TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-99-00341-CR

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James Bernard Tenny, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF BLANCO COUNTY, 33RD JUDICIAL DISTRICT

NO. 633, HONORABLE CHARLES J. HEARN, JUDGE PRESIDING

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Appellant James Bernard Tenny was convicted by a jury of murder. See Tex. Penal Code Ann. § 19.02(b) (West 1994). The district court assessed punishment at sixty-five years confinement. In one issue on appeal, appellant contends the district court erred in allowing into evidence a shower scrubber that he alleges was wrongly seized by the police. ⁽¹⁾ We will affirm.

The admission or exclusion of evidence is within the trial court's discretion. See Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996); Porter v. State, 969 S.W.2d 60, 64 (Tex. App.--Austin 1998, pet. ref'd). We will not reverse a trial court's ruling absent a clear showing of an abuse of discretion, defined as a decision so clearly wrong as to fall outside the zone of reasonable disagreement. See Jones, 944 S.W.2d at 651; Fain v. State, 986 S.W.2d 666, 681 (Tex. App.--Austin 1998, pet. ref'd). Even if a trial court abuses its discretion in admitting evidence, we will not overturn that decision unless the defendant shows the error was harmful. See Tex. R. App. P. 44.2; Guidry v. State, 9 S.W.3d 133, 152 (Tex. Crim. App. 1999); Porter, 969 S.W.2d at 64; Fain, 986 S.W.2d at 681.

Appellant contends that the shower scrubber was seized from an area outside of the immediate crime scene and that the police did not have any implied consent to search the shower area. Therefore, he argues, the fruits of the illegitimate search, including the shower scrubber, should have been suppressed. However, even if we assume that the admission of such evidence was error, appellant has presented no explanation of how the admission of the scrubber harmed his rights. ⁽²⁾ Appellant has not demonstrated that the district court abused its discretion in admitting the shower scrubber into evidence and, more importantly, that the error, if any, was harmful.

We overrule appellant's sole issue on appeal and affirm the district court's judgment.

Mack Kidd, Justice

Before Chief Justice Aboussie, Justices Kidd and B. A. Smith

Affirmed

Filed: August 31, 2000

Do Not Publish

1. We have received a pro se brief raising five points of error contending appellant received ineffective assistance of counsel on appeal and at trial, the evidence is legally and factually insufficient to support the verdict, and the State presented improper jury argument. We have reviewed the record in light of appellant's claims and find his points of error to be without merit.

2. In fact, appellant testified that after he stabbed the victim during a fight, he took a short shower to wash off gasoline he alleged she had thrown on him.

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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

---

NO. 03-99-00341-CR

---

James Bernard Tenny, Appellant

v.

The State of Texas, Appellee

---

FROM THE DISTRICT COURT OF BLANCO COUNTY, 33RD JUDICIAL DISTRICT

NO. 633, HONORABLE CHARLES J. HEARN, JUDGE PRESIDING

---

Appellant James Bernard Tenny was convicted by a jury of murder. See Tex. Penal Code Ann. § 19.02(b) (West 1994). The district court assessed punishment at sixty-five years confinement. In one issue on appeal, appellant contends the district court erred in allowing into evidence a shower scrubber that he alleges was wrongly seized by the police. ⁽¹⁾ We will affirm.

The admission or exclusion of evidence is within the trial court's discretion. See Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996); Porter v. State, 969 S.W.2d 60, 64 (Tex. App.--Austin 1998, pet. ref'd). We will not reverse a trial court's ruling absent a clear showing of an abuse of discretion, defined as a decision so clearly wrong as to fall outside the zone of reasonable disagreement. See Jones, 944 S.W.2d at 651; Fain v. State, 986 S.W.2d 666, 681 (Tex. App.--Austin 1998, pet. ref'd). Even if a trial court abuses its discretion in admitting evidence, we will not overturn that decision unless the defendant shows the error was harmful. See Tex. R. App. P. 44.2; Guidry v. State, 9 S.W.3d 133, 152 (Tex. Crim. App. 1999); Porter, 969 S.W.2d at 64; Fain, 986 S.W.2d at 681.

Appellant contends that the shower scrubber was seized from an area outside of the immediate crime scene and that the police did not have any implied consent to search the shower area. Therefore, he argues, the fruits of the illegitimate search, including the shower scrubber, should have been suppressed. However, even if we assume that the admission of such evidence was error, appellant has presented no explanation of how the admission of the scrubber harmed his rights. ⁽²⁾ Appellant has not demonstrated that the district court abused its discretion in admitting the shower scrubber into evidence and, more importantly, that the error, if any, was harmful.

We overrule appellant's sole issue on appeal and affirm the district court's judgment.

Mack Kidd, Justice

Before Chief Justice Aboussie, Justices Kidd and B. A. Smith

Affirmed

Filed: August 31, 2000

Do Not Publish

1. We have received a pro se brief raising five points of error contending appellant received ineffective assistance of counsel on appeal and at trial, the evidence is legally and factually insufficient to support the verdict, and the State presented improper jury argument. We have reviewed the record in light of appellant's claims and find his points of error to be without merit.

2. In fact, appellant testified that after he stabbed the victim during a fight, he took a short shower to wash off gasoline he alleged she had thrown on him.