OPINION Appellant, Manuel Guadalupe Garcia, appeals his murder conviction. The jury convicted Appellant and assessed his punishment at fifty years’ imprisonment in the Correctional Institutions Division of the Texas Department of Criminal Justice. The trial court sentenced Appellant accordingly. Appellant presents three issues for review and argues that (1) the trial court abused its discretion in allowing the State to reopen testimony after close, (2) the trial court improperly commented on the weight of the evidence introduced after the State reopened, and (3) the trial court abused its discretion in admitting autopsy photographs over Appellant’s objection under Rule 403 of the Texas Rules of Evidence on the grounds that the photographs were unfairly prejudicial. We affirm. Background Facts In April of 2016, Appellant and his roommate, DeWayne Teague Welch, traveled from Abilene to Fort Worth to purchase cocaine. Appellant and Welch returned to their residence in Abilene around 7:00 p.m. and then went their separate ways. Welch went out to a bar for the evening and, on his drive home after midnight, picked up his friend “Chuckie” (whose real name was Ryan Andrew Roberts) and Appellant. There was a rainstorm that evening, and Appellant asked Welch for a ride home to avoid the storm. Once the three men arrived at the house, Welch went to his room to change out of his rain-soaked clothing and urged Appellant to do the same. While Welch was changing, he heard a loud “pow” from the other end of the house. Welch testified that he peered out from his bedroom and saw Chuckie fall to the ground before Appellant began firing at Welch. Welch escaped the house and received medical care. Chuckie died at the scene as a result of a gunshot wound to the head. Appellant fled on foot and hitchhiked to Fort Worth; he was apprehended later in White Settlement. At trial, the State introduced crime scene photographs during its case-in-chief, but it withdrew State’s Exhibit No. 96 after Appellant objected. The withdrawn exhibit contained a set of “Gigapan” photographs that provided a 360-degree panoramic view of the crime scene. The State also introduced autopsy photographs of the victim, which the trial court admitted over Appellant’s Rule 403 objection. See TEX. R. EVID. 403. After both sides had closed, but before closing arguments, the State moved to reopen to reintroduce the Gigapan photographs. Appellant timely objected to reopening. Analysis Appellant combines the analysis for his first and second issues, but we address them each in turn. In his first issue, Appellant argues that the trial court abused its discretion when it allowed the State to reopen. Specifically, Appellant argues that the trial court erred because the State did not show that the additional evidence was material and because allowing the State to reopen was against the “due administration of justice” required by Article 36.02. See TEX. CODE CRIM. PROC. ANN. art. 36.02 (West 2007). We disagree with Appellant’s interpretation. Article 36.02 of the Texas Code of Criminal Procedure states that a “court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.” Id. The Court of Criminal Appeals interprets Article 36.02 as requiring a trial court to allow reopening if the additional evidence “would materially change the case in the proponent’s favor.” Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003). However, Article 36.02 controls when a court must reopen; it does not impose a limit on a trial court’s discretion to allow reopening. Appellant cites to Swanner, a case where the Fourteenth District Court of Appeals found that a trial court did not abuse its discretion under Article 36.02 by allowing the State to reopen before the arguments concluded. Swanner v. State, 499 S.W.3d 916, 920 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Appellant argues that the Swanner court failed to address the factors from Peek—the “materiality” of the evidence offered after closing and whether the evidence was against the “due administration of justice.” Although Appellant urges us to address these factors, we agree with the Swanner court that the factors in Peek only apply when a trial court refuses to reopen a case. Id. Because the trial court granted the State’s request to reopen, the reasoning in Peek and Article 36.02 are inapplicable to this case. Thus, we disagree with Appellant’s position that the trial court abused its discretion by granting the request to reopen the evidence without a showing of materiality. Accordingly, we overrule Appellant’s first issue. In Appellant’s second issue, he argues that the trial court improperly commented on the weight of the evidence introduced after it allowed the State to reopen. Our adversarial system requires a neutral arbiter between the litigants. Brown v. State, 122 S.W.3d 794, 797 (Tex. Crim. App. 2003). The law is well established that, to remain neutral, a trial judge should avoid making remarks that convey an opinion about the case. See McClory v. State, 510 S.W.2d 932, 934 (Tex. Crim. App. 1974). Article 38.05 of the Texas Code of Criminal Procedure provides: In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case. CRIM. PROC. art. 38.05 (West 1979). To constitute a reversible error, the “comment must be such that it is reasonably calculated to benefit the State or prejudice the defendant’s rights.” McClory, 510 S.W.2d at 934. However, Appellant does not argue that the trial court made any such comment. Instead, Appellant contends that allowing the State to reopen was the functional equivalent of a comment that “indicated to the jury” that the new evidence introduced was “reliable and true.” Appellant does not cite, and our review did not find, any case to support this proposition. Other courts of appeals have held the opposite—that a trial court’s decision on the admissibility of evidence is not a statement upon the weight of the evidence. See, e.g., Johnson v. State, 452 S.W.3d 398, 405 (Tex. App.—Amarillo 2014, pet. ref’d). We adopt this view today. After both sides rested and closed, the trial court held a conference outside the presence of the jury where the State discussed moving to reopen. Then, in the presence of the jury, the State moved to reopen. The defense immediately objected, and the trial court responded: “As this matter was taken up outside the presence of the jury earlier today, the Court will overrule the objection and grant the State’s request to reopen.” The trial court made no additional comments. We find that the trial court did not comment—impermissibly or otherwise—on the new testimony or the Gigapan photographs admitted after the State reopened. We overrule Appellant’s second issue. In Appellant’s third issue, he argues that the trial court abused its discretion by admitting seven autopsy photographs of the victim, State’s Exhibit Nos. 84 through 90, over Appellant’s Rule 403 objection. We review a trial court’s ruling on the admissibility of evidence for an abuse of discretion. Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). We will affirm the trial court’s ruling unless it lies outside the zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App. 2001). The contested exhibits depicted the victim’s face at the time the victim’s body was received by the medical examiner (SE 84), the victim’s torso and upper body as received by the medical examiner (SE 85), the exit wound from the bullet (SE 86), the entry wound on the victim’s face after his face was cleaned (SE 87, 90), and two of the victim’s identifying tattoos (SE 88, 89). Appellant argues that the images were “gruesome” and that they provided no probative value. The State argues that the photographs were not unnecessarily gruesome and that they were probative because they showed stippling on the victim’s skin, which established the shooter’s distance from the victim. To be admissible, a trial court must first determine that the evidence is relevant. Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App. 2016). Relevant evidence is any evidence that has a tendency to make a fact more or less probable than it would be without the evidence that is also of consequence in the action. TEX. R. EVID. 401. Rule 403 provides that relevant evidence may nonetheless be excluded “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. Using these factors, “Rule 403 requires exclusion of evidence only when there exists a clear disparity between the degree of prejudice of the offered evidence and its probative value.” Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001). When undertaking 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). When evaluating the admissibility of a photograph that is allegedly unfairly prejudicial, courts consider the number of photographs offered; the gruesomeness, detail, and size of the photograph; whether the image is in color or black and white; whether the body is naked or clothed; and whether the body has been altered since the crime. Reese v. State, 33 S.W.3d 238, 241 (Tex. Crim. App. 2000). “Autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself.” Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim App. 1998). When an element of a photograph is “genuinely helpful to the jury . . . , the photograph is inadmissible only if the emotional and prejudicial aspects substantially outweigh the helpful aspects.” Erazo v. State, 144 S.W.3d 487, 491–92 (Tex. Crim. App. 2004) (emphasis added). The first two Gigliobianco factors focus on the probative force of and the State’s need for the evidence. The photographs are black and white; they depict the victim’s body as it arrived at the medical examiner’s office with no mutilation from autopsy procedures; and the body is fully clothed. These factors weigh in favor of the probative force of the evidence. See Reese, 33 S.W.3d at 241. The trial court could have reasonably determined that the photographs had probative value because they accurately depicted the victim’s body and could help the jury understand the injuries sustained from a close-range gunshot. A trial court assesses the need for the evidence by asking the following questions: “Does the proponent have other available evidence to establish the fact of consequence that the [photographs are] relevant to show? . . . And is the fact of consequence related to an issue that is in dispute?” Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1991). The cause and manner of the victim’s death was not a contested issue at trial. Instead, the identity of the killer was at issue: Appellant and Welch both testified to conflicting versions of the events that took place that evening. Besides Welch’s testimony, the State also introduced testimony from Dr. Mark Andrew Krouse, the medical examiner, explaining his findings. The photographs depicted the manner of death and provided relevant evidence about the distance between the shooter and the victim—evidence that could have helped to establish a fact of consequence. The trial court could have reasonably determined that the photographs accompanying Dr. Krouse’s testimony would help the jury understand the victim’s injuries. See, e.g., Harris v. State, 661 S.W.2d 106, 107–08 (Tex. Crim. App. 1983) (holding that admitting photographs to help a jury understand a doctor’s description of injuries is not an abuse of discretion). As such, the first two Gigliobianco factors weigh in favor of admission. The remaining Gigliobianco factors focus on the potential negative effects of the proffered evidence. The autopsy photographs relate directly to the charged offense of murder, and although the photographs could have generated an emotional response, the trial court reasonably could have concluded that they did not have a tendency to suggest decision-making with an improper bias. See Gigliobianco, 210 S.W.3d at 641. Likewise, the photographs are directly related to the cause and manner of death, and the trial court could have reasonably concluded that they did not distract from the main issue of the case. See id. at 642. The photographs were admitted alongside testimony of Dr. Krouse, which provided the jury with a firm basis to evaluate the probative force of the photographs. The trial court could have reasonably concluded that the jury was not likely to give the photographs undue weight. See id. Finally, the presentation of the seven photographs did not consume an inordinate amount of time, and the photographs provided different perspectives from other admitted evidence and showed the extent of the victim’s injuries. See id. at 641–42. These factors weigh in favor of admission. Because we conclude that the Gigliobianco factors weigh in favor of admitting the evidence, we find no abuse of discretion. We overrule Appellant’s third issue. This Court’s Ruling We affirm the judgment of the trial court. KEITH STRETCHER JUSTICE November 5, 2020 Publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.[1] Willson, J., not participating.
