No. 14-03-00832-CR
Memorandum Opinion Filed October 12, 2004. DO NOT PUBLISH. Tex.R.App.P.47.2(b).
On Appeal from the 208th District Court, Harris County, Texas, Trial Court Cause No. 878,066. Affirmed.
Panel consists of Chief Justice HEDGES and Justices SEYMORE and ANDERSON.
CHARLES W. SEYMORE, Justice.
Appellant, Alex Adams, appeals his conviction for attempted capital murder on the grounds that the trial court violated his constitutional rights by (1) cumulating his sentence with one in another case, and (2) admitting evidence of an extraneous offense. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See TEX. R. APP. P. 47.4.
I. BACKGROUND
On May 22, 2001, Houston Police Department Officers Alberto Vasquez, Enrique Duharte-Tur, Steve Bryant, and Major Johnson were working extra jobs at an apartment complex. Suspecting drug possession or trespassing, the officers detained appellant, Lew Whiting, and three other individuals. Officers Vasquez and Duharte escorted appellant and Whiting to the apartment leasing office for processing, while Officers Bryant and Johnson escorted the other three individuals to the office along a different route. Officer Duharte ran ahead to make sure the office was open. Before he reached the office, he heard a gunshot and ran back to where Officer Vasquez was watching appellant and Whiting. Officer Duharte saw appellant shoot Officer Vasquez in the head. Appellant then shot Officer Duharte four times. Officer Vasquez died from his wound, but Officer Duharte survived. Appellant was arrested and charged with the capital murder of Officer Vasquez and the attempted capital murder of Officer Duharte. The cases were tried separately. In each case, appellant was convicted and sentenced to life imprisonment. The State moved to cumulate the sentences, and the trial court granted the motion. II. CUMULATIVE SENTENCES
In his first issue, appellant contends cumulation of his sentences will make him ineligible for parole until he is ninety-two years old, thereby violating his right to be free from cruel and unusual punishment. See U.S. Const. amend. 8; TEX. CONST., art. 1, § 13. The State contends that appellant waived this argument by not presenting it to the trial court. See TEX. R. APP. P. 33.1(a). We agree with the State. Relying on the Court of Criminal Appeal's opinion in LaPorte v. State, 840 S.W.2d 412 (Tex.Crim.App. 1992), appellant argues that he was not required to present his argument to the trial court. In LaPorte, the trial court cumulated the defendant's sentences for offenses arising out of the same criminal episode and prosecuted in a single criminal action. Id. at 413. Such cumulation was prohibited by section 3.03 of the Texas Penal Code. Id. at 413 n. 2. The Court concluded that the cumulation was, "in essence, a void sentence, and such error cannot be waived." Id. at 415. Courts have distinguished between a claim that a sentence is prohibited by statute and a claim that a sentence is unconstitutional. See Nicholas v. State, 56 S.W.3d 760, 764, 768 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (addressing the defendant's unpreserved arguments that cumulation was prohibited by the Texas Code of Criminal Procedure, but holding that his unpreserved constitutional argument was waived). A claim that a sentence is prohibited by statute cannot be waived and may be raised for the first time on appeal. See LaPorte, 840 S.W.2d at 415; Nicholas, 56 S.W.3d at 764. However, a claim that a sentence is unconstitutional must be preserved by an objection at trial. See Nicholas, 56 S.W.3d at 768; Keith v. State, 975 S.W.2d 433, 433-34 (Tex.App.-Beaumont 1998, no pet.); Cruz v. State, 838 S.W.2d 682, 687 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd). Even constitutional errors may be subject to waiver by procedural default. See Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App. 1990). Appellant's reliance on LaPorte v. State is thus misplaced. He does not argue that the trial court lacked authority to cumulate his sentences under either the Texas Penal Code or the Texas Code of Criminal Procedure. He argues only that the cumulation was cruel and unusual. Because he did not object on that basis at trial, he preserved nothing for review. See Nicholas, 56 S.W.3d at 768; Keith, 975 S.W.2d at 433-34; Cruz, 838 S.W.2d at 687. Even if the issue had been preserved for review, we note that the Court of Criminal Appeals has already stated that "the cumulation of sentences does not constitute cruel and unusual punishment." Stevens v. State, 667 S.W.2d 534, 538 (Tex.Crim.App. 1984); see also Baird v. State, 455 S.W.2d 259, 259 (Tex.Crim.App. 1970). Further, the Court of Criminal Appeals has rejected the argument that a defendant has effectively received a sentence of life without parole when he is not expected to live long enough to be eligible for parole. See Colburn v. State, 966 S.W.2d 511, 517 (Tex.Crim.App. 1998). We overrule appellant's first issue. III. EXTRANEOUS OFFENSE EVIDENCE
In his second issue, appellant contends admission of extraneous offense evidence violated his right to be free from double jeopardy. See U.S. Const., amend. 5; TEX. CONST., art. 1, § 14. The State contends appellant waived this argument by failing to cite authority addressing the double jeopardy clauses. See TEX. R. APP. P. 38.1(h). We agree that appellant waived his constitutional argument. See id. However, because appellant cited authority addressing admissibility of extraneous offenses, we will address those concerns. Although appellant complains of "great amounts of prejudicial testimony" and that "far too many details" were admitted, the only evidence he specifically refers to is an autopsy report including details regarding the angle of the wound and photographs of the body. Appellant objected to this evidence on the grounds that it was not relevant and that its prejudicial effect greatly outweighed its probative value. See TEX. R. EVID. 402, 403. We review the trial court's decision to admit the evidence for abuse of discretion. Osbourn v. State, 92 S.W.3d 531, 537 (Tex.Crim.App. 2002). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." TEX. R. EVID. 401. Evidence that is not relevant is absolutely inadmissible. TEX. R. EVID. 402; King v. State, 17 S.W.3d 7, 20 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). The identity of the person who shot Officer Vasquez was a fact of consequence because Officer Duharte testified that he was shot by the same person who shot Officer Vasquez. Appellant argued at trial that Whiting, the other person being detained, shot Officer Vasquez. The autopsy report and photographs, which indicated the location of the wound and the trajectory of the bullets, tended to refute that argument. Thus, the trial court did not abuse its discretion in determining the autopsy report and photographs were relevant. Relevant evidence may nonetheless be excluded if its probative value is substantially outweighed by its prejudicial effect. TEX. R. EVID. 403. The evidence is presumed to be admissible and should be excluded only when there is a "clear disparity between the degree of prejudice of the offered evidence and its probative value." Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999). The relevant criteria in determining whether the prejudice of admitting evidence outweighs its probative value include the following: (1) how compellingly the evidence makes a fact of consequence more or less probable; (2) the potential the evidence has to impress the jury in an irrational but nevertheless indelible way; (3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and (4) the proponent's need for the evidence to prove a fact of consequence, i.e., whether the proponent has other probative evidence available to him to help establish this fact, and whether this fact related to an issue in dispute. Id. As previously noted, considering Officer Duharte's testimony, evidence in the autopsy report tends to make it more probable that appellant, not Whiting, shot Officer Vasquez; therefore appellant also shot Officer Duharte. The autopsy report is highly technical and contains no inflammatory language likely to influence the jury in an irrational way. The autopsy report is only eight pages long, and the medical examiner's testimony about the report comprised only eleven pages in the four volumes of testimony on guilt/innocence. Finally, the State needed the report because appellant and Whiting each testified that the other shot Officers Vasquez and Duharte, and the report helped establish that appellant was the one who did so. Although Officer Duharte also identified appellant, he was seriously wounded in the shooting and there appears to have been some inconsistency between his statements immediately after he was shot and his memory of the events at trial. All of these factors weigh in favor of considering the autopsy report admissible under Rule 403. We hold that the trial court did not abuse its discretion in determining that the probative value of the autopsy report was not substantially outweighed by its prejudicial effect. Because additional factors govern the admissibility of the autopsy photographs under Rule 403, we will address the photographs separately. Relevant factors in ascertaining the admissibility of photographs under Rule 403 include the following: the number of exhibits offered; their gruesomeness, detail, and size; whether they are black-and-white or color; whether they are close-up; whether the body is naked or clothed; the availability of other means of proof; and other circumstances unique to the individual case. Santellan v. State, 939 S.W.2d 155, 172 (Tex.Crim.App. 1997). Autopsy or post-autopsy photographs can be used to illustrate injuries and to reveal cause of death. Drew v. State, 76 S.W.3d 436, 452 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd); Ladner v. State, 868 S.W.2d 417, 426 (Tex.App.-Tyler 1993, pet. ref'd). As long as the post-autopsy photograph aids the jury in understanding the injury and does not emphasize mutilation caused by the autopsy, the photograph is generally admissible even though it depicts the autopsy. Rojas v. State, 986 S.W.2d 241, 249 (Tex.Crim.App. 1998); Drew, 76 S.W.3d at 452. Finally, photographs are generally admissible where verbal testimony about the same matter is admissible. Jones v. State, 944 S.W.2d 642, 652 (Tex.Crim.App. 1996). Twelve autopsy photographs were admitted. The photographs were not unnecessarily gruesome; it appears the blood had been cleaned from the body, and no mutilation had been caused by the autopsy aside from shaving the hair from around the exit wound so that the wound could be seen. Because the record contains only letter-size, black-and-white photocopies of the photographs, we cannot be certain of their detail, their size, or whether they were in black-and-white or color. Some of the photographs were close-up, but the medical examiner testified that the close-up photographs were necessary to distinguish between entry wounds and exit wounds. In only one photograph is it apparent that the body is naked. The medical examiner testified that the photographs would aid the jury in understanding her testimony. Finally, the trial court excluded any duplicative autopsy photographs. Considering all of these factors, we hold that the trial court did not abuse its discretion in determining the probative value of the autopsy photographs was not substantially outweighed by their prejudicial effect. We overrule appellant's second issue. Accordingly, the judgment of the trial court is affirmed.