995) ("[W]hen the power of the visible evidence emanates from nothing more than what the defendant has himself done we cannot hold that the trial court has abused its discretion merely because it admitted the evidence."); see also Johnson v. State, No. AP-77,030, 2015 WL 7354609, at *30 (Tex. Crim. App. Nov. 18, 2015) (not designated for publication) (concluding that admission of videotape depicting defendant entering store with lighter and bottle of lighter fluid, going behind counter, pouring lighter fluid on complainant, and complainant, on fire, frantically trying to extinguish herself while appellant calmly left store, although disturbing, showed no more than how offense transpired); Driver v. State, No. 01-07-00386-CR, 2009 WL 276539, at *8 (Tex. App.-Houston [1st Dist.] Feb. 5, 2009, pet. ref'd) (mem. op., not designated for publication) (concluding that where photographs depicted nothing more than reality of crime defendant committed, reality of offense served as "powerful" visual evidence which was more probative than prejudicial) (citing Chamberlain v. State, 998 S.W.2d 230, 236-37 (Tex. Crim. App. 1999) (holding that closeup of victim's face with exposed brain matter was more probative than prejudicial)). A trial court does not err simply because it admits graphic evidence. Munguia v. State, No. 11-16-00048-CV, 2018 WL 826751, at *3 (Tex. App.-Eastland Feb. 8, 2018, no pet.) (mem. op., not designated for publication) (citing Sonnier, 913 S.W.2d at 519); Driver, 2009 WL 276539, at *8.
However, even if the trial court erred in admitting the videos, appellant has not shown that he was harmed by the admission of such evidence. See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
C. Harm
Appellant contends that the harm from the admission of the videos occurred during the punishment phase of trial. He concedes that "[w]hile the jury's verdict would doubtless have been the same whether or not they saw the footage," the damage occurred during sentencing because his sentence was more severe than it would have been had the trial court not considered the evidence. The State responds that the trial court properly considered the evidence during punishment.
The erroneous admission of evidence is non-constitutional error that must be disregarded unless it affected appellant's substantial rights. See Tex. R. App. P. 44.2(b). We assess whether an evidentiary error affected a defendant's substantial rights at the punishment phase by asking whether the defendant received a longer sentence as a result of the error. See Davis v. State, 315 S.W.3d 908, 918-19 (Tex. App.-Houston [14th Dist.] 2010), rev'd on other grounds, 349 S.W.3d 517 (Tex. Crim. App. 2011); Ivey v. State, 250 S.W.3d 121, 126 (Tex. App.-Austin 2007), aff'd, 277 S.W.3d 43 (Tex. Crim. App. 2009).
All the evidence adduced at trial either on guilt or innocence may properly be considered when assessing punishment. See Duffy v. State, 567 S.W.2d 197, 208 (Tex. Crim. App. 1978); see also Ingram v. State, No. 12-16-00175-CR, 2017 WL 1534046, at *3 (Tex. App.-Tyler Apr. 28, 2017, no pet.) (mem. op., not designated for publication) (concluding jury could properly consider evidence of brutal nature of murder, including fact that defendant shot victim nineteen times in presence of his infant child, when assessing punishment). The gruesome nature of the video footage admitted during the guilt/innocence phase-which was gruesome because of the brutal crime committed by appellant-could be considered by the trial judge in assessing appellant's punishment. See, e.g., Williams v. State, 958 S.W.2d 186, 191 (Tex. Crim. App. 1997) (concluding brutal manner in which crime was committed supported jury's punishment verdict); Duffy, 567 S.W.2d at 208; see also Ingram, 2017 WL 1534046, at *3. Although appellant asserts that he received a longer sentence than he would have without admission of the videos, he offers no explanation or argument to support his assertion. We conclude that any error in the trial court's admission of the videos did not constitute reversible error. See Tex. R. App. P. 44.2(b). Appellant's second issue is overruled.
Conclusion
We affirm the trial court's judgment.