Date: 05-24-2022

Case Style:

Orlando Ortiz v. The State of Texas

Case Number: 04-18-00430-CR

Judge:

Rebeca C. Martinez

Sitting: Rebeca C. Martinez, Chief Justice Irene Rios, Justice Lori I. Valenzuela, Justice

Court:

Fourth Court of Appeals San Antonio, Texas

On appeal from The 187th Judicial District Court, Bexar County, Texas

Plaintiff's Attorney: Joe D. Gonzales
Jennifer Rossmeier Brown

Defendant's Attorney:

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Description:

San Antonio, Texas - Criminal Defense lawyer represented defendant with a felony assault involving family violence charge.

Ortiz was charged with two counts of sexual assault and one count of felony assault
involving family violence by occlusion against Odilia Gomez. On August 12, 2016, Ortiz sent a
text to Gomez stating there was damage to a motorcycle she and one of her sons owned. Gomez
went to Ortiz’s home where the motorcycle was located and where the alleged sexual assaults and
felony assault occurred.
At trial, the trial court admitted seven photos taken from the bodycam of one of the officers
who responded to the incident. These seven photos show some of Gomez’s injuries. The State
also moved to admit: (1) other photos of Gomez’s injuries that were taken with a camera while
Gomez received medical care in an ambulance (“State’s Exhibits 29–38”); (2) photos depicting
the exterior of the house, the garage where the motorcycle was located, and the crime scene
(“State’s Exhibits 39–47”); (3) and one photo depicting Gomez’s torn underwear at the crime
scene (“State’s Exhibit 48”).2
1 We only provide the background necessary to address Ortiz’s second issue. For a full recitation of the facts, see
Ortiz v. State, 04-18-00430-CR, 2019 WL 4280074, at *1–2 (Tex. App.—San Antonio, Sept. 11, 2019), rev’d,
623 S.W.3d 804, 810 (Tex. Crim. App. 2021). 2 Ortiz also complains about State’s Exhibit 28. However, State’s Exhibit 28 is a photo of Ortiz “when he was under
arrest and medics are tending to him.” In his brief, Ortiz only complains about the photos “depicting [the] alleged
victim in [an] ambulance.” Ortiz’s brief does not address the admissibility of a photo showing Ortiz when he was
under arrest and being treated by medics. Accordingly, Ortiz has improperly briefed this issue and waived any error
04-18-00430-CR
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Ortiz objected to the admission of State’s Exhibits 28–48, stating they are cumulative, not
relevant, and “improperly bolster the State’s case.” The trial court overruled Ortiz’s objections
and State’s Exhibits 28–48 were admitted into evidence.
After hearing all the evidence, the jury acquitted Ortiz of the sexual assault charges but
found him guilty of the felony offense of assault involving family violence by occlusion. Ortiz
was sentenced by the trial court as a habitual offender to forty-years’ imprisonment. The trial court
entered judgments of acquittal on the sexual assault charges and a judgment of conviction on the
felony charge of assault involving family violence by occlusion. Ortiz appeals the judgment of
conviction.
DISCUSSION
In his second issue, Ortiz argues State’s Exhibits 29–38 should have been excluded from
evidence because the photos were unfairly prejudicial and cumulative. Ortiz also argues State’s
Exhibits 39–47 were unfairly prejudicial and should have been excluded because the photos
“show[ed] the jury that Ortiz lived in a disheveled environment, which inferentially was unfit for
lawful activities.” Finally, Ortiz argues “State’s Exhibit 48—a photograph of the torn
underwear—is unquestionably cumulative of” the actual underwear admitted as State’s Exhibit 63.
The State argues Ortiz did not preserve error because his objection at trial does not comport
with his complaint on appeal. The State asserts that Ortiz now complains the photos were unfairly
prejudicial but only objected to the photos as cumulative and not relevant at trial. In the alternative,
the State argues the evidence was more probative than prejudicial and the trial court did not abuse
its discretion when it admitted State’s Exhibits 29–48.
regarding State’s Exhibit 28. See Crawford v. State, 595 S.W.3d 792, 801 (Tex. App.—San Antonio 2019, pet. ref’d)
(holding appellant waived error when his brief failed to identify the error or explain how he was harmed by the error);
see also TEX. R. APP. P. 38.1(i) (requiring an appellant’s brief to “contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record”).
04-18-00430-CR
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Preservation
The complaint made on appeal must comport with the complaint made in the trial court or
the error is waived. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); Pena v.
State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (“Whether a party’s particular complaint is
preserved depends on whether the complaint on appeal comports with the complaint made at
trial.”); Williams v. State, 294 S.W.3d 674, 685 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d)
(holding appellant’s unfairly prejudicial complaint on appeal was not preserved when he only
objected to the evidence as cumulative and not relevant at trial).
Here, no objection was raised that the photographs were unfairly prejudicial. Instead, Ortiz
objected to State’s Exhibits 29–38 as cumulative and State’s Exhibits 39–48 as not relevant.
Ortiz’s unfairly prejudicial complaint on appeal does not comport with his objections at trial.
Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009) (“A complaint will not be
preserved if the legal basis of the complaint raised on appeal varies from the complaint made at
trial.”). Therefore, we only consider Ortiz’s challenge that State’s Exhibits 29–38 and State’s
Exhibit 48 were needlessly cumulative.
Standard of Review
“The admissibility of a photograph is within the sound discretion of the trial judge.”
Shuffield v. State, 189 S.W.3d 782, 786 (Tex. Crim. App. 2006). “A trial court abuses its discretion
when its decision lies outside the zone of reasonable disagreement.” Casey v. State, 215 S.W.3d
870, 879 (Tex. Crim. App. 2007).
Applicable Law
Rule 403 of the Texas Rules of Evidence “allows for the exclusion of otherwise relevant
evidence when its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless
04-18-00430-CR
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presentation of cumulative evidence.” Shuffield, 189 S.W.3d at 786. “In determining whether
potentially prejudicial evidence was properly admitted, the appropriate inquiry is not whether the
evidence was more prejudicial than probative, but rather, whether the probative value was
substantially outweighed by the danger of unfair prejudice or needless presentation of cumulative
evidence.” Williams, 294 S.W.3d at 685.
“In the balancing analysis, however, a presumption favors probative value over unfair
prejudice or cumulative effect.” Id. When conducting a rule 403 balancing analysis, the trial court
should consider, but is not limited to, the following factors: (1) how probative is the evidence;
(2) the potential for the evidence to impress the jury in some irrational, but nevertheless indelible
way; (3) the time the proponent needs to develop the evidence; and (4) the proponents need for the
evidence. Shuffield, 189 S.W.3d at 787.
Analysis
Ortiz argues State’s Exhibits 29–38 were needlessly cumulative because they were photos
of the same injuries portrayed by seven bodycam photos already in evidence. While the bodycam
photos did show some of Gomez’s injuries, they did not show all her injuries. Further, eight of
the ten photos objected to are close-up images more clearly depicting the details and severity of
Gomez’s injuries and do not depict the ambulance. Because Ortiz was charged with felony assault,
it was essential to the State’s case to show the jury the details of Gomez’s injuries. Thus, State’s
Exhibits 29–38 were highly probative.
We recognize the fact that State’s Exhibits 29–38 were photos taken while Gomez was in
an ambulance. However, there was testimony that Gomez was transported to the hospital by
ambulance following the assault. See Ramirez v. State, 815 S.W.2d 636, 647 (Tex. Crim.
App. 1991) (“Generally, [reviewing courts have] held photographs admissible if verbal testimony
as to matters depicted in the photographs is also admissible.”). As such, the trial court could have
04-18-00430-CR
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reasonably concluded photos that may show Gomez in an ambulance would not impress the jury
in some irrational or indelible way. See Shuffield, 189 S.W.3d at 787. Further, the State did not
spend an inordinate amount of time developing the predicate to introduce the photos into evidence.
Id.
Here, the probative value of State’s Exhibits 29–38 was not substantially outweighed by
any cumulative effect. See Williams v. State, 301 S.W.3d 675, 692 (Tex. Crim. App. 2009)
(holding photographs had probative value when they depicted the victim’s injuries); see also Smith
v. State, No. AP-75,793, 2010 WL 3787576, at *18 (Tex. Crim. App. 2010) (mem. op., not
designated for publication) (holding the probative value of photos depicting a victim’s injuries was
not substantially outweighed by any cumulative effect when they aided the theories relevant to the
State’s case).
State’s Exhibit 48 was a photo of the torn underwear at the crime scene. The mere fact that
the State introduced the torn underwear as an exhibit does not render State’s Exhibit 48 cumulative.
Rather, State’s Exhibit 48 placed the torn underwear at the scene of the crime and tended to support
Gomez’s testimony regarding the assaultive nature of the crime and that the assault occurred while
she was visiting Ortiz’s home.
It was not outside the zone of reasonable disagreement for the trial court to conclude that
the probative value of the photographs was not substantially outweighed by any cumulative effect.
Williams, 301 S.W.3d at 692. The trial court’s decision to admit State’s Exhibits 29–38 and State’s
Exhibit 48 was not outside the zone of reasonable disagreement. Accordingly, we cannot say the
trial court clearly abused its discretion.
Ortiz’s second issue is overruled.

Outcome: The judgment of the trial court is affirmed.

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