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Click here for the full text of this decision FACTS:The trial court convicted Tomas Raul Gallo in February 2004 of the capital murder of an individual under 6 years of age. Based on the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure Art. 37.071, ��2(b) and 2(e), the trial judge sentenced Gallo to death. An automatic appeal to the Court of Criminal Appeals followed. HOLDING:Affirmed. First, Gallo claimed that the trial court erred in admitting “numerous, repetitious, [and] gruesome” photographs of the dead three-year-old victim in violation of the Eighth and 14th Amendments to the U.S. Constitution. He asserted that the photographs were unfairly prejudicial, especially in light of the fact that “[t]here was ample other evidence to illustrate the facts in the instant case[,]” such as the medical examiner’s report. Under the circumstances of this case, however, the CCA stated that the trial court did not abuse its discretion in deciding that the probative value of the photographs substantially outweighed the danger of unfair prejudice. Second, Gallo argued that the trial court erroneously denied his motion for a continuance regarding the state’s “surprise witness,” Thomas Michael Gilstrap, who testified about statements Gallo made to him while they were inmates at the Harris County Jail. Gallo asserted that he was denied effective assistance of counsel and due process, because he was unable to properly investigate and cross-examine Gilstrap. The CCA noted, however, that Gallo’s attorney cross-examined Gilstrap about the details of his assault on his wife, his “26 years of heroin abuse,” the medications he was taking in the jail “psych ward,” his cocaine abuse, his 30-year criminal history and the fact that he waited so long to come forward with information pertaining to Gallo. Given his defense attorney’s extensive cross-examination of Gilstrap, the CCA found that Gallo failed to show what surprise remained or in what manner his attorney could have been more effective if he had been given more time to prepare for the witness. Third, Gallo asserted that the trial court erroneously excluded the expert testimony of Dr. George Holden regarding the issue of “filicide.” He alleged that the trial court’s ruling denied him a meaningful opportunity to present a complete defense. The CCA found that Gallo did not show by clear and convincing proof that Holden’s testimony was sufficiently relevant and reliable to assist the jury in accurately understanding other evidence or determining a fact in issue. Thus, the trial court did not abuse its discretion in ruling the evidence inadmissible. Fourth, Gallo contended that the state “purposefully attacked appellant over the shoulders of defense counsel” during its closing argument at the guilt phase of the trial. Assuming that a comment by the prosecutor was inappropriate, the CCA found that the trial court took sufficient curative action, because the trial judge instructed the jury to disregard the prosecutor’s comments. The CCA also found that the trial court did not err in refusing to include Gallo’s instructions on the issue of mental retardation. The trial court used instructions authorized by the Texas Legislature, the CCA found. The CCA then struck down all of Gallo’s remaining points of error. OPINION:Meyers, J., delivered the opinion of the Court, in which Keller, P.J., and Price, Johnson, Keasler, Hervey, Holcomb, and Cochran, JJ., joined. CONCURRENCE:Womack, J., concurred without a written opinion.

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