Opinion
No. 05-01-01714-CR No. 05-01-01715-CR
Opinion issued May 23, 2003 Do Not Publish
On Appeal from Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause Nos. F00-51589-IL, F00-51590-IL. AFFIRMED
Before Justices JAMES, BRIDGES, and RICHTER.
OPINION
Jose Amador appeals his murder conviction in cause number 05-01-01714-CR and his aggravated assault conviction in cause number 05-01-01715-CR. The jury convicted appellant in each case and assessed punishment at ninety-nine years' confinement in cause number 05-01-01714-CR and five years' confinement in cause number 05-01-01715-CR. In four points of error in cause number 05-01-01714-CR and three points of error in cause number 05-01-01715-CR, appellant argues the evidence is legally and factually insufficient to support his murder conviction or show he used a cane during the commission of an aggravated assault, the trial court erred in admitting into evidence certain inflammatory photos, and the State failed to disprove appellant committed murder under the immediate influence of sudden passion arising from an adequate cause. We affirm the trial court's judgments. On July 22, 2000, nurse Amelia Hillman was working at the Professional Care Center in Dallas county. When Hillman arrived at work, she saw four call lights lit, and she went to investigate. When she got to the room appellant shared with the decedent, the door was closed, but she could hear a thumping sound on the wall. Hillman opened the door and called out, but she received no response. Though she could not see appellant or the decedent, Hillman saw blood on the floor and went inside. Hillman saw appellant was in his wheelchair, and she saw him place a bloody drawer on a bed. Hillman leaned over the bed, which was "full of blood," and saw the decedent's legs. Hillman asked appellant what he had done, and appellant hit Hillman across the head with a cane. Appellant tried to hit Hillman over the head a second time, but she fled and summoned help. Dallas police detective Robert Mitchell was called to the scene, and he found appellant's room in disarray. There was a large amount of blood and blood spatter in the room and pieces of a broken walking cane were scattered around the room. On top of a bed, there was a bloody drawer that had human hair on one end of it. Mitchell photographed the scene and collected the drawer and the broken cane. Mitchell then went to Parkland hospital where he photographed appellant and the decedent. Dallas police officer Irene Noah testified she was called to the scene and spoke with appellant, who said he had been attacked by a man. Appellant said he and the man had argued about the bathroom. Jeffrey Barnard, chief medical examiner for Dallas county, testified he performed an autopsy on the decedent. Barnard found approximately sixteen lacerations on the decedent's head, a large amount of bruising on the decedent's face, bruises on the upper and lower extremities, and fractures of the hands and skull. Barnard testified the decedent's injuries were consistent with his trying to defend himself. Based on his examination, Barnard determined the decedent died of multiple blunt force injuries. Barnard also reviewed appellant's emergency room records and testified appellant had lacerations on his head when he was examined at the emergency room. Barnard testified appellant's injuries were not life-threatening and could have been self-inflicted. The jury subsequently convicted appellant of murder in cause number 05-01-01714-CR and aggravated assault in cause number 05-01-01715-CR. These appeals followed. In his first and second points of error in cause numbers 05-01-01714-CR and 05-01-01715-CR, appellant argues the evidence is legally and factually insufficient to prove he committed murder or committed aggravated assault using a cane. When reviewing challenges to the legal and factual sufficiency of the evidence, we apply well known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); see also Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The factfinder is the sole judge of the witnesses' credibility and their testimony's weight. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984). The factfinder may believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). A person commits murder if he intentionally or knowingly causes the death of an individual. Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 2003). A person commits aggravated assault if he intentionally, knowingly, or recklessly causes bodily injury to another and uses or exhibits a deadly weapon. See Tex. Pen. Code Ann. §§ 22.01(a)(1); 22.02(a)(2) (Vernon 2003). Here, Hillman found appellant in a bloody room and saw him place a bloody drawer on a bed. When Hillman approached and saw the decedent lying on the floor, appellant hit her on the head with a cane. There were sixteen lacerations on the decedent's head, a large amount of bruising on the decedent's face, bruises on the upper and lower extremities, and fractures of the hands and skull. Barnard testified the decedent's injuries were consistent with his trying to defend himself, and the decedent died of multiple blunt force injuries. Although appellant testified the decedent was the aggressor and appellant only acted in self defense, the jury was free to disbelieve this testimony. See Sharp, 707 S.W.2d at 614. Similarly, the jury was free to believe Hillman's testimony that appellant struck her with a cane and disregard appellant's testimony that he did not "remember anything" about hitting a nurse. See id. We overrule appellant's first and second points of error in cause numbers 05-01-01714-CR and 05-01-01715-CR. In his third point of error in cause numbers 05-01-01714-CR and 05-01-01715-CR, appellant argues the trial court erred in admitting certain autopsy photos of injuries to the decedent's head, face, and mouth. When determining whether the trial court abused its discretion in admitting relevant photographs into evidence, our review is limited to determining whether the probative value of the photographs is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. See Tex.R.Evid. 403; Jones v. State, 944 S.W.2d 642, 651 (Tex.Crim.App. 1996). A court may consider several factors in deciding whether the probative value of photographs is substantially outweighed by the danger of unfair prejudice. These factors include, but are not limited to (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, and (7) whether the body depicted is naked or clothed. See Chamberlain v. State, 998 S.W.2d 230, 237 (Tex.Crim.App. 1999) (citing Long v. State, 823 S.W.2d 259, 271 (Tex.Crim.App. 1991)). The six photographs about which appellant complains are 8 ½ "by 11" black and white photographs showing the extent of the injuries to the decedent's head, face, and mouth. Appellant does not allege any tampering, enhancement, or attempt by the State to inflame, confuse, or mislead the jury in its presentation of the photographs. See Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App. 1995). The photographs are not "so horrifying or appalling that a juror of normal sensitivity would necessarily encounter difficulty deciding the critical issues of the case after viewing them." See Fuller v. State, 829 S.W.2d 191, 206 (Tex.Crim.App. 1992), overruled on other grounds by Castillo v. State, 913 S.W.2d 529, 534 (Tex.Crim.App. 1995). Rather, they are no more gruesome than the crime appellant committed. See Long, 823 S.W.2d at 273. After reviewing the photographs, we do not conclude the trial court abused its discretion in admitting them. We overrule appellant's third point of error in cause numbers 05-01-01714-CR and 05-01-01715-CR. In his fourth point of error in cause number 05-01-01714-CR, appellant argues the State failed to produce affirmative evidence to support the jury's failure to find that appellant caused the decedent's death while under the immediate influence of sudden passion arising from an adequate cause. We note the burden of proof on the issue of sudden passion is on the defendant. See Tex. Pen. Code Ann. § 19.02(d) (Vernon 2003); Mims v. State, 3 S.W.3d 923, 927 (Tex.Crim.App. 1999). We apply a factual sufficiency review to a challenge to the sufficiency of the evidence to support a jury's finding that a defendant failed to prove he acted under the influence of sudden passion. See Naasz v. State, 974 S.W.2d 418, 420-23 (Tex.App.-Dallas 1998, pet. ref'd). When a defendant challenges the factual sufficiency of the rejection of a defense, the reviewing court reviews all of the evidence in a neutral light and asks whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003) (citing Johnson, 23 S.W.3d at 11.). Our evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility of witness testimony. Naasz, 974 S.W.2d at 423. In this case, appellant testified the decedent attacked him when appellant went to the bathroom. Appellant claimed he acted in self defense. However, the decedent's brother testified the decedent could not walk and only had the use of his right arm and leg. An examination of appellant after the struggle showed appellant had lacerations on his head. In contrast, the decedent had sixteen lacerations on his head, a large amount of bruising on his face, bruises on his upper and lower extremities, and fractures of his hands and skull consistent with his trying to defend himself. In fact, the decedent died from the multiple blunt force injuries he received. After appellant had beaten the decedent and the decedent was lying on the floor, appellant attacked a nurse when she came into the room. Under these circumstances, we cannot conclude the State's evidence taken alone was too weak to support the jury's failure to find appellant acted under the immediate influence of sudden passion or that this failure to find was against the great weight and preponderance of the evidence. See Zuliani, 97 S.W.3d at 595. We overrule appellant's fourth point of error in cause number 05-01-01714-CR. We affirm the trial court's judgments.