In The Court of Appeals Seventh District of Texas at Amarillo No. 07-23-00183-CR

ANTONIO JOINER, APPELLANT V. THE STATE OF TEXAS, APPELLEE On Appeal from the 403rd District Court Travis County, Texas Trial Court No. D-1-DC-20-301397, Honorable Brandy Mueller, Presiding February 8, 2024 MEMORANDUM OPINION Before QUINN, C.J. and PARKER and YARBROUGH, JJ.

Following a plea of not guilty, Appellant, Antonio Joiner, was convicted by a jury of murder,1 with an affirmative finding on use of a firearm, and punishment was assessed at twenty-five years’ confinement. By a sole issue, he maintains the trial court abused its

BACKGROUND

On the day of the incident, over a dozen people, including Appellant, were on site at an apartment complex having a barbeque. Appellant had recently had his backpack stolen and expressed to a witness “he was going to get payback.” Shortly thereafter, the deceased arrived at the apartment complex parking lot and he and Appellant, who knew each other, engaged in a conversation about the robbery. According to one of the witnesses, who had known Appellant for several years, she, Appellant, and the deceased stood behind a silver Honda during the conversation. The witness described the conversation as calm with the deceased sympathizing with Appellant over the robbery of his backpack. After the conversation, Appellant and the deceased shook hands. The deceased turned and walked away, and Appellant shot him in the back of the head. He was pronounced dead at the hospital.

Several witnesses called 911 and various officers and detectives were dispatched to the scene. Initially, a suspect matching the shooter’s description was detained but later released. Another suspect was later ruled out.

During the investigation, civilian witnesses present during the shooting were interviewed and they indicated Appellant was the shooter. The witness who had been

The defense was highly critical of the investigation. Although the murder weapon was not found, Appellant’s DNA was confirmed on a Squirt soda can, the purchase of which was confirmed by video from a nearby convenience store shortly before the shooting. He left the soda can on the back of the Honda and fled the scene after the shooting. His palm print was found on the back of the Honda where he had stood when he spoke with the deceased.

ANALYSIS

By his sole issue, Appellant contends the trial court abused its discretion in admitting State’s Exhibit 47, a photo of the deceased holding a child, as having no relevance and allowing the jury to convict on an improper basis.3 Assuming, arguendo, the trial court’s ruling was erroneous, we find the error was harmless.

STANDARD OF REVIEW—ADMISSION OF EVIDENCE

The admissibility of photographic evidence is within the sound discretion of the trial court. Young v. State, 283 S.W.3d 854, 874 (Tex. Crim. App. 2009). We review such a

The erroneous admission of evidence is non-constitutional error. Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018). Such error requires reversal only if it affected an appellant’s substantial rights. TEX. R. APP. P. 44.2(b). If an appellate court has a fair assurance from an examination of the record as a whole that the error did not influence the jury, or had but a slight effect, the conviction will not be overturned.

Gonzalez, 544 S.W.3d at 373 (citation omitted). In making this determination, an appellate court considers the following: (1) the character of the alleged error and how it might be considered in connection with other evidence; (2) the nature of the evidence supporting the verdict; (3) the existence and degree of additional evidence indicating guilt; and (4) whether the State emphasized the error. Motilla v. State, 78 S.W.3d 352, 356– (Tex. Crim. App. 2002).

Here, when the photo was introduced during the guilt/innocence phase, no mention was made of the child.4 During the State’s final closing argument, the prosecutor briefly mentioned the photograph and argued to the jury, “I think it’s important to see a picture

The defense’s trial strategy was to criticize the adequacy of the homicide investigation and its failure to rule out other suspects. However, two other suspects were ruled out. The defense attacked the credibility of the State’s three civilian witnesses. The defense had the opportunity to thoroughly cross-examine them and the jury, as the exclusive trier of fact, chose to believe their testimony that Appellant shot the deceased.

See TEX. CODE CRIM. PROC. ANN. art. 38.04 (providing the trier of fact weighs the evidence and credibility of witnesses). Appellant’s DNA and his palm print placed him at the scene speaking with Appellant just before the shooting.

We conclude the photo was not emphasized by the State and sufficient evidence was presented of Appellant’s guilt. Thus, we have a fair assurance from a review of the entire record that admission of the photo did not influence the jury or had but a slight effect which did not result in harm to Appellant. His sole issue is overruled.

CONCLUSION

The trial court’s judgment is affirmed.

Alex Yarbrough Justice Do not publish.