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holding that photograph of victims taken before death was not excludable as prejudicial when it was relevant to prove their appearances before their deaths, allowed jury to have mental impression of victims, and was only photo offered depicting victims before death
Summary of this case from New v. StateOpinion
No. 05-02-00865-CR.
Opinion Filed March 25, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 86th Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 20,611. AFFIRMED.
Before Justices WHITTINGTON, MOSELEY, and FRANCIS.
OPINION
A jury convicted Andrew Niles Gordon of capital murder in the shooting deaths of his elderly parents, and the trial court imposed an automatic life sentence. In six points of error, appellant complains the trial court erred in (1) denying his motion to transfer venue, (2) denying his motion to declare the capital murder statute unconstitutional, (3) admitting some evidence and excluding other evidence, and (4) failing to instruct the jury on the lesser offense of murder. Appellant also complains the evidence is legally insufficient to support his conviction. For the reasons set out below, we overrule all points of error and affirm the trial court's judgment. On May 8, 2001, Kaufman County sheriff's deputies were dispatched to a farm in Terrell where they found the bodies of Harrell and Dorothy Gordon, ages 80 and 77, respectively. Mr. Gordon was in the front seat of a Volkswagen, and Mrs. Gordon was on the ground on the other side of the car. The medical examiner determined that Mr. Gordon died of one gunshot wound to the chest while Mrs. Gordon died of two gunshot wounds to the abdominal area. The next day, the Gordons' son, appellant, confessed to the shooting. In a statement to the police, he said he and his father were outside when he asked to borrow his father's truck. His father refused, and appellant became angry. Appellant went into the house and got his Mini-14 .223-caliber Ruger. He told his mother that his father wanted to talk to her, and his mother walked outside. Appellant said he "calmly walked" to where his father was standing and shot him in the upper abdominal area. He then "calmly walked" around the car and shot his mother in the lower extremities. After she fell, appellant said he shot her again in the upper abdominal area. At trial, appellant recanted his confession. He testified that he went to the store at about 9 p.m. When he returned less than twenty minutes later, his parents were dead, and he saw two people running away. He said he immediately called his brother and 911. Appellant stated he told deputies this same version of events, but they would not believe him. After being questioned for hours, the deputies suggested if appellant confessed he could be placed in a mental hospital for "three to maybe five years at most," but if he continued to resist, he would get the "maximum sentence," which appellant construed as death. Appellant said he "fed them a lie" to get the deputies to leave him alone. After hearing the evidence, the jury convicted appellant of capital murder. In his first point of error, appellant contends the evidence is legally insufficient to establish beyond a reasonable doubt that he intentionally or knowing caused his parents' deaths. Within this point, he does not argue that he was not the shooter but instead that his voluntary statement "proves only that he shot his parents, NOT that he intended to cause their deaths" or "was aware that this would cause their death." When reviewing the legal sufficiency of the evidence, we view the evidence 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. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Chambers v. State, 866 S.W.2d 9, 15 (Tex.Crim.App. 1993). In this review, the trier of fact is the exclusive judge of the weight and credibility given to witness testimony. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). Intent and knowledge are fact questions for the jury and are almost always proven through evidence surrounding the crime. Childs v. State, 21 S.W.3d 631, 635 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). Intent to kill may be inferred from use of a deadly weapon, unless in the manner of its use it is reasonably apparent that death or serious bodily injury could not result. Id. Here, the evidence showed that appellant, angered that his father would not let him borrow his truck, went into the house, grabbed his rifle, and then tricked his mother into going outside. He "calmly walked" over to his father and shot him once in the chest. He then "calmly walked" around the car to his mother and shot her once in the abdomen. When she fell to the ground, he shot her again. From these facts, a reasonable jury could infer, beyond a reasonable doubt, that appellant had the specific intent to kill his elderly parents. At the very least, the jury could infer that appellant was aware that his conduct was reasonably certain to cause their deaths. We overrule the first point of error. In his second point of error, appellant complains the trial court erred in denying his motion to transfer venue because there "was so great a prejudice against [him] in the county that a fair and impartial trial could not be obtained." We review a trial court's ruling on a request for change of venue for abuse of discretion. McGinn v. State, 961 S.W.2d 161, 163 (Tex.Crim.App. 1998). We will not reverse so long as the trial court's ruling "is within the realm of reasonableness given the record before it." Id. To prevail on his request, a defendant "bears a heavy burden to prove the existence of such prejudice in the community that the likelihood of obtaining a fair and impartial jury trial is doubtful." Id. The publicity involved must be "so pervasive and prejudicial as to create a reasonable probability that an impartial jury cannot be impaneled even with the most careful voir dire." Id. At the pretrial hearing on the motion, appellant presented the affidavits of two Kaufman County residents, E.M. Jordan and Gil J. Altom, Jr. The substance of each affidavit was identical:
The reason(s) for the prejudice are: Because of the County-wide publicity, Movant feels that the potential veniremen have already formed an opinion of the guilt of the accused; and that this opinion will influence the verdict. Because of the magnitude of crime, and the population of the county, Movant feels that the crime has generated undue publicity so that most potential veniremen have some knowledge of the case, have formed an opinion of the guilt of the accused, and that this opinion will influence his verdict.Other than these witnesses' general assertions of "undue publicity," there was no evidence presented on how extensive any publicity was or from where the publicity came. In response to these affidavits, the State presented three witnesses from various parts of Kaufman County. Each testified he was not familiar with the case and had not heard anyone else discussing the case at their churches, businesses, or grocery stores. Each said he believed appellant could receive a fair trial. We conclude the trial court, based on the evidence before it, could reasonably deny the motion to transfer venue. We overrule the second point of error. In his third point of error, appellant complains the trial court erred in failing to declare the capital murder statute unconstitutional. In particular, he contends article 12.31(a) of the Texas Penal Code, which mandates an automatic life sentence in a capital felony case where the State does not seek the death penalty, denied him his right to a jury trial on punishment. He asserts the statute violates his rights under the fifth, sixth, and eighth amendments to the United States Constitution and article one, sections ten, thirteen, fifteen, and nineteen of the Texas Constitution. Other than to generally assert that he was denied the opportunity to present punishment evidence, appellant offers no argument, analysis, or legal authority (other than citations to the particular constitutional provision he contends was violated) to support his contention that the statute is unconstitutional. We therefore conclude this issue is inadequately briefed. See Wood v. State, 18 S.W.3d 642, 650 (Tex.Crim.App. 2000) (concluding appellant waived facial validity challenge to penal code provision by failing to support his argument with authority and failing to adequately develop his argument). We overrule the third point of error. In his fourth point of error, appellant complains the trial court erred in admitting a single photograph of the victims. The photograph was taken in December 1999, a year and a half before the Gordons' deaths. Appellant asserts the photograph was not relevant and was unfairly prejudicial. He does not, however, offer any explanation or analysis as to why a single photograph of the victims was not relevant or why it was unduly prejudicial. Consequently, this issue is inadequately briefed. See Tex. R. App. P. 38.1(h). Regardless, the State was not required to try this case in a vacuum. It could prove "facts that do not bear directly on the purely legal issues, but merely fill in the background of the narrative and give it interest, color, and lifelikeness." Mayes v. State, 816 S.W.2d 79, 87 (Tex.Crim.App. 1991). The photograph was relevant to prove the Gordons' appearances before their death. Moreover, the photograph was not excludable on the ground that its probative value was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403; see Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999) (setting out factors court considers in balancing probative value against unfair prejudice). The photograph allowed the jury to have a mental impression of the Gordons. The State asked only two questions about the photograph before offering it into evidence. It was the only photograph offered of the Gordons' depicting them before their deaths. Finally, having viewed the photograph, it is hard to imagine that it would affect the jury in a irrational way. We overrule the fourth point of error. In his fifth point of error, appellant complains the trial court erred in excluding from evidence statements that he made to his brother shortly after his parents were killed. The State objected to the statements as "self-serving declarations" inadmissible under Allridge v. State, 762 S.W.2d 146 (Tex.Crim. App. 1988), and the trial court sustained the objection. On appeal, appellant contends the statements were admissible as present sense impressions. Out-of-court statements offered at trial to prove the truth of the matter asserted are inadmissible hearsay unless the statements fall within a hearsay exception found in the statutes or rules of evidence. Martinez v. State, 993 S.W.2d 751, 758 (Tex.App.-El Paso 1999), rev'd on other grounds, 22 S.W.3d 504 (Tex.Crim.App. 2000). Even though the statement may be admissible as an exception to the hearsay rule, the proponent of the evidence has the burden to invoke the exception. Id. The statements at issue are clearly hearsay. Nevertheless, at the time the trial court ruled on the State's objection, appellant did not invoke the present sense impression or make any other argument as to why the statements would be admissible. Accordingly, we cannot conclude the trial court erred in excluding the evidence. We overrule the fifth point of error. In his sixth point of error, appellant argues the trial court erred in admitting State's exhibits seventeen and twenty-two, which were forensic reports on the rifle testing and hand swabs of appellant. He asserts the admission of the reports was cumulative of witness testimony on the same subject. However, other than make a general assertion that the reports constituted a "needless presentation of cumulative evidence," appellant does not present any analysis or develop any argument as to why the reports in this case were inadmissible on that basis. See Tex. R. App. P. 38.1(h). We therefore conclude this issue is inadequately briefed. In his seventh issue, appellant contends the trial court erred in failing to charge the jury on the lesser-included offense of murder. Appellant does not argue that any evidence raised this issue; rather, he asserts that the capital murder statute itself entitled him to such an instruction. Specifically, he relies on the following highlighted language:
(c) If the jury or, when authorized by law, the judge does not find beyond a reasonable doubt that the defendant is guilty of an offense under this section, he may be convicted of murder or any other lesser included offense.Tex. Pen. Code Ann. § 19.03(c) (Vernon 1994). Again, appellant's briefing of this issue is inadequate. Other than citing the penal code provision and one case for the general proposition that murder is a lesser included offense of capital murder, appellant makes no attempt to develop any legal argument, supported by legal authority, as to why the statute should be interpreted to allow a murder instruction in every capital murder case, even if the issue is not raised by the evidence. Accordingly, we conclude the point is waived. We affirm the trial court's judgment.