Kesey Darnell FRANK, Appellant, v. The STATE of Texas, State, 183 S.W.3d 63

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. . 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).