FLOYD EDWARD McKINNEY, Appellant v. THE STATE OF TEXAS, Appellee

Annotate this Case

AFFIRMED; Opinion Filed January 9, 2007.

In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-05-01584-CR
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FLOYD EDWARD McKINNEY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F05-01265-NL
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OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice Lang
        Floyd Edward McKinney   See Footnote 1 appeals the trial court's judgment convicting him of the capital murder of Toni Shankle and assessing his punishment at life imprisonment.
        McKinney raises eight issues on appeal: (1) the trial court denied him the right to a speedy trial; (2) the evidence is legally insufficient to prove he intended to commit robbery; (3) the evidence is factually insufficient to prove he intended to commit robbery; (4) the trial court erred when it denied his motion to suppress; (5) the trial court abused its discretion when it admitted photographs of Shankle's burned body; (6) the trial court erred when it denied his request to represent himself; (7) the trial court erred when it failed to instruct the jury regarding accomplice witness testimony; and (8) the trial court abused its discretion when, during the hearing on the motion to suppress, it sustained the State's objection, denying him the opportunity to make a record regarding the detectives' lack of jurisdiction.
        We conclude: (1) the trial court did not deny McKinney the right to a speedy trial; (2) the evidence is legally and factually sufficient to prove McKinney intended to commit robbery before or during the murder; (3) the trial court did not err when it denied McKinney's motion to suppress or abuse its discretion by denying McKinney the opportunity to make a record showing the Irving detectives were outside of their jurisdiction when they stopped McKinney in Dallas; (4) the trial court did not abuse its discretion when it admitted photographs of Shankle's burned body; and (5) the trial court did not err by denying McKinney's request to represent himself or failing to include in the jury charge an accomplice witness instruction. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND

        In November of 2001, Dana Hunter cosigned on a loan with her sister, Toni Shankle, for the purchase of a white Ford Focus. Shankle needed the Ford Focus to get to and from work and to take her baby back and forth from daycare. Shankle hung dice from the rear view mirror of the Ford Focus. In 2002, McKinney was dating Shankle. In the spring or summer of 2002, while they were dating, McKinney attended a barbeque with Shankle at the residence of Hunter. Hunter did not see McKinney again after the barbeque. The last time Hunter spoke with Shankle, the murder victim, was Thursday, September 26, 2002.
        Meanwhile, in October of 2001, McKinney began a relationship with Felicia Russell   See Footnote 2 and she eventually moved into McKinney's Audelia Street apartment in Dallas, Texas. While Russell and McKinney were living together, it was McKinney's habit to drive Russell to work around 7:00 a.m. and pick her up from work around 5:00 p.m. Then, he would take Russell's black Ford Mustang when he left the apartment around 9:00 p.m. and return to their apartment when it was time to take Russell to work the following morning. Russell knew that when McKinney went out at night he was “taking care of business,” which she understood to mean he was robbing people. At the end of September 2002, Russell was preparing to move to the Eagle Creek Apartments on Lina Street and McKinney was moving to the Lincoln Crossing Apartments on Preston Road.
        Near the end of September 2002, McKinney asked LaToya Garrett to make a threatening telephone call to Shankle to see if she was lying to him about “something.” McKinney wanted Garrett to pretend to be the girlfriend of the father of Shankle's baby and say, “You think his last girlfriend was crazy. You haven't seen crazy yet. You better not put him in child support.” McKinney gave Garrett a piece of paper with the names of these people so she would know who she was talking about. Garrett did not make the telephone call right away so McKinney kept inquiring if she had called. A couple of days after his request, Garrett called Shankle from a store telephone.
        On the night of Thursday, September 26, 2002, McKinney left the apartment he shared with Russell on Audelia Street at 9:00 p.m. McKinney had Russell's cellular telephone with him. Russell had a job interview the following morning so she telephoned McKinney around 4:15 a.m. on September 27, 2002, to be sure he would return to drive her to the interview. When he answered, McKinney told Russell he was working on getting her the money he had promised her. Russell needed $300 to move into the Lina Street apartment. On Friday, September 27, 2002, McKinney returned to their apartment at 7:00 a.m. He was supposed to drive Russell to downtown Dallas for a job interview, but instead, he told her that he needed to be dropped off at his Preston Road apartment and she would have to drive herself downtown. Russell drove him to the Preston Road apartment and left to go to her interview. When she stopped at a nearby traffic light, she heard a car horn and saw that McKinney had pulled beside her in a white Ford Focus with dice hanging from the rear view mirror. From the car, McKinney told Russell, “I promise, I'll make this up to you. I'm taking care of business, trying to get you your $300.00.” Later that evening McKinney told Russell the white Ford Focus belonged to a friend of his, a guy with whom he was “taking care of business.”
        On Saturday, September 28, 2002, Russell observed that McKinney's mood had changed, he seemed scared and upset. McKinney told Russell “something really terrible happened. I don't want to go into it. I don't want to talk about it.” Also, McKinney gave Russell $300. McKinney spent the day with Russell. Around 11:00 p.m., McKinney left the Audelia Street apartment in Russell's black Ford Mustang and did not return until the following morning. On Sunday, September 29, 2002, McKinney attended church with Russell, something he had not done in a while.
        Meanwhile, late in the evening of September 28, 2002, McKinney telephoned Garrett and told her he needed “a really serious favor.” McKinney arrived at Garrett's home in the very early morning on September 30, 2002, and told her that his girlfriend took money from him, she was out of town, he wanted Garrett to help him get the money back, and his girlfriend would not mind because the money was his. McKinney drove Garrett in Russell's car to his girlfriend's apartment in Irving. McKinney showed Garrett a white Ford Focus and gave her the car keys, a bank card, the PIN number, a mask, and gloves. McKinney told Garrett to drive to a bank and withdraw money from the account using the bank card while wearing the mask and gloves. Garrett did as he requested, but when she returned, he sent her back to the bank because he wanted “all of his money.” Garrett returned to the bank several times until McKinney directed her to go to a different bank. Garrett complied. When Garrett told McKinney she could not get any more money because the account was overdrawn he was upset, but did not send her back to the bank. During this time, Garrett observed that McKinney was rushed, hostile, and frustrated. Garrett parked the white Ford Focus where she had found it and got back into Russell's Ford Mustang with McKinney.
        Next, McKinney drove Garret to WalMart where he purchased lighter fluid. They returned to the Irving apartment and, while Garrett waited in the car, McKinney took the lighter fluid and disappeared for a while. Garrett fell asleep in the car and woke when McKinney returned. McKinney threw the lighter fluid in the back of the car and drove away without speaking. McKinney circled the apartment complex a few times and kept looking up. Then, he drove to another apartment complex where he disposed of “something,” but she did not know what it was. He disposed of the lighter fluid, keys, and some papers near a bush in a field. Also, he drove to a third apartment complex and disposed of “something else,” but again she did not know what it was.
        On Monday, September 30, 2002, at 2:08 a.m., the Irving Fire Department received an alarm call from 3503 West Northgate, apartment 114, Irving, Texas. The residents of apartment 114 told the firefighters they smelled smoke, but the smoke haze was slight, the apartment was cool, and the firefighters could not locate the origin of the smoke in apartment 114. One of the firefighters observed black soot around the top of the door to the adjacent apartment, apartment 116, which indicated heat and pressure inside the apartment. The door to apartment 116 was not locked. Wearing full protective gear, and using a thermal imaging camera, the firefighters crawled into the apartment staying close to the wall. The apartment contained thick black smoke from floor to ceiling, but the air in the apartment was cool. In the living room, the firefighters observed the sofa and love seat were burned. In the bedroom, they found a human body which was badly burned and had settled into the springs of the burned mattress.
        Also, on the morning of September 30, 2002, McKinney telephoned Russell at work and told her that he needed to speak with her at lunch. When Russell met with him, McKinney told her, “A friend of mine died this morning. I just looked at it on the news.” He continued by saying the friend was his former girlfriend, Shankle, and he thought she had committed suicide. McKinney also told Russell that Shankle paged him that weekend, said she had taken pills to kill herself, and he immediately went to Irving to take Shankle some milk. After Russell told McKinney she did not believe him, he began crying, assured her nothing happened between Shankle and him, and said, “The only problem is, I want to contact my parole officer to let them know that I took milk over there just in case they try to say I'm a suspect for this murder.” That night, Russell completed her move to the Lina Street apartment and McKinney told her he was going to stay with her because the police would probably look for him at the Preston Road apartment.
        On October 1, 2002, Detectives Hennig and Johnson found McKinney at the Preston Road apartment. The detectives wanted to speak with McKinney because he was Shankle's former boyfriend. The detectives stopped McKinney in the black Ford Mustang as he was leaving the Preston Road apartment. McKinney agreed to speak with the detectives and consented to a search of the black Ford Mustang. Because the car was full of clothes and other items, Detective Johnson asked if it would be all right to take the car to the Irving Police Department. McKinney rode with the detectives and the black Ford Mustang was towed to the Irving Police Department. During his interview, McKinney gave the detectives a statement and consented to a buccal swab. After the interview, McKinney left the Irving Police Department in the black Ford Mustang. Also, after McKinney was questioned by the detectives, he told Russell to lie to the police and tell them he was with her Wednesday, Thursday, Friday, Saturday, and Sunday. In addition, McKinney began telephoning Garrett several times a day asking where she had been and who she had spoken to, making unannounced visits to her home, and threatened to kill an array of unspecified people McKinney knew.
        During the course of the investigation, the arson investigator determined the fire had been deliberately set between twelve to twenty-four hours before Shankle's body was found. Also, Detective Hennig learned that property had been taken from Shankle, including her car and computer. Shankle's car was found at an apartment complex near her apartment and the interior of the car had been set on fire. The last time Shankle was seen alive was on September 26, 2002. However, $300 was removed from her account on the night of September 28, 2002. Several additional attempts to remove money from her account with her bank card occurred on the night of September 28, 2002 and in the early morning of September 29, 2002. The medical examiner concluded the cause of Shankle's death was strangulation, which could have occurred on the evening of September 26, 2002. Also, Shankle's drug screen was negative and a vaginal swab of Shankle's body revealed McKinney's sperm, which, based on the absence of acid phosphatase, could have been left from twenty-four hours to four days earlier.
        In early November 2002, when McKinney learned Russell had spoken with a former boyfriend on the telephone, he broke her telephone and threatened to burn her body in the apartment and kill her. Later, in December of 2002, McKinney told Russell he was hiding in the bushes and saw the father of Shankle's baby kill Shankle. Afterward, he went into the apartment and saw Shankle's naked body on the bed with her hands tied behind her and she had been burned. McKinney told Russell he left the apartment and closed the door behind him, but did not call the police.
        In early November 2002, Yvette Hines met McKinney in an on-line dating chat room. They began a relationship and McKinney would visit her every day from 8:30 a.m. to 4:00 p.m. While they were dating, McKinney told Hines the following in several conversations: (1) his former girlfriend had been killed; (2) the girlfriend of the father of Shankle's baby had been calling Shankle threatening her; (3) he thought the father of Shankle's baby had killed her; (4) he saw Shankle before her death; (5) Shankle tried to commit suicide; (6) he had a set of keys to Shankle's house and car; (7) he got rid of Shankle's keys; (8) he recently had sex with Shankle; (9) he went into Shankle's bedroom and found her laying on the bed naked and with her hands tied behind her back; (10) he went to Shankle's house the day after he found her body, a Saturday morning, and her keys and computer were gone; (11) a fire was started after he found Shankle's body; and (12) the door to Shankle's apartment was unlocked. In early January 2003, Hines contacted the Irving police Department because she believed McKinney had murdered his former girlfriend.
        On January 13, 2003, McKinney was arrested. After Russell learned of McKinney's arrest, she contacted Detective Hennig to give him her statement. Also, Garrett led the police to the discarded lighter fluid.
        McKinney was indicted for capital murder. During the trial, Lewis Gipson, McKinney's former cell mate, testified McKinney admitted he had sex with Shankle, strangled her, left her naked and limp body laying on the bed, took Shankle's ATM card and directed a friend to deplete her account, and set the body on fire with lighter fluid. The jury found McKinney guilty of capital murder and the trial court sentenced him to imprisonment for life.

II. SPEEDY TRIAL

        In his first issue, McKinney argues the trial court denied him the right to a speedy trial. He argues there was a thirty-two month delay, the State's only justification for the delay was to secure the attendance of a witness, he repeatedly requested a speedy trial, and, during the delay, he suffered anxiety because he was incarcerated, a witness died, and the State discovered a new witness who testified McKinney killed Shankle. The State concedes that the thirty-two-month delay is sufficient to trigger a speedy trial analysis. The State responds that defense counsel signed several “pass slips” agreeing to continuances for investigation and discovery, defendant's pro se letters and motions to the trial court asserting his right to a speedy trial were made while he was represented by counsel, and the witness that died was Philip Jones, McKinney's counsel in an unrelated aggravated robbery case.
A. Standard of Review

        When reviewing a trial court's decision on a speedy trial claim, an appellate court applies a bifurcated standard of review. State v. Munoz, , 821 (Tex. Crim. App. 1999); State v. Jones, 168 S.W.3d 339, 345 (Tex. App.-Dallas 2005, pet. ref'd). When conducting a speedy trial analysis, an appellate court reviews legal issues de novo, but gives deference to a trial court's resolution of factual issues. Kelly v. State, , 726 (Tex. Crim. App. 2005); Munoz, 991 S.W.2d at 821; Jones, 168 S.W.3d at 345. An appellate court's review of a speedy trial claim must be done in light of the arguments, information, and evidence that was available to the trial court at the time it ruled. Shaw v. State, , 889 (Tex. Crim. App. 2003); Dragoo v. State, , 313 (Tex. Crim. App. 2003); Jones, 168 S.W.3d at 345. Under this standard of review, deference must be given not only to a trial court's resolution of disputed facts, but also to the drawing of reasonable inferences from the facts. Kelly, 163 S.W.3d at 726. Deference must be given to a trial court's findings, even when those findings do not turn on the assessment of credibility and demeanor. Kelly, 163 S.W.3d at 726.
        An appellate court must uphold the trial court's ruling if it is supported by the record and is correct under the applicable law. Shaw, 117 S.W.3d at 889; Munoz, 991 S.W.2d at 821; Jones, 168 S.W.3d at 345. However, if a violation of the defendant's right to a speedy trial is established, the only possible remedy is dismissal of the prosecution. Strunk v. United States, , 440 (1973); Dragoo, 96 S.W.3d at 313; Jones, 168 S.W.3d at 346.
B. Applicable Law

        The Sixth Amendment to the United States Constitution and article I, section 10 of the Texas Constitution provide that the accused shall enjoy the right to a speedy trial. U.S. Const. amend. VI; Tex. Const. art. I, § 10. In determining whether a defendant has been denied his right to a speedy trial, a court must use a balancing test in which the conduct of both the State and the defendant are weighed. Barker v. Wingo, , 530 (1972); Shaw, 117 S.W.3d at 888; Dragoo, 96 S.W.3d at 313; Jones, 168 S.W.3d at 346. The factors to be weighed in the balance are commonly referred to as the Barker factors. These factors include, but are not necessarily limited to: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his speedy trial right; and (4) the prejudice to the defendant resulting from the delay. Doggett v. United States, , 651 (1992); Barker, 407 U.S. at 530-32; Shaw, 117 S.W.3d at 889; Dragoo, 96 S.W.3d at 313; Jones, 168 S.W.3d at 346. No single Barker factor is necessary or sufficient to establish a violation of the right to a speedy trial. Barker, 407 U.S. at 533; Shaw, 117 S.W.3d at 889; Dragoo, 96 S.W.3d at 313. The Barker factors are “related” and “must be considered together with such other circumstances as may be relevant.” Barker, 407 U.S. at 533.
        The first Barker factor, the length of delay, is a double inquiry. Doggett, 505 U.S. at 651. First, to trigger a speedy trial analysis, the defendant must allege the interval between accusation and trial has crossed the threshold dividing ordinary from presumptively prejudicial delay. Doggett, 505 U.S. at 651; Barker, 407 U.S. at 530; Shaw, 117 S.W.3d at 889; Dragoo, S.W.3d at 313; Jones, 168 S.W.3d at 347. The length of delay is measured from the time the defendant was arrested or formally charged. Shaw, 117 S.W.3d at 889; Dragoo, 96 S.W.3d at 313; Jones, 168 S.W.3d at 346-47. Generally, a “delay approaching one year” is sufficient to trigger a speedy trial inquiry. Doggett, 505 U.S. at 652 n.1; Shaw, 117 S.W.3d at 889; Dragoo, 96 S.W.3d at 314; Jones, 168 S.W.3d at 347. Second, once the defendant has triggered a speedy trial analysis, the court must consider the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. Doggett, 505 U.S. at 652; Barker, 407 U.S. at 533-34; Shaw, 117 S.W.3d at 889; Dragoo, 96 S.W.3d at 314; Jones, 168 S.W.3d at 347. The presumption that the pretrial delay has prejudiced the defendant intensifies over time. Doggett, 505 U.S. at 652; Jones, 168 S.W.3d at 347.
        The second Barker factor is the State's reason for the delay. Once a defendant has shown a presumptively prejudicial delay, the State has the burden of justifying the delay. Emery v. State, , 708 (Tex. Crim. App. 1994). Different weights must be assigned to the different reasons the State offers to justify the delay. See Barker, 407 U.S. at 531; Shaw, 117 S.W.3d at 889; Dragoo, 96 S.W.3d at 314; Jones, 168 S.W.3d at 347. Some reasons are valid and serve to justify the delay, while other reasons are not valid and do not serve to justify the delay. Barker, 407 U.S. at 531; Shaw, 117 S.W.3d at 889; Dragoo, 96 S.W.3d at 314; Jones, 168 S.W.3d at 347. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the State. Barker, 407 U.S. at 531. An overcrowded court docket is not a valid reason for delay and should be weighted against the State, although not heavily. Barker, 407 U.S. at 531; Shaw, 117 S.W.3d at 890. However, a missing witness is a valid reason for delay and serves to justify appropriate delay. Barker, 407 U.S. at 531.
        The third Barker factor is the defendant's assertion of his speedy trial right. The more serious the deprivation of a defendant's right to a speedy trial, the more likely he is to complain. Barker, 407 U.S. at 531; Shaw, 117 S.W.3d at 890. A defendant's assertion of his speedy trial right, is entitled to strong evidentiary weight when a court determines whether he is being deprived of that right. Barker, 407 U.S. at 531-32; Jones, 168 S.W.3d at 348. A defendant's motion to dismiss due to the denial of a speedy trial, rather than a motion affirmatively requesting a speedy trial, weakens the defendant's speedy trial claim because it shows a desire to have no trial instead of a speedy trial. Jones, 168 S.W.3d at 348 (citing Zamorano v. State, , 651 n.40 (Tex. Crim. App. 2002)).
        The fourth Barker factor is the prejudice to the defendant caused by the delay. This prejudice is assessed in light of the interests that the right to a speedy trial was designed to protect. Barker, 407 U.S. at 532; Shaw, 117 S.W.3d at 890; Dragoo, 96 S.W.3d at 315; Jones, 168 S.W.3d at 349. These interests are: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. Barker, 407 U.S. at 532; Doggett, 505 U.S. at 654; Shaw, 117 S.W.3d at 890; Dragoo, 96 S.W.3d at 315; Jones, 168 S.W.3d at 349. Of these interests, the third is the most important because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. Barker, 407 U.S. at 532; Doggett, 505 U.S. at 654; Shaw, 117 S.W.3d at 890; Dragoo, 96 S.W.3d at 315; Jones, 168 S.W.3d at 349. The defendant has the burden to make “some showing” of prejudice. Jones, 168 S.W.3d at 349. Once the defendant makes some showing of prejudice, the burden shifts to the State to show that no prejudice resulted. Jones, 168 S.W.3d at 349. Affirmative proof of prejudice is not essential to every speedy trial claim because excessive delay presumptively compromises the reliability of a trial in ways neither party can prove or identify. Doggett, 505 U.S. at 655; Shaw, 117 S.W.3d at 890; Dragoo, 96 S.W.3d at 315; Jones, 168 S.W.3d at 349. If witnesses die or disappear during a delay, the prejudice is obvious. Barker, 407 U.S. at 532. However, the presumption of prejudice is diminished by the defendant's acquiescence in the delay. Barker, 407 U.S. at 534-36; Doggett, 505 U.S. at 658; Shaw, 117 S.W.3d at 890; Dragoo, 96 S.W.3d at 315; Jones, 168 S.W.3d at 349.
C. Application of the Law to the Facts

        On February 24, 2003, McKinney was indicted for the capital murder of Shankle in cause no. F03-34144-JW. On March 7, 2003, McKinney was indicted for the unrelated aggravated robbery of Paul Joseph in cause no. F03-71256-JW. On September 24, 2003, McKinney was re- indicted for the capital murder of Shankle, enhanced by two prior felony convictions for burglary of a motor vehicle and burglary of a habitation, in cause no. F03-01491-L. On September 1, 2005, McKinney was again re-indicted for the capital murder of Shankle, enhanced by two prior felony convictions, in cause no. F-05-01265-NL.
        On February 4, 2003, Phillip H. Jones filed a notice of appearance in the aggravated robbery case, cause no. F03-71256-JW. However, before trial, Mr. Jones died and Wes Reed was appointed to represent McKinney in that case. Also, Mr. Reed was appointed by the trial court to represent McKinney for all three of the capital murder indictments, cause nos. F03-34144-JW, F03-01491-L, and F-05-01265-NL.
        The cases against McKinney were set for trial numerous times. The docket sheet for the capital murder indictment, cause no. F03-34144-JW, shows the case was set for trial on December 15, 2003, March 1, 2004, July 26, 2004, August 16, 2004, January 31, 2005, June 27, 2005, October 24, 2005, and October 31, 2005. The docket sheet for the first capital murder re-indictment, cause no. F03-01491-L, shows the case was set for trial on December 15, 2003, January 9, 2004, March 1, 2004, August 16, 2004, January 31, 2005, June 27, 2005, October 25, 2005, and October 31, 2005. The docket sheet for the second capital murder re-indictment, cause no. F05-01265-NL, shows the case was set for trial on September 6, 2005 and October 28, 2005.         The record shows McKinney's counsel agreed to or requested several continues.   See Footnote 3 Also, although McKinney was represented by counsel, he sent the trial court numerous pro se letters complaining that his right to a speedy trial had been violated and filed pro se motions for dismissal on speedy trial grounds.   See Footnote 4 On August 10, 2005, during a hearing on McKinney's motion to dismiss his counsel, McKinney agreed to a further delay in his trial date. The following occurred:

McKINNEY:

My complaint was that-we didn't even find out until just now that the trial was set for September 12th.

COURT:

That's not true, sir. That case has been-well, what difference does it make? You're getting extra time.

McKINNEY:

August 15th. I'm just trying to show the negligence. If it was set for August 15th and, to my understanding, we didn't find out until just now-

COURT:

Sir, that was my doing. I'm saying, as far as-maybe, I'm negligent. I'm the one that runs the docket, and I'm the one that bumped you to the 12th.

McKINNEY:

I have no complaint with it being bumped to the 12th. . . .

Further, on September 12, 2005, at the conclusion of the hearing on Mckinney's motion to suppress, his counsel brought to the trial court's attention McKinney's amended pro se motion for dismissal on speedy trial grounds. The trial court denied the amended pro se motion for speedy trial. Then, McKinney asked the trial court if it was possible for him to request a continuance since his pretrial motions had been denied. The trial court stated it had just granted the State's motion for a continuance, but, if he needed more time, it would consider such a motion, however, McKinney should consult with his attorney.
        Cause no. F05-01265-NL (second capital murder re-indictment) was tried from October 31, 2005 through November 7, 2005. Cause nos. F03-71256-JW (aggravated robbery), F03-34144-JW (capital murder), and F03-01491-L (first capital murder re-indictment) were dismissed on November 10, 2006.
        First, we examine the first Barker factor, the length of the delay. McKinney was arrested on January 13, 2003. He was indicted for the capital murder of Shankle on February 24, 2003 and re-indicted on September 24, 2003 and again on September 1, 2005. A jury was selected on October 31, 2005, and McKinney was tried from November 1, 2005 through November 7, 2005. There was approximately a thirty-three month delay from the time McKinney was arrested until the time he was tried.   See Footnote 5 See Shaw, 117 S.W.3d at 889 (generally, one year delay sufficient to trigger speedy trial analysis). The State concedes this delay was sufficient to trigger a speedy trial inquiry. The presumption that the pretrial delay prejudiced McKinney intensifies with time. The pretrial delay in McKinney's case stretches twenty-one months beyond the minimum time delay necessary to trigger a speedy trial inquiry, which is generally twelve months. See id. (38-month delay weighed heavily in favor of concluding speedy trial right violated). Consequently, this Barker factor weighs heavily in favor of concluding McKinney's right to a speedy trial was violated. See id.
        Second, we review the second Barker factor, the reasons for the delay. Although, during the hearing on McKinney's motion to suppress, McKinney's counsel brought to the trial court's attention McKinney's amended pro se motion to dismiss claiming he was denied his right to a speedy trial, the State did not respond by articulating an explanation for the delay during the hearing. However, the record shows that subpoenas were issued by the State before several of the many trial dates. Also, McKinney's counsel signed fourteen pass slips agreeing to continuances and moved for a continuance two times. Further, during a hearing on August 10, 2005, the trial court stated it had to “bump” McKinney's trial because there was another defendant waiting for trial who had been in jail longer than McKinney. Although a crowded docket is not a valid reason for delay, it is not weighed heavily against the State. See id. at 890. Consequently, the second Barker factor weighs in favor of concluding McKiney's right to a speedy trial was violated, but not heavily.
        Third, we address the third Barker factor, McKinney's assertion of his right to a speedy trial. McKinney first asserted his right to a speedy trial in a pro se, ex parte letter sent to the trial court, eight months after he was arrested. Although McKinney asserted his right to a speedy trial several times, his assertions were made in pro se, ex parte letters and pro se motions to dismiss, while he was represented by counsel. McKinney was not entitled to hybrid representation. See Meyer v. State, 27 S.W.3d 644, 648 (Tex. App.-Waco 2000, pet. ref'd) (defendant not entitled to hybrid representation), cert. denied 544 U.S. 923 (2005). Also, on May 25, 2005, McKinney filed a pro se motion to dismiss cause nos. F03-34144-JW (capital murder) and F03-01491-L (first capital murder re-indictment). Although there is an order dated “1 day J 2005" in the clerk's record that appears to deny McKinney's motion to dismiss shortly after he filed his first pro se motion to dismiss on May 25, 2005, it references cause no. F03-71256-JW (aggravated robbery). Further, during a hearing on McKinney's pro se motion to dismiss counsel, McKinney stated he had “no complaint” with his case being delayed from August 15, 2005 to September 12, 2005. However, after agreeing to the delay, on September 8, 2005, he filed an amended pro se motion to dismiss the capital murder indictments in cause nos. F03-34144-JW (capital murder), F03-01491-L (first capital murder re-indictment), and F05-01265-NL (second capital murder re-indictment), claiming he had been denied the right to a speedy trial. Although McKinney was not entitled to hybrid representation, the trial court allowed him to have hybrid representation for that motion when it denied McKinney's amended pro se motion to dismiss on September 12, 2005 after McKinney's counsel brought the pro se motion to the trial court's attention. Id. (by considering and ruling on pro se motion while defendant represented by counsel, trial court allows hybrid representation for that motion).
        McKinney's acquiescence to the continuance of his case from August 15, 2005 to September 12, 2005, followed by his September 8, 2005 amended pro se motion to dismiss weaken his speedy trial claim because it shows he desired to have no trial instead of a speedy trial. See Jones, 168 S.W.3d at 348. Further, McKinney's pro se request for a continuance immediately following the trial court's denial of his amended pro se motion for a speedy trial, demonstrates his acquiescence in the delay. Consequently, the third Barker factor weighs heavily against the conclusion that McKinney's right to a speedy trial was violated.
        Finally, we analyze the fourth Barker factor, the prejudice to McKinney resulting from the delay in light of the three interests protected by the speedy trial right. The first interest protected by the speedy trial right is the prevention of oppressive pretrial incarceration. McKinney was incarcerated during the entire thirty-three month delay. Under the case law, the thirty-three month period McKinney spent in jail awaiting trial constitutes oppressive pretrial incarceration. See Munoz, 991 S.W.2d at 828 (17-month delay); Meyer, 27 S.W.3d at 650 (23-month delay).
        The second interest protected by the speedy trial right is the minimization of McKinney's anxiety and concern. McKinney asserted in his amended pro se motion to dismiss that he:

Unnecessarily suffered severe mental anguish and anxiety because of the lost [sic] of life and liberty by being held for an unreasonable and excessively prolonged period of time awaiting trial thus, constituting cruel and unusual punishment violating the 8th Amendment of the United States Constitution and Article 1, Section 10 of the Texas Constitution and Article 1.09 of the T.C.C.P.

Neither McKinney nor his counsel argued or offered evidence that the delay caused him any unusual anxiety or concern beyond the level normally associated with being charged with capital murder. See Shaw, 117 S.W.3d at 890. Further, McKinney was a convicted felon on parole at the time of his arrest.
        The third and most important interest protected by the speedy trial right is the limitation of the possibility the defense will be impaired. McKinney asserted in his September 8, 2005 amended pro se motion to dismiss that he:

Lost a key witness in his defense, Mr. Phillip Howard Jones who had been an attorney for [McKinney] and had information that was imperative in proving [his] case. Phillip Howard Jones has died since the commencement of this cause, yet, Mr. Jones would have been available had the state [sic] been prepared for trial in a reasonable time guaranteed to [McKinney] by right of the Speedy Trial Provisions of the Texas Statute.

However, before McKinney's contention will amount to a showing of some prejudice, he must not only show the witness is unavailable, but that the witness's testimony might be material and relevant to the case. See Meyers, 27 S.W.3d at 650. Mr. Jones represented McKinney in cause no. F03- 71256-JW, the unrelated aggravated robbery. McKinney's amended pro se motion fails to address the materiality and relevance of his former, deceased attorney's testimony. Also, on appeal, McKinney claims he was prejudiced because the State discovered a new witness, McKinney's former cell mate, who testified McKinney admitted to killing Shankle. McKinney fails to explain how the State's ability to locate a new witness and prepare its case made him unable to adequately prepare his defense. Consequently, the fourth Barker factor weighs heavily against the conclusion that McKinney's right to a speedy trial was violated.
        Now that we have addressed the four Barker factors, we must balance them. Weighing in favor of concluding McKinney's right to a speedy trial was violated are the excessive delay and the lack of a valid reason by the State for most of the delay. Weighing against concluding McKinney's right to a speedy trial was violated are McKinney's acquiescence to the delay and his failure to demonstrate prejudice. We conclude the four Barker factors, when balanced together, weigh against the conclusion that McKinney's right to a speedy trial was violated. See Shaw, 117 S.W.3d at 891.
        McKinney's first issue is decided against him.
III. LEGAL AND FACTUAL SUFFICIENCY

        In his second and third issues, McKinney argues the evidence is legally and factually insufficient to prove he intended to commit robbery before, during, or after the murder. The State responds that the evidence showed McKinney had previously stolen money from Shankle, was known to steal from his multiple girlfriends, had promised and delivered to Russell $300, and directed Garrett to use Shankle's car and bank cards to deplete Shankle's accounts.
A. Standards of Review

        Differences exist between a legal sufficiency and factual sufficiency review of the evidence. Johnson v. State, , 7 (Tex. Crim. App. 2000); Lee v. State, 186 S.W.3d 649, 654 (Tex. App.-Dallas 2006, pet. ref'd). Also, it is beyond dispute, that determining the legal and factual sufficiency of the evidence requires the implementation of separate and distinct standards of review. Johnson, 23 S.W.3d at 7; Lee, 186 S.W.3d at 654.

1. Legal Sufficiency

        The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Lane v. State, , 191-92 (Tex. Crim. App. 2004); Young v. State, , 753 (Tex. Crim. App. 2000); Lee, 186 S.W.3d at 654. A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. King v. State, , 562 (Tex. Crim. App. 2000); Lee, 186 S.W.3d at 654. The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, , 647 (Tex. Crim. App. 1996); Lee, 186 S.W.3d at 654. In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, , 917 (Tex. Crim. App. 2000); Lee, 186 S.W.3d at 654. Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, , 41-42 (1988); Johnson v. State, , 411 (Tex. Crim. App. 1998); Lee, 186 S.W.3d at 654.
2. Factual Sufficiency

        A review of the evidence for factual sufficiency is guided by three principles. Cain v. State, , 407-08 (Tex. Crim. App. 1997); Lee, 186 S.W.3d at 655. First, deference is given to the findings of the fact finder; the evidence will not be reweighed. Cain, 958 S.W.2d at 407; Lee, 186 S.W.3d at 655. Second, a finding of factual insufficiency must be supported by a detailed explanation because the fact finder can accept witness testimony or reject it. Cain, 958 S.W.2d at 407; Lee, 186 S.W.3d at 655. However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, , 287 (Tex. Crim. App. 2001); Lee, 186 S.W.3d at 655. Third, all of the evidence is viewed in a neutral light. See Cain, 958 S.W.2d at 408; Vasquez v. State, , 236 (Tex. Crim. App. 2002); Johnson, 23 S.W.3d at 11; Clewis v. State, , 129 (Tex. Crim. App. 1996); Lee, 186 S.W.3d at 655.
        The evidence weighed by the fact finder tending to prove the existence of the fact in dispute is compared to the evidence tending to disprove that fact. Santellan v. State, , 164 (Tex. Crim. App. 1997); Lee, 186 S.W.3d at 655. This standard is applied to both circumstantial and direct evidence. King, 29 S.W.3d at 565; Kutzner v. State, , 184 (Tex. Crim. App. 1999); Lee, 186 S.W.3d at 655; Smith v. State, 895 S.W.2d 449, 452 (Tex. App.-Dallas 1995, pet. ref'd). Reversal for factual insufficiency occurs only when there is some objective basis in the record that shows the great weight and preponderance of the evidence contradict the jury's verdict. See Watson v. State, , 417 (Tex. Crim. App. 2006); see also Vasquez, 67 S.W.3d at 236; Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129.
B. Applicable Law

        A person commits the offense of capital murder if he intentionally commits murder in the course of committing or attempting to commit robbery. See Tex. Pen. Code Ann. § 19.03(a)(2) (Vernon Supp. 2006). A person commits robbery if, in the course of committing theft, he intentionally, knowingly, or recklessly causes bodily injury to another. See id. § 29.02(a)(1) (Vernon 2003). A person commits theft if he unlawfully appropriates property with the intent to deprive the owner of that property. See id. § 31.03(a) (Vernon Supp. 2006).
        The State must prove a nexus between the murder and the theft, i.e., the murder occurred in order to facilitate the taking of the property. Ibanez v. State, , 807 (Tex. Crim. App. 1986). The nexus requirement for a capital murder in the course of a robbery is the same as the nexus requirement in a robbery between the assault and the theft. Ibanez, 749 S.W.2d at 807; see Cooper v. State, , 223 (Tex. Crim. App. 2002). For the purposes of capital murder, “in the course of committing” a robbery is defined as conduct occurring in an attempt to commit, during the commission of, or in the immediate flight after the attempt or commission of the murder. McGee v. State, , 234 (Tex. Crim. App. 1989). In order for a murder to qualify as a capital murder, the State must prove the defendant intended to rob the victim either before or during the murder. See Alvarado v. State, , 207 (Tex. Crim. App. 1995); Ibanez, 749 S.W.2d at 807. A jury may infer the requisite intent from the acts, words and conduct of the defendant. See Alvarado, 912 S.W.2d at 207. Also, the intent to rob may be inferred from circumstantial evidence. Meeks v. State, 135 S.W.3d 104, 112 (Tex. App.-Texarkana 2004, pet. ref'd). Proof of a robbery committed as an afterthought and unrelated to the murder will not provide sufficient evidence of capital murder. Alvarado, 912 S.W.2d at 207. However, in a capital murder case, if the State proves the robbery occurred immediately after the murder, the evidence is sufficient to prove the nexus between the murder and the robbery. McGee, 774 S.W.2d at 234; see Cooper, 67 S.W.3d at 223; see also Meeks, 135 S.W.3d at 112. Even in the absence of additional evidence of a nexus, the robbery of the victim immediately after the murder is sufficient proof of the nexus. See Cooper, 67 S.W.3d at 224.
C. Application of the Law to the Facts

        Viewing the evidence in the light most favorable to the verdict, there was evidence that McKinney intended to commit robbery before or during the murder because there was proof of a robbery immediately after the murder. See McGee, 774 S.W.2d at 234. The record shows Shankle's car and computer were taken from her apartment. Also, on the last day Shankle was seen alive, McKinney told Russell he would get her the money as promised. At 4:00 a.m. the next day, when Russell called McKinney on the cellular telephone, he told her he was working on getting her the money. Later that morning, Russell saw McKinney driving Shankle's car. Two days later, McKinney gave Russell $300. Further, McKinney gave Garrett the keys to Shankle's car and her bank card and told Garrett to withdraw all of the money from the account while wearing a mask and gloves. Finally, Gipson testified McKinney admitted he killed Shankle and took her ATM card and had a friend deplete the account.         Viewing the evidence in a neutral light, there is ample evidence from which a fact finder could rationally conclude beyond a reasonable doubt that McKinney intended to commit robbery before or during the murder. It is clear that McKinney's challenge to the factual sufficiency of the evidence is actually an attack on the credibility and weight assigned to the evidence by the jury. The great weight and preponderance of the evidence do not contradict the jury's verdict.
        After reviewing all of the evidence under the appropriate standards of review, we conclude the evidence is legally and factually sufficient to support that McKinney intended to commit robbery before or during the murder.
        McKinney's second and third issues on appeal are decided against him.
IV. POLICE JURISDICTION

        In his fourth and eighth issues, McKinney argues the trial court erred when it denied his motion to suppress and abused its discretion when, during the hearing on the motion to suppress, it sustained the State's objection, denying him the opportunity make a record regarding the detectives' lack of jurisdiction.
A. Motion to Suppress

        In his fourth issue, McKinney argues his written statement and the DNA evidence were the result of an illegal detention because, when the detectives from the Irving Police Department detained him, they were in Dallas, outside of their jurisdiction. The State responds that the detectives were authorized to detain McKinney even though they were outside of their jurisdiction.
1. Standard of Review

        A bifurcated standard of review is applied to a trial court's ruling on a motion to suppress evidence. See Randolph v. State, 152 S.W.3d 764, 769 (Tex. App.-Dallas 2004, no pet.). This standard of review gives almost total deference to a trial court's determination of historical facts and applies a de novo review of a trial court's application of the law to those facts. See Guzman v. State, , 89 (Tex. Crim. App. 1997); Smith v. State, 176 S.W.3d 907, 913 (Tex. App.-Dallas 2005, pet. ref'd); Randolph, 152 S.W.3d at 769. A trial court is the sole trier of fact, the judge of witness credibility, and the determiner of the weight given to witness testimony. State v. Ross, , 855 (Tex. Crim. App. 2000); Randolph, 152 S.W.3d at 769.
2. Applicable Law

        A trial court may grant the parties a pretrial hearing on a motion to suppress evidence. Tex. Code Crim. Proc. Ann. art. 28.01, § 1(6) (Vernon 2006). When a criminal case is set for a pretrial hearing, any preliminary matters not raised or filed seven days before the hearing will not be allowed to be raised or filed except by permission of the trial court for good cause shown. Id. art. 28.01, § 2. However, when the trial court is presented with an opportunity to act on new legal arguments, the trial court's ruling on the motion to suppress necessarily constitutes a ruling on the new legal arguments, unless there is some indication the trial court refused to rule on the new legal arguments. See Taylor v. State, , 738 (Tex. Crim. App. 1993) (per curiam). In other words, the record must show the trial court did not review the new legal arguments or reflect the trial court either treated the new legal arguments as untimely or the State raised some objection to the trial court's consideration of the new legal arguments. See id. at 738 n.1.
3. Application of the Law to the Facts

        On July 30, 2004, McKinney filed a motion to suppress his confession. In the motion he argued his confession was coerced, he was not immediately taken before a magistrate and advised of his constitutional and statutory rights, he was not given a warning with respect to his constitutional and statutory rights, his confession was given in the absence of an intelligent and understanding waiver of the right to counsel, he was denied access to counsel, and his confession was tainted by his illegal detention. Also, on July 30, 2004, McKinney filed a separate motion to suppress the evidence seized without a search warrant. He argued the evidence was obtained without a legal search warrant, consent, probable cause to support an arrest, sufficient articulable circumstances to support an investigative stop, or counsel.
        The trial court held a hearing on these motions on January 31, 2005, six months after McKinney filed his motion to suppress. The hearing was continued until September 12, 2005, eight months after the hearing commenced or fourteen months after the motion to suppress was filed. During McKinney's cross-examination of Detective Johnson at the hearing on September 12, 2005, McKinney raised the new legal argument that the evidence should be suppressed because he was arrested by the Irving detectives in Dallas, outside of their jurisdiction. The State objected to relevance during this questioning and the trial court sustained the objection. This ruling constitutes a refusal by the trial court to consider McKinney's new legal argument. See Tex. Code Crim. Proc. Ann. art. 28.01, § 1(6); Taylor, 863 S.W.2d at, 738 n.1. We conclude the trial court did not err when it denied McKinney's motion to suppress because the Irving detectives were outside of their jurisdiction. See Tex. Code Crim. Proc. Ann. art. 28.01, § 1(6); Taylor, 863 S.W.2d at, 738 n.1.
        McKinney's fourth issue is decided against him. Accordingly, we turn to McKinney's eighth issue.
B. Denied Opportunity to Make Record of Officers' Lack of Jurisdiction

        In his eighth issue, McKinney argues the trial court erred because, when it sustained the State's objection, it prevented him from making a record regarding the Irving detectives' jurisdiction. McKinney claims his counsel sought to elicit testimony from Detective Johnson to establish he was detained outside not only the City of Irving, but also Dallas County where the City of Irving is located. He contends that when the trial court sustained the State's objection, it denied him the opportunity make a record showing the detectives were outside their jurisdiction because they were in Collin County. Also, he claims that review of a Dallas map clearly shows the address where the detectives stopped him is actually located in the City of Dallas, Collin County. The State responds that McKinney did not request to make a record regarding the detectives' jurisdiction after the trial court sustained the State's objection.

A. Preservation of Error

        The general requirement for preservation of error is set forth in Texas Rule of Appellate Procedure 33.1(a). See Tex. R. App. P. 33.1(a). To preserve a complaint for appellate review, the record must show the complaint was made to the trial court by a timely request, objection, or motion. See Tex. R. App. P. 33.1(a)(1). That request must state the grounds for the ruling sought by appellant with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. See Tex. R. App. P. 33.1(a)(1)(A). To complain on appeal about a matter that would not otherwise appear in the record, a party must file a formal bill of exception. See Tex. R. App. P. 33.2. Also, to preserve an issue for appellate review, an appellant must obtain a ruling from the trial court on his request or, if the trial court refused to rule on the request, object to the trial court's refusal to rule. See Tex. R. App. P. 33.1(a)(2).
C. Application of the Law to the Facts

        During the hearing on McKinney's motion to suppress, he attempted to raise the new legal argument that the evidence should be suppressed because the detectives were outside of their jurisdiction. To support this argument, he attempted to elicit testimony from Detective Johnson regarding the Irving detectives' jurisdiction. The following occurred:

DEFENSE COUNSEL:

Okay. And, at any rate, it was outside your jurisdiction outside of Irving-City of Irving; is that correct?

DETECTIVE JOHNSON:

It was outside the City of Irving. Yes, sir.

* * * * * * *

DEFENSE COUNSEL:

As far as the investigative detention on your part, wouldn't your jurisdiction lie only in Irving?

DETECTIVE JOHNSON:

No, sir.

DEFENSE COUNSEL:

So you can take people into investigative detention outside of Irving?

DETECTIVE JOHNSON:

Yes, sir.

DEFENSE COUNSEL:

And is that because you are accompanied by [the] Dallas Police Department?

STATE:

I'm going to object to the relevance of this, Judge.

TRIAL COURT:

Sustained.

DEFENSE COUNSEL:

Your Honor, in this regards, I'd like to address the detention, the court and various case law. It basically goes to the investigative detention outside of the jurisdiction. It goes to the fact of what, if anything, was obtained from that.



        Of course, it's our contention that Mr. McKinney was under arrest. All the facts presented to the Court would indicate that he was under arrest, and we would say that the detention-investigative detention; that these officers were outside their jurisdiction; that they did not have authorization to take Mr. McKinney in their possession. He wants to say it's not in his custody, but he was in their possession and was transported by him to the Irving Police Department for investigation.



        We feel that, based under the case law, that they were outside their jurisdiction in regards to making this type of detention, for purposes of investigation.

TRIAL COURT:

Same ruling.

After the trial court sustained the State's objection, McKinney's counsel proceeded with unrelated questioning and did not raise the issue of the detectives' jurisdiction again during the hearing on the motion to suppress.   See Footnote 6
        McKinney does not argue on appeal the trial court erred when it sustained the State's objection. Rather, he claims the trial court abused its discretion when it sustained the State's objection because that ruling denied him the opportunity to make a record demonstrating the detectives were outside of Dallas County. There is nothing in the record showing McKinney requested the opportunity to make a record regarding the detectives' lack of jurisdiction because they were outside of Dallas County or that the trial court denied McKinney the opportunity to make a record. The testimony during the hearing only placed the trial court on notice that the detectives were outside the City of Irving. McKinney did not request or file a formal bill of exception. Further, the explanation of McKinney's counsel regarding what he sought to prove does not mention the evidence would show the detectives' were outside of Dallas County. Accordingly, we conclude the trial court did not abuse its discretion because McKinney did not request the opportunity make a record regarding the officers' lack of jurisdiction because they were in Collin County.
        McKinney's eighth issue is decided against him.
V. PHOTOGRAPHS

        In his fifth issue, McKinney argues the trial court abused its discretion when it admitted photographs of Shankle's burned body. McKinney argues the probative value of State's exhibits 26-35, which are photographs of Shankles body at the crime scene, and 89-94, which are autopsy photographs, is outweighed by their prejudicial effect. The State responds that the crime scene photographs show the condition of the body as it was discovered. Also, the State responds that the autopsy photographs depict how the medical examiner determined the cause of Shankle's death was by strangulation.
A. Standard of Review

        The decision to admit or exclude photographic evidence is within the sound discretion of the trial court and is reviewed for an abuse of discretion. See, e.g., Shuffield v. State, , 786 (Tex. Crim. App. 2006), cert. denied 127 S. Ct. 664 (2006); Prible v. State, , 734 (Tex. Crim. App. 2005), cert. denied 126 S. Ct. 481 (2005). The trial court will be reversed only when its decision on the admissibility of the photographic evidence lies outside the zone of reasonable disagreement. See Montgomery v. State, , 391 (Tex. Crim. App. 1990) (op. on reh'g).
B. Applicable Law

        Texas Rule of Evidence 403 governs the admissibility of photographic evidence alleged to be unduly prejudicial. Emery v. State, , 710 (Tex. Crim. App. 1994). Rule 403 provides:

Although relevant, evidence may be excluded if 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 presentation of cumulative evidence.

Tex. R. Evid. 403.

        Rule of Evidence 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Eg. Shuffield, 189 S.W.3d at 787. To determine if the photographic evidence was more prejudicial than probative, a proper analysis by the trial court or the appellate court should include, but is not limited to, the four Montgomery factors: (1) the probative value of the photographic evidence; (2) the potential of the photographs to impress the jury in some irrational, yet indelible way; (3) the time needed to develop the photographic evidence; and (4) the proponent's need for the photographic evidence. See Erazo v. State, , 489-496 (Tex. Crim. App. 2004) (citing Montgomery, (op. on reh'g)); see also Shuffield, 189 S.W.3d at 787.
        The third Montgomery factor requires review of the potential of the photographs to impress the jury in some irrational, yet indelible way. Relevant factors in determining whether the probative value of a photograph is outweighed by its inflammatory nature include the following: (1) the number of exhibits offered; (2) their gruesomeness; (3) their detail; (4) their size; (5) whether they are black and white or color; (6) whether they are close-up shots; (7) whether the body is naked or clothed; (8) the availability of other means of proof; (9) whether the body was altered by the autopsy; and (10) other circumstances unique to the case. See Shuffield, 189 S.W.3d at 787; Prible, 175 S.W.3d at 734; Erazo, 144 S.W.3d at 489.
        A photograph is not rendered inadmissible merely because it is gruesome or might tend to arouse the passions of the jury, unless it is offered solely for the purpose of inflaming the minds of the jury. Potter v. State, 74 S.W.3d 105, 112 (Tex. App.-Waco 2002, no pet.); Ward v. State, 787 S.W.2d 116, 120 (Tex. App.-Corpus Christi 1990, pet. ref'd). When the power of the visible evidence emanates from nothing more than what the defendant has done, the trial court has not abused its discretion merely because it admits the gruesome photographs. Sonnier v. State, , 519 (Tex. Crim. App. 1995). In addition, the fact that the subject of the photograph is gory and gruesome does not make the photograph more prejudicial than probative when the crime scene was gory and gruesome. Shavers v. State, 881 S.W.2d 67, 77 (Tex. App.-Dallas 1994, no pet.). Generally, photographs are admissible where verbal testimony about the same matters is admissible. Jones v. State, , 652 (Tex. Crim. App. 1996); Emery, 881 S.W.2d at 710; see also Ward, 787 S.W.2d at 120 (if verbal description of body and scene would be admissible, photograph depicting same is admissible). A photograph is admissible where it serves to support testimony regarding the injuries sustained by the victim. Hayes v. State, , 816 (Tex. Crim. App. 2002). Further, the use of visual evidence to accompany oral testimony is not cumulative of the testimony, but instead offers the fact finder a point of comparison against which to test a witness's credibility and the validity of his conclusions. See Chamberlain v. State, , 237 (Tex. Crim. App. 1999).
        Autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself. Hayes, 85 S.W.3d at 816. Changes rendered by the autopsy process are of minor significance if the disturbing nature of the photograph is primarily due to the injuries caused by the defendant. Id. Further, when the photographs depict internal organs that have been removed to portray the extent of the injury to the organs themselves, the photographs are not considered to be depictions of mutilation of the victim by autopsy. Salazar v. State, , 151-52 (Tex. Crim. App. 2001). Photographs of internal organs that have been removed from the victim's body during the autopsy can be highly relevant to explain the manner of death. Ripkowski v. State, , 392-93 (Tex. Crim. App. 2001). The main concern is that the jury might attribute certain injuries caused by the autopsy to the defendant, which would unfairly prejudice the defendant's case. See Rojas v. State, , 249 (Tex. Crim. App. 1998). As long as the autopsy photographs aid the jury in understanding the injury and do not emphasize the mutilation caused by the autopsy, the photographs are admissible. Todd v. State, 911 S.W.2d 807, 819 (Tex. App.-El Paso 1995, no pet.).
C. Application of the Law to the Facts

        With respect to State's exhibits 26-35, McKinney maintains the photographs are gruesome because they portray Shankle's naked, severely burned, partially decomposed body settled into the springs of a burned mattress. Also, he argues these color photographs are 8 ½ inches by 10 inches in size and are repetitious because they provide a 360 degree view of the bed with alternating close- ups of Shankle's body.
        While the crime scene photographs are gruesome, in the sense they are disturbing to view, they merely depict the gruesome reality of the injuries sustained by Shankle. See Sonnier, 913 S.W.2d at 519. The photographs are 8½ inches by 10 inches, an average size. The trial court admitted ten photographs of the crime scene depicting different angles of the room and body, which is not sufficiently inflammatory to outweigh the probative value of the photographs. See generally Shuffield, 189 S.W.3d at 787 (nine crime scene photographs depicting different angles in room and closer view of body and wounds). Although the photographs were printed in color, the mere fact that a photograph is printed in color is not sufficient to make it unnecessarily gruesome or cause its probative value to be substantially outweighed by its inflammatory nature. See generally Chamberlain, 998 S.W.2d at 237; Rojas, 986 S.W.2d at 249; Jones, 944 S.W.2d at 651; Sonnier, 913 S.W.2d at 519. Further, the fact that Shankle is unclothed in the crime scene photographs, which depicts the manner in which her body was found, is not sufficiently inflammatory to outweigh the probative value of the photographs. See generally Morales, 897 S.W.2d at 428 (pre-autopsy photograph of unclothed victim admissible).         With respect to State's exhibits 89-94, McKinney argues these color autopsy photographs are 8 ½ inches by 10 inches in size and are gruesome because they depict Shankle's body after it was removed from the mattress springs, a process that disemboweled the body. However, State's exhibits 89 and 90 are not close-up shots of Shankle's body. Rather, they depict the victim's upper body from her head to her knees. See generally Hayes, 85 S.W.3d at 816 (photograph of victim's head and torso admissible). State's exhibit 91 depicts the injury to Shankle's pelvic area. See generally Rojas, 986 S.W.2d at 249 (photograph displaying trauma to pelvic area admissible). State's exhibits 92-94 portray Shankle's larynx after it had been removed from her throat. See Ripkowski, 61 S.W.3d at 392-93 (color photographs of victim's larynx depicting bruising not visible externally admissible because relevant to manner of death). These photographs depicted a fracture to the larnyx cartilage with a hemorrhage around the site that was not visible externally. As a result, the photographs were highly relevant to the manner of death, in this case, manual strangulation of the victim.
        We conclude the trial court did not abuse its discretion when it admitted photographs of Shankle's burned body. McKinney's fifth issue is decided against him.
VI. SELF-REPRESENTATION

        In his sixth issue, McKinney argues the trial court erred when it denied his request to represent himself. He argues that two and a half months before trial, he sent the trial court a pro se letter that clearly showed he wanted to waive his right to counsel and exercise his right to represent himself. The State responds that McKinney did not clearly and unequivocally tell the trial court he wanted to represent himself.

A. Applicable Law

        The Sixth and Fourteenth Amendments to the United States Constitution guarantee that a person brought to trial in any state or federal court has the right to self-representation. See Faretta v. California, , 819-20 (1975); Moore v. State, , 396 (Tex. Crim. App. 1999). This right is also protected by the Texas Constitution and the Texas Code of Criminal Procedure. Tex. Const. art. 1, § 10; Tex. Code Crim. Proc. Ann. art. 1.051(f). The right to self-representation does not attach, however, until it has been clearly and unequivocally asserted. See Ex parte Winton, , 135 (Tex. Crim. App. 1992); Funderberg v. State, , 642 (Tex. Crim. App. 1986).
C. Application of the Law to the Facts

        McKinney wrote several pro se, ex parte letters to the trial court complaining about his counsel. Also, on March 3, 2005, McKinney sent Judge Alvarez a pro se, ex parte letter stating, “I am interested in waiving my right to counsel and representing myself in the following causes: F03- 344144-L [capital murder], F03-71256-L [aggravated robbery], and F04-01491-L [first capital murder re-indictment].” After McKinney sent this letter, he appeared with his counsel at several hearings and did not advise the trial court he wanted to represent himself. Although McKinney filed a motion to dismiss his counsel, at the hearing on that motion, he indicated he wanted different counsel. McKinney's one letter stating he was interested in representing himself cannot be taken alone or out of context. See DeGroot v. State, 24 S.W.3d 456, 458 (Tex. App.-Corpus Christi 2000, no pet.). That context is McKinney's continued dissatisfaction with his attorney and his desire to obtain a new attorney. See id. Accordingly, we conclude McKinney did not clearly and unequivocally assert his right to self-representation.
        McKinney's sixth issue is decided against him.
VII. ACCOMPLICE WITNESS JURY INSTRUCTION

        In his seventh issue, McKinney argues the trial court erred when it failed to instruct the jury regarding accomplice witness testimony. He argues Garrett could have been charged with the theft because she assisted him in stealing Shankle's money. The State responds that McKinney failed to request an accomplice witness instruction or to object to the jury charge.
A. Standard of Review

        An appellate court reviews a trial court's submission of jury instructions under an abuse of discretion standard. Slott v. State, 148 S.W.3d 624, 632 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd) (citing Wesbrook v. State, , 122 (Tex. Crim. App. 2000)).
B. Applicable Law

        An accomplice is a person who participates in an offense, before, during, or after the commission of a crime and acts with the required culpable mental state. Cocke v. State, , 748 (Tex. Crim. App. 2006); Paredes v. State, , 536 (Tex. Crim. App. 2004); Herron v. State, , 631 (Tex. Crim. App. 2002). To participate in an offense, the witness must affirmatively act to promote the commission of the offense. Cocke, 201 S.W.3d at 748; Paredes, 129 S.W.3d at 536.
        A witness is clearly an accomplice if he, like the defendant, could be prosecuted for the offense or a lesser-included offense. Cocke, 201 S.W.3d at 748. Theft may be a lesser-included offense of capital murder. See Holiday v. State, 14 S.W.3d 784, 788 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd). To be charged with a lesser-included offense, the witness must have had the conscious desire to aid or attempt to aid in that offense. See Meeks, 135 S.W.3d at 111. However, a witness is not an accomplice where there is no evidence that the witness was involved in the planning of or assisted in the preparation for the offense. See Paredes, 129 S.W.3d at 537-38 (witnesses who assisted in disposal of murder victims' bodies not accomplices).
        If the evidence creates a fact issue or is conflicting regarding whether a witness was an accomplice, the witness may be an accomplice as a matter of fact and the issue should be submitted to the jury. See Cocke, 201 S.W.3d at 747-48. However, if the evidence clearly shows a witness is an accomplice, then the witness is an accomplice as a matter of law, and the trial court has the duty to instruct the jury of this fact and of the necessity of corroborative evidence. See id. If a prosecution witness is an accomplice as a matter of law, the trial court errs if it fails to instruct the jury accordingly. Herron, 86 S.W.3d at 631. The trial court is under no duty to instruct the jury unless there exists no doubt or the evidence clearly shows that a witness is an accomplice as a matter of law. Paredes, 129 S.W.3d at 536. Further, the trial court is not required to give the jury an accomplice witness instruction when the evidence is clear the witness is neither an accomplice as a matter of law nor as a matter of fact. See Cocke, 201 S.W.3d at 748.
C. Application of the Law to the Facts

        The record shows McKinney telephoned Garrett and told her he needed “a really serious favor.” McKinney arrived at Garrett's home in the very early morning on September 30, 2002, and told her that his girlfriend took money from him, she was out of town, he wanted Garrett to help him get the money back, and his girlfriend would not mind because the money was his. McKinney directed Garret to wear a mask and gloves, drive a white Ford Focus to a bank, and withdraw money from an account using a bank card and PIN number he gave her.
        Garret was not indicted for any offense arising out of the criminal episode and the evidence does not conclusively establish she was an accomplice. We conclude Garret was not an accomplice as a matter of law. Also, the evidence did not raise a fact issue as to whether Garrett was an accomplice because Garrett lacked the required culpable mental state. Under the law of parties, when a murder is committed by another person during a robbery, a defendant must have intended to aid in the capital murder, not just robbery, in order to be criminally liable for capital murder. See Meeks, 135 S.W.3d at 110. To be charged with a lesser-included offense, such as theft, Garrett had to have the conscious desire to aid or attempt to aid in the offense. See id. at 111. Therefore, in order to be an accomplice, Garrett had to have the conscious desire to aid in the murder of Shankle or the lesser-included offense of theft. See id. There is no direct evidence Garrett had this required mens rea. While Garrett participated in the removal of money from Shankle's accounts, there is no evidence she participated in taking the bank card from Shankle or even knew of Shankle's murder. Accordingly, we conclude the trial court did not err when it failed to instruct the jury regarding accomplice witness testimony.
        McKinney's seventh issue is decided against him.
VIII. CONCLUSION

        The trial court did not deny McKinney the right to a speedy trial. The evidence is legally and factually sufficient to prove McKinney intended to commit robbery before or during the murder. When the trial court denied McKinney's motion to suppress, it did not err by denying the motion on the basis that the detectives stopped McKinney in Dallas, outside of their jurisdiction. Also, it was not an abuse of the trial court's discretion to sustain the State's objection thereby denying McKinney the opportunity to make a record showing the detective were outside of their jurisdiction because McKinney's counsel did not request to make a record. The trial court did not abuse its discretion when it admitted photographs of Shankle's burned body. McKinney did not clearly and unequivocally assert his right to self-representation so the trial court did not deny him the right to self-representation. Finally, the trial court did not err when it failed to instruct the jury regarding accomplice witness testimony.
        The trial court's judgment is affirmed.

                                                          DOUGLAS S. LANG
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
051584f.u05

Footnote 1 The record also refers to McKinney as “Floyd Edward McKinney, Jr.,” “Rayquan Chris Anthony Shuave,” “Rayquan Abeem Shuave,” and “Quan.”
Footnote 2 The record also refers to Russell as “Lisa.”
Footnote 3 McKinney's counsel agreed to, by signing pass slips, or moved for continuances as follows:

(1)

On March 18, 2003, cause no. F03-34144-JW (capital murder) was passed by agreement until March 25, 2003, when the parties would make an announcement for trial;

(2)

On March 25, 2003, cause nos. F03-71256-JW (aggravated robbery) and F03-34144-JW (capital murder) were passed by agreement until April 2, 2003, when the parties would make an announcement;

(3)

On April 3, 2003, cause nos. F03-71256-JW (aggravated robbery) and F03-34144-JW (capital murder) were passed by agreement until May 1, 2003 because an attorney was unavailable for medical reasons;

(4)

On May 1, 2003, cause no. F03-34144-JW (capital murder) was passed by agreement until August 25, 2003, the date the case was set for a jury trial, and a notation was made on the pass slip that a pretrial hearing would be held on August 8, 2003;

(5)

On August 25, 2003, cause no. F03-71256-JW (aggravated robbery) was passed for further investigation;

(6)

On September 9, 2003, cause nos. F03-71256-JW (aggravated robbery) and F03-34144-JW (capital murder) were passed by agreement until December 15, 2003, when the case was set for a jury trial;

(7)

On December 19, 2003, cause no. F03-01491-L (first capital murder re-indictment) was passed by agreement until January 9, 2004, when the case was set for announcement and the parties were scheduled to pick a trial date;

(8)

On January 9, 2004, cause no. F03-34144-JW (capital murder) was passed by agreement until March 1, 2004, when the case was set for announcement;

(9)

On January 12, 2004, cause nos. F03-71256-JW (aggravated robbery), F03-34144-JW (capital murder), and F03- 01491-L (first capital murder re-indictment) were passed by agreement until April 5, 2004, when the cases were set for a trial by jury;

(10)

On March 26, 2004, cause no. F03-34144-JW (capital murder) was passed by agreement until July 26, 2004, when the case was set for a jury trial;

(11)

On July 27, 2004, cause no. F03-01491-L (first capital murder re-indictment) was passed by agreement until August 16, 2004, when the case was set for a jury trial, and a pretrial hearing was set for July 30, 2004;

(12)

On August 11, 2004, the cases were passed by agreement until October 25, 2004, however, no cause number is specified on the pass slip;

(13)

On October 26, 2004, cause nos. F03-71256-JW (aggravated robbery), F03-34144-JW (capital murder), and F03- 01491-L (first capital murder re-indictment) were passed by agreement until January 31, 2005, when the cases were set for trial;

(14)

On March 2, 2005, cause nos. F03-71256-JW (aggravated robbery), F03-34144-JW (capital murder), and F03- 01491-L (first capital murder re-indictment) were passed by agreement until June 27, 2005, when the matters were set for trial;

(15)

On June 24, 2005, the docket sheet shows the State announced ready, but McKinney's counsel moved for a continuance in cause no. F03-34144-JW (capital murder), and the trial court continued the case until October 24, 2005; and

(16)

On October 24, 2005, the docket sheet shows cause nos. F03-71256-JW (aggravated robbery), F03-34144-JW (capital murder), and F03-01491-L (first capital murder re-indictment) were continued until October 31, 2005.

Footnote 4 On October 15, 2003, McKinney sent a pro se letter, referencing cause nos. F03-71256-JW (aggravated robbery), F03-34144-JW (capital murder), and F03-01491-L (first capital murder re-indictment), to Judge Johnson stating he had asked his counsel to file a speedy trial motion and his counsel had not complied, and requesting the trial court to ensure he received a speedy trial. On December 14, 2003, McKinney sent a pro se letter, referencing cause nos. F03-71256-JW (aggravated robbery), F03-34144-JW (capital murder), and F03-01491-L (first capital murder re-indictment), to Judge Johnson complaining that he requested his attorney to file a speedy trial motion and his counsel refused to do so. On January 15, 2004, McKinney sent a pro se letter with the salutation “Dear Sirs” complaining that he had asked his counsel to file a speedy trial motion and his counsel refused to do so. On February 25, 2004, McKinney sent a pro se letter to Judge Alvarez complaining, in part, that he had requested his counsel to file a speedy trial motion and his counsel refused to do so. On January 18, 2005, McKinney sent a pro se letter, referencing cause nos. F03-71256-JW (aggravated robbery), F03-34144-JW (capital murder), and F03-01491-L (first capital murder re-indictment), addressed to Judge Alvarez moving for the trial court to dismiss the charges against him on speedy trial grounds, which the trial court filed on January 21, 2005. On March 2, 2005, McKinney filed an inmate grievance complaint asserting his right to a speedy trial and seeking release from the Dallas County Jail. On March 17, 2005, McKinney sent a letter to his attorney requesting that he file a motion for a speedy trial, which the trial court filed at McKinney's request on March 23, 2004. On May 25, 2005, McKinney filed a pro se motion to dismiss cause nos. F03-34144-JW (capital murder) and F03-01491-L (first capital murder re-indictment) because he claimed he was denied his constitutional right to a speedy trial. The trial court signed an order denying McKinney's motion to dismiss, referencing cause no. F03-71256-JW (aggravated robbery), on the “1 day of J 2005.” On September 8, 2005, McKinney filed an amended pro se motion to dismiss causes nos. F03-34144-JW (capital murder), F03-01491-L (first capital murder re-indictment), and F05-01265-NL (second capital murder re-indictment) claiming he was denied the right to a speedy trial and, by order dated September 12, 2005, the trial court denied the motion.
Footnote 5 McKinney argues it was a thirty-two month delay, however, our calculations show that from the time of his arrest on January 13, 2003 to the time of his trial, October 31, 2005, it was approximately thirty-three months.
Footnote 6 During the trial, McKinney's counsel cross-examined Detective Johnson regarding the detectives' jurisdiction, without objection, as follows:

DEFENSE COUNSEL:

You-all are peace officers for the City of Irving, and you're outside basically your jurisdiction in that location; is that correct?

DETECTIVE JOHNSON:

We're outside the City of Irving, not outside the State of Texas. No, sir.

DEFENSE COUNSEL:

Being a certified peace officer of Texas, anywhere in Texas-

DETECTIVE JOHNSON:

That's correct.

DEFENSE COUNSEL:

So did you have police officers now with Dallas that were there with you; is that correct?

DETECTIVE JOHNSON:

Later. Yes, sir. Uh-huh.

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