Seth Adam Blake v. the State of Texas

Opinion filed August 1, 2024

In The

Eleventh Court of Appeals
__________

No. 11-23-00165-CR
__________

SETH ADAM BLAKE, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 42nd District Court
Taylor County, Texas
Trial Court Cause No. 29733-A

MEMORANDUM OPINION
Appellant, Seth Adam Blake, was indicted for three first-degree felony
offenses: (1) the murder of Adrian Vizzera, 1 (2) the aggravated robbery of Caleb
Martinez, and (3) the aggravated robbery of Andrea Ortiz. See TEX. PENAL CODE

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In its brief, the State notes that Adrian’s last name is misspelled as “Vizzera” throughout the record
and that the correct spelling of his name is “Vizzerra.” Because we must rely on the evidence presented at
trial, we will use the name as it appears in the record.
ANN. § 19.02(b), (c) (West Supp. 2023); § 29.03(a), (b) (West 2019). The jury found
Appellant guilty of each offense. The trial court found the enhancement allegations
to be “true” for each offense and assessed Appellant’s punishment at imprisonment
for (1) seventy-five years in the Institutional Division of the Texas Department of
Criminal Justice (TDCJ) for the murder conviction, (2) forty-five years in TDCJ for
the aggravated-robbery conviction involving Caleb Martinez, and (3) forty-five
years in TDCJ for the aggravated-robbery conviction involving Andrea Ortiz. The
sentences were ordered to be served concurrently.
In his sole issue on appeal, Appellant challenges the trial court’s admission of
State’s Exhibit No. 26, which consists of twenty video clips captured by a home
surveillance system (the video clips), over Appellant’s Rule 403 objection. We
affirm.
I. Factual Background
Appellant resided in Taylor County with his roommates, Vizzera and
Martinez. Martinez testified that on October 14, 2021, he arrived home at 7:06 p.m.
to find Appellant intoxicated and yelling in the front yard. Appellant’s neighbor,
Clifford Coffman, testified that he saw Appellant that day “in the street screaming,
hollering, [and] shooting off a weapon.” Coffman also stated that, later that evening,
Appellant knocked on his door and shot him five times.
Martinez testified that, at some point that night, Vizzera entered Martinez’s
room and told him that Appellant had “just shot the man across the street.” Shortly
thereafter, Martinez left the house. When Martinez returned, he went to the front
porch and interacted with Vizzera. Martinez also testified that, around this time, he
overheard Appellant and Appellant’s cousin discussing “the man across the street”
but stated that their conversation “made no sense.” As Martinez was walking to the
bathroom, he heard a loud “bang” from the front porch. Martinez was anxious and

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testified that he heard someone yelling outside, which prompted him to leave the
house. As Martinez left, he saw Appellant on the side yard and “believed he had a
gun in hand”—along with Appellant’s cousin, who was standing next to the tailgate
of a pickup that was parked in front of their house. Martinez did not see Vizzera
when he left the house.
When Martinez left for the second time, he went to pick up his girlfriend,
Ortiz, from work. After he picked up Ortiz, Martinez returned to his house with
Ortiz. Martinez retrieved some of his personal belongings from his room, but, as he
was leaving, he saw Appellant outside holding a gun. Appellant followed Martinez
to his car and proceeded to point the gun at Ortiz. Appellant then ordered Martinez
and Ortiz to give him their cell phones, and threatened to shoot Ortiz if they did not
comply with his demand. Martinez testified that Appellant said that he wanted
Ortiz’s cell phone because he did not want her to call the police. Martinez and Ortiz
complied and gave Appellant their cell phones. Martinez testified that he then told
Appellant that he was going to go see his daughter; Appellant allowed Martinez and
Ortiz to leave, telling them that “[he had] already killed two people.”
The next morning a truck driver found Vizzera’s body on the roadside. Tracy
Dyer, a forensic pathologist and the deputy chief medical examiner for Dallas
County, testified that she performed an autopsy on Vizzera and determined that his
death was caused by “homicidal violence including ligature strangulation and blunt
force trauma.” Dyer also testified that Vizzera had a “patterned injury” on his face
which could be consistent with “the butt of a firearm.”
During their investigation, officers with the Abilene Police Department
recovered video footage from the home surveillance camera of Appellant’s
neighbor, which captured some of the events that occurred on October 14. At trial,
the State offered Exhibit No. 26, a series of twenty video clips from the recovered

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video footage, each approximately one-minute in duration. These video clips depict,
among other things, (1) Appellant yelling at someone across the street with Vizerra
present, (2) Vizzerra standing outside in the front yard of the house just before an
individual is seen in the doorway of Coffman’s residence and audible gunshots are
heard, (3) Appellant’s possession of a firearm, (4) Appellant standing close to
Martinez’s vehicle and taking Martinez’s and Ortiz’s cell phones, and
(5) Appellant’s admission that he had “killed two people.” Abilene Police Detective
Michael Scott testified that the video clips showed a pickup outside Appellant’s
residence, which he believed was used to transport Vizzera’s body that night.
Appellant’s trial counsel objected to the admission of the video clips based on
(1) “a lack of foundation,” (2) Rule 403, that the probative value of the video clips
would be substantially outweighed by their prejudicial effect, and (3) Rule 404(b),
that the video clips constituted improper extraneous-offense evidence.2 See TEX. R.
EVID. 403, 404. The State argued that, while the video clips were inherently
prejudicial, the video clips were probative to show Appellant’s motive for murdering
Vizzera—Appellant intended to kill Vizzera because he was a witness to the
shooting of Coffman. The trial court overruled Appellant’s objections and admitted
the video clips. 3
II. Standard of Review
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). This

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Appellant restricts his argument on appeal to the second contention—that the trial court abused its
discretion when it admitted State’s Exhibit No. 26 over Appellant’s Rule 403 objection.
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Following the trial court’s ruling, Appellant’s trial counsel clarified with the State “which ones
were subject to the objections,” to which the State responded that it “believe[d] it’s number 11 and number
12 from 26.” Appellant’s trial counsel re-urged his “objection” and requested a running objection without
further clarifying which video clips were subject to his objection, or whether he was referring to his first,
second, or third objection to the video clips.
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standard also applies to a trial court’s decision to admit or exclude extraneous-
offense evidence. Perkins v. State, 664 S.W.3d 209, 216–17 (Tex. Crim. App.
2022); Arevalo v. State, 675 S.W.3d 833, 843 (Tex. App.—Eastland 2023, no pet.).
The trial court’s decision will be upheld as long as it was within the “zone of
reasonable disagreement.” Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App.
2018) (quoting McGee v. State, 233 S.W.3d 315, 318 (Tex. Crim. App. 2007)).
Further, we will not reverse a trial court’s evidentiary ruling, even if the trial court’s
reasoning is flawed, if it is correct on any theory of law that finds support in the
record and is applicable to the case. Henley v. State, 493 S.W.3d 77, 93 (Tex. Crim.
App. 2016); Luna v. State, 687 S.W.3d 79, 95 (Tex. App.—Eastland 2024, pet.
ref’d).
III. Analysis
In his sole issue on appeal, Appellant argues that the trial court abused
its discretion when it admitted State’s Exhibit No. 26—the video clips—over his
Rule 403 objection because the video clip contents were unfairly prejudicial. See
TEX. R. EVID. 403. Specifically, Appellant argues that the “probative value of the
evidence was substantially outweighed by the chances of substantial unfair
prejudice” because: (1) the video clips, when assessed independently from the other
evidence admitted at trial, are lacking in probative value because the video clips
alone do not prove, nor show, that Appellant committed the offenses for which he
was convicted, or that he shot Coffman; (2) the video clips do not show that
Appellant’s motive for murdering Vizzera was an “effort to silence any witness[es]”
to the shooting of Coffman; and (3) the video clips were repetitious and irrelevant.
“Generally, all relevant evidence is admissible.” Layton v. State, 280 S.W.3d
235, 240 (Tex. Crim. App. 2009) (citing TEX. R. EVID. 402). “Evidence is relevant
if it tends to make a fact ‘of consequence in determining the action’ more or less

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probable than it would be otherwise.” Inthalangsy v. State, 634 S.W.3d 749, 754
(Tex. Crim. App. 2021) (citing TEX. R. EVID. 401). Additionally, the considerations
under Rule 403 for determining the admissibility of videos, audiovisual recordings,
and photographs are generally the same. See Gordon v. State, 784 S.W.2d 410, 411
(Tex. Crim. App. 1990) (“Motion pictures are just a collection of photographs and
the rules surrounding admission are the same as those for still photographs.”)
(quoting Marras v. State, 741 S.W.2d 395, 404 (Tex. Crim. App. 1987)).
Rule 403 favors the admission of relevant evidence and carries a presumption
that relevant evidence will be more probative than prejudicial. Hall v. State, 663
S.W.3d 15, 34 (Tex. Crim. App. 2021); Arevalo, 675 S.W.3d at 851; Walter v. State,
581 S.W.3d 957, 978 (Tex. App.—Eastland 2019, pet. ref’d) (quoting Hayes v. State,
85 S.W.3d 809, 815 (Tex. Crim. App. 2002)). However, Rule 403 also provides that
relevant evidence may nonetheless be excluded “if its probative value is
substantially outweighed by a danger of . . . unfair prejudice.” TEX. R. EVID. 403.
So even if a trial court determines that evidence is relevant and admissible for a non-
conformity purpose, Rule 403 may still preclude its admission if, on balance, the
probative value of the evidence is substantially outweighed by the risk of unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence. TEX. R. EVID. 403; Perkins, 664 S.W.3d at 216.
When conducting a Rule 403 analysis, a trial court must balance:
(1) the inherent probative force of the proffered item of evidence along
with (2) the proponent’s need for that evidence against (3) any tendency
of the evidence to suggest [a] decision on an improper basis, (4) any
tendency of the evidence to confuse or distract the jury from the main
issues, (5) any tendency of the evidence to be given undue weight by a
jury that has not been equipped to evaluate the probative force of the
evidence, and (6) the likelihood that presentation of the evidence will
consume an inordinate amount of time or merely repeat evidence
already admitted.

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Hall, 663 S.W.3d at 32 (quoting Gigliobianco v. State, 210 S.W.3d 637, 641–42
(Tex. Crim. App. 2006)); Roe v. State, 660 S.W.3d 775, 784 (Tex. App.—Eastland
2023, pet. ref’d.).
We begin with the first Gigliobianco factor, which focuses on the inherent
probative force of the proffered evidence. Roe, 660 S.W.3d at 784. “[P]robative
value” in Rule 403 refers “to how strongly an item of evidence ‘serves to make more
or less probable the existence of a fact of consequence to the litigation[,] coupled
with the proponent’s need for that item of evidence.’” Id. at 784–85 (quoting
Gigliobianco, 210 S.W.3d at 641); see also Luna, 687 S.W.3d at 99.
Although motive is not an element of murder, it may constitute a circumstance
that is indicative of a person’s guilt and therefore be admissible as an evidentiary
fact that leads inferentially to an elemental fact, such as identity, intent, absence of
mistake, or accident. See Clayton v. State, 235 S.W.3d 772, 781 (Tex. Crim. App.
2007); Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1998) (citing
Montgomery v. State, 810 S.W.2d 372, 387–91 (Tex. Crim. App. 1990) (op. on
reh’g)). Here, the State offered the video clips to show Appellant’s intent or motive
for committing the murder of Vizzera. See Colone v. State, 573 S.W.3d 249, 267
(Tex. Crim. App. 2019) (“[T]he prosecution may always offer evidence to show
motive.”) (internal quotation marks omitted); see also TEX. CODE CRIM. PROC. ANN.
art. 38.36 (West 2018) (in prosecutions for murder, the parties must be permitted to
offer testimony as to all relevant facts and circumstances surrounding the killing and
the state of mind of the accused at the time of the offense).
Martinez testified that Vizzera entered his room and told him that Appellant
had “just shot the man across the street,” and after that Martinez left the house.
Martinez testified that he did not see Vizerra again that night. However, Martinez’s
testimony does not explain where Vizzera was during the shooting, if Vizzera

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witnessed Appellant shoot Coffman, or if Appellant knew that Vizzera was a witness
to the shooting of Coffman. In Video Clip No. 8, Vizerra can be seen standing
outside with Appellant, who is yelling across the street in the direction of Coffman’s
residence. In Video Clip Nos. 9 and 10, Vizerra is seen standing in the front yard
before a gunshot is heard. In Video Clip Nos. 11 and 12, Vizerra can be seen
standing outside of Appellant’s house just before an individual is seen standing in
the doorway to Coffman’s residence and another gunshot is heard. These events
occurred within approximately twenty-two minutes of each other. According to
Detective Scott, Video Clip No. 12 was the last time that Vizzera was seen alive on
video, and Vizzera is not seen in the eight subsequent video clips. Further, Detective
Scott identified Appellant as the individual standing in the doorway of Coffman’s
home.
Based on the admitted video clips, the trial court could have reasonably
concluded that the effect of this video evidence made the State’s assertion that
Vizzera witnessed Appellant shoot Coffman more or less probable, because the State
had no other available evidence to establish that Vizerra was standing outside and
witnessed the shooting. See Montgomery, 810 S.W.2d at 390. Thus, the video clips
were relevant and probative to show that Appellant had the intent or motive to
murder Vizzera because he was a possible witness to the shooting of Coffman. See
Gigliobianco, 210 S.W.3d at 641; Roe, 660 S.W.3d at 784–85.
Moreover, despite Appellant’s contentions, the video clips are relevant and
probative in assessing other elements of the charged offenses, because the video
clips show (1) Appellant’s possession of a firearm; (2) Appellant taking Martinez’s
and Ortiz’s cell phones; and (3) Appellant’s statements and admissions to Martinez
that he “punched that n---a 30 times” and that he “killed two people.” See PENAL
§§ 19.02, 29.03.

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Evidence that Appellant possessed a firearm was highly probative as to each
of the charged offenses. First, the video clips were probative in that they
strengthened the State’s argument that Appellant murdered Vizzera because there
was testimony that Vizerra’s murder could have been caused by blunt force trauma
from the “butt of a firearm.” As such, the video clips made the fact that Appellant
used a firearm to murder Vizerra more probable. See Roe, 660 S.W.3d at 784.
Second, for the aggravated robbery offenses, Martinez and Ortiz testified that
Appellant pointed a firearm at Ortiz when he threatened, demanded, and eventually
took their cell phones from them. Their testimony is corroborated by the video clips,
which makes Appellant use of a firearm more probable. See id. Appellant’s
statements as captured by the video footage are also highly relevant and probative
to show Appellant’s mental state and to infer his “consciousness of guilt” as he
confessed to his involvement in the murder of two people. See id. at 785. Finally,
the video clips assisted the jury in assessing witness credibility, and in resolving any
inconsistencies, concerning Appellant’s behavior, demeanor, or statements made by
him during the commission of the charged offenses. See Luna, 687 S.W.3d at 99.
As such, the first factor weighs in favor of admission.
The second Gigliobianco factor—the State’s need for the evidence—also
weighs in favor of admission as the trial court could have reasonably concluded that
the State had a significant need for this evidence. See Gigliobianco, 210 S.W.3d at
641–42. As we have previously discussed, the video clips were necessary and
probative evidence to show Appellant’s intent or motive for the murder of Vizzera,
because there was limited evidence available to the State to establish this fact except
for Martinez’s testimony. See Garcia v. State, 630 S.W.3d 264, 269 (Tex. App.—
Eastland 2020, no pet.). Further, the video clips were necessary for the jury to assess
the credibility of the State’s witnesses and to resolve any inconsistencies in their

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testimony and provided the necessary context for the events that occurred that night.
For example, Martinez testified that Appellant made him retrieve a pressure washer
before he pointed the firearm at Ortiz and demanded their cell phones; however, the
video clips contradict Martinez’s testimony and show that Martinez walked directly
to his vehicle without retrieving the pressure washer, followed by Appellant who
asked for his cell phone. The video clips were probative in establishing the elements
of the charged offenses and corroborated the testimony of others, such as Martinez’s
testimony that Appellant said that he “killed two people,” that Appellant possessed
a firearm that night, and that Appellant took Martinez’s and Ortiz’s cell phones to
prevent them from calling the police. Therefore, the trial court could have
reasonably concluded that the video clips were necessary to show that Appellant
committed the charged offenses. See Gigliobianco, 210 S.W.3d at 641.
The remaining four Gigliobianco factors concern the potential negative
effects of the proffered evidence. Garcia, 630 S.W.3d at 269. Of these factors, the
third, fourth, and fifth Gigliobianco factors focus on the tendency of the evidence to
suggest a decision on an improper basis, the potential to confuse or distract the jury
from the main issues, and the potential to mislead the jury. Hall, 663 S.W.3d at 33;
Roe, 660 S.W.3d at 785. “Unfair prejudice refers to the evidence’s ‘tendency to
tempt the jury into finding [the defendant] guilt[y] on grounds apart from proof of
the offense charged.’” Perkins, 664 S.W.3d at 216 (quoting State v. Mechler, 153
S.W.3d 435, 440 (Tex. Crim. App. 2005)). Here, the admission of the video clips
was undoubtedly prejudicial to Appellant’s case, as all evidence presented against a
defendant is designed to be prejudicial; however, the primary focus of Rule 403 is
not only with what constitutes prejudicial evidence, but rather with evidence that is
unfairly prejudicial. TEX. R. EVID. 403; Pawlak v. State, 420 S.W.3d 807, 811 (Tex.
Crim. App. 2013).

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We note that while Appellant does not challenge on appeal the video clips’
depiction of Coffman’s shooting as being improper extraneous-offense evidence,
Appellant does argue that the video clips of the shooting were unfairly prejudicial.
To this point, the trial court included a limiting instruction in its charge regarding
the jury’s consideration of extraneous offenses and bad acts. We presume that the
jury obeyed this instruction. See Resendiz v. State, 112 S.W.3d 541, 546 (Tex. Crim.
App. 2003) (appellate courts presume that the jury follows instructions); Roe, 660
S.W.3d at 785; see also Arevalo, 675 S.W. 3d at 851; Wishert v. State, 654 S.W.3d
317, 334 (Tex. App.—Eastland 2022, pet. ref’d). Thus, the trial court took
appropriate measures to mitigate the potential improper influence of the video clips
as they pertain to any extraneous offenses, and any potential harm to Appellant was
mitigated by its limiting instruction. See Luna, 687 S.W.3d at 104; Gaytan v. State,
331 S.W.3d 218, 228 (Tex. App.—Austin 2011, pet. ref’d).
Additionally, there was minimal risk that this evidence would confuse or
distract the jury from the main issues of the case. The video clips directly related to,
and were probative of, the elements of the charged offenses of murder and
aggravated robbery. The video clips depicted Appellant’s actions that night and
corroborated other witness testimony concerning the charged offenses. The video
clips were not scientific in nature, nor were the video clips overly complex for the
jury to consider. See James v. State, 623 S.W.3d 533, 550 (Tex. App.—Fort Worth
2021, no pet.).
The video clips are not particularly graphic, offensive, or otherwise
excessively or unfairly prejudicial to Appellant. The specific video clips that
captured an individual shooting Coffman do not show any injuries to him or other
graphic evidence as a result of the shooting and were necessary to show Appellant’s
intent or motive for murdering Vizzera. See Erazo v. State, 144 S.W.3d 487, 491–

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92 (Tex. Crim. App. 2004) (holding that when an element of a photograph is
“genuinely helpful to the jury . . . the photograph is inadmissible only if the
emotional and prejudicial aspects substantially outweigh the helpful aspects”)
(emphasis added). As such, the trial court could have reasonably concluded that the
contents of the video clips were not unfairly prejudicial, did not have a tendency to
suggest the jury’s decision on an improper basis, and did not have a tendency to
confuse, distract, or mislead the jury from the main issues in the case. Id.; see
Gigliobianco, 210 S.W.3d at 641–62; Garcia, 630 S.W.3d at 269. Therefore, we
conclude that the third, fourth, and fifth Gigliobianco factors weigh in favor of
admission.
As for the sixth Gigliobianco factor—the time needed to present the evidence
and whether it is cumulative of other evidence—the admission of the video clips did
not cause an undue delay or result in the needless presentation of cumulative
evidence. Here, the video clips were efficiently authenticated, and it only took
approximately thirty-six minutes to present this evidence to the jury over the course
of a two-and-a-half-day trial. As such, the amount of time dedicated to offer, admit,
and present the video clips to the jury was minimal. See Gigliobianco, 210 S.W.3d
at 641. Additionally, while there was some testimony regarding the events that were
captured in the video clips, this evidence clarified the testimony of Martinez and
other witnesses and provided a different perspective from other admitted evidence
concerning the charge offenses. See Garcia, 630 S.W.3d at 270. Thus, the trial
court’s decision to admit these video clips did not disrupt the efficient administration
of the trial, and the video clips were not overly cumulative of other evidence
presented.
Having considered the Gigliobianco factors, we conclude all factors weigh in
favor of the admission of State’s Exhibit No. 26. Therefore, the trial court did not

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abuse its discretion when it admitted this evidence. Accordingly, we overrule
Appellant’s sole issue on appeal.
IV. This Court’s Ruling
We affirm the judgments of the trial court.

W. STACY TROTTER
JUSTICE

August 1, 2024
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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