No. 04-05-00812-CR.
Delivered and Filed: January 10, 2007. Do Not Publish.
Appeal from the 186th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CR-3298A, Honorable Maria Teresa Herr, Judge Presiding.
Sitting: SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, JUSTICE, REBECCA SIMMONS, Justice.
SANDEE BRYAN MARION, Justice.
AFFIRMED A jury found defendant, Robert Elvis Hobday, guilty of murder and assessed punishment at life in prison. On appeal, defendant challenges his conviction in five issues. We affirm.
BACKGROUND
On January 26, 2004, Henry Binger was found stabbed to death in his apartment. The subsequent murder investigation lead police to focus on two suspects: defendant and his girlfriend, Sarah Shaughnessy. During the course of the investigation, Shaughnessy gave four written statements to the police. She did not admit any involvement in the murder until her third statement, in which she stated she was present when the murder occurred but that a neighbor, "Chico," actually committed the offense. In her final statement, she again admitted she was present when Binger was murdered, but this time she said it was defendant who committed the murder. Shaughnessy entered into a plea bargain agreement with the State. In exchange for a prison sentence of no more than twenty-five years, Shaughnessy agreed to plead guilty to Binger's murder and to testify truthfully at defendant's trial. Defendant gave the police two written statements. He confessed to the murder in his second statement. STANDARD OF REVIEW
Each of the five issues defendant raises on appeal involves the trial court's admission or exclusion of evidence. We review a trial court's evidentiary rulings under an abuse of discretion standard. See Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003). We will not reverse a trial court ruling that is within the zone of reasonable disagreement. Id. If we find an abuse of discretion, we may reverse based on the erroneous admission or exclusion of evidence only if the error affected defendant's substantial rights. See Tex. R. App. P. 44.2(b); Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002); De La O v. State, 127 S.W.3d 799, 804 (Tex.App.-San Antonio 2003, pet. ref'd). Error affects a substantial right when it has a substantial and injurious effect or influence in determining the jury's verdict. Johnson v. State, 43 S.W.3d 1, 4 (Tex.Crim.App. 2001). Error does not affect a substantial right if it does not influence the jury or has only a slight effect. Motilla, 78 S.W.3d at 355. In assessing the likelihood that the jury's decision was adversely affected by the error, we must consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, and the character of the alleged error and how it might be considered in connection with other evidence in the case. Id. The presence of overwhelming evidence supporting the conviction can be a factor in the evaluation of harmless error. Id. at 356-58. AUTOPSY PHOTOGRAPHS
Defendant first contends the trial court erred in overruling his objections to the admission of two autopsy photographs of the victim. Specifically, defendant asserts the photographs should have been excluded under Rule 403 of the Texas Rules of Evidence because their probative value was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Shuffield v. State, 189 S.W.3d 782, 787 (Tex.Crim.App. 2006). In a Rule 403 analysis, we assess: (1) how probative the evidence is; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent's need for the evidence. Id. In determining the prejudicial effect of photographs, courts may consider the number of photographs offered; their gruesomeness, detail, and size; whether they are in color; whether they are taken close-up; whether the person in the photograph is clothed; and any other factors unique to the situation. Id.; Long v. State, 823 S.W.2d 259, 270 (Tex.Crim.App. 1991). Autopsy photographs are generally admissible unless they depict mutilation caused by the autopsy itself. Salazar v. State, 38 S.W.3d 141, 151 (Tex.Crim.App. 2001). Defendant specifically challenges the admission of two autopsy photographs, exhibits 77 and 78. Exhibit 77 depicts the front of the victim's breast plate after it was removed from his body and shows stab wounds through the victim's front ribs. Exhibit 78 depicts the inside of the victim's chest after the organs were removed and shows stab wounds through the victim's back ribs. Both photographs have significant probative value because defendant's theory at trial was that Shaughnessy alone committed the murder, and the State used the photos to rebut that theory by attempting to show that a woman, such as Shaughnessy, was not capable of causing the internal injuries shown in the photographs. Specifically, a medical examiner testified to the significant amount of force necessary to cut through bone and used the photos to show that some of the stab wounds cut all the way through the victim's front and back ribs. Still, defendant argues the photos should have been excluded because they duplicated other photos and videotape of the victim. However, the probative value of the photos lies in their depiction of internal injuries that could only be inflicted with more than a significant amount of force. Defendant does not point to and the record does not reveal any other visual depictions that provide a similar illustration of the force used. Turning to the Rule 403 balancing test, we hold that the probative value of the photos is not substantially outweighed by the danger of unfair prejudice. Although the photos are graphic, color photos that depict internal body parts separated from the rest of the victim's body, these factors alone do not require exclusion. See Salazar, 38 S.W.3d at 151, 153 (affirming admission of color slides showing brain removed from cranial cavity, victim's lung removed from body, and victim's open and dissected heart removed from body); Legate v. State, 52 S.W.3d 797, 806, 807 (Tex.App.-San Antonio 2001, pet. ref'd) (affirming admission of color photos depicting victim's heart removed from body). The removal of internal body parts to portray the extent of injury to the body part itself is not considered mutilation caused by the autopsy because there is no danger that the jury would mistakenly attribute the removal of body parts to the defendant. Salazar, 38 S.W.3d at 151-52. Because the photographs at issue have significant probative value and are not unnecessarily gruesome, we hold that the danger of unfair prejudice does not outweigh their probative value. Thus, the trial court did not abuse its discretion in admitting the photographs. BOLSTERING
In his second and third issues, defendant contends the trial court erred in allowing improper bolstering of Shaughnessy's testimony during her direct and re-direct examination. With respect to Shaughnessy's direct examination, defendant asserts the trial court erred in allowing a series of questions in which the prosecutor asked Shaughnessy to describe which portions of her third written statement to police were truthful and which were not. With respect to Shaughnessy's re-direct examination, defendant challenges a similar exchange in which the prosecutor asked Shaughnessy to identify the truthful and untruthful parts of her second, third, and fourth written statements. Defendant objected to both lines of questioning on the basis that they improperly bolstered Shaughnessy's earlier testimony describing the circumstances of the murder. We need not decide whether the challenged lines of questioning were improper bolstering because even if we assume the trial court erred in admitting the testimony, we conclude the error was harmless. The record reveals significant evidence of defendant's guilt, with the most damaging of that evidence being his signed confession admitting he was the only person who stabbed Binger. His confession was also consistent with Shaughnessy's fourth statement and trial testimony stating that defendant alone stabbed Binger. In addition, the medical examiner testified that the stab wounds cutting through the victim's front and back ribs necessitated more than a significant amount of force, implying that a woman would not likely be capable of the murder. In considering the character of the alleged error, we find that the challenged testimony added very little, if anything, to the evidence of defendant's guilt. Shaughnessy had already marked the truthful portions of her written statements with a yellow highlighter, and all four highlighted statements were admitted into evidence. Thus, her testimony as to what parts of her written statements were truthful did nothing more than identify the highlighted portions of the statements and reinforce her claim that those portions were true. The record shows that defendant's attorney conducted an extensive cross-examination and re-cross-examination of Shaughnessy, including successfully attacking the truthfulness of even some of the highlighted portions of her statements. Given the character of the alleged error and the strength of the other evidence of defendant's guilt, we conclude that any error in the admission of the challenged testimony was harmless. PRIOR CONSISTENT STATEMENT
In his fourth issue, defendant argues the trial court erred by allowing Shaughnessy's mother to testify about a prior consistent statement made by Shaughnessy. A prior consistent statement of a witness is admissible if the statement is consistent with the declarant's testimony, offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, and made before the motive to fabricate arose. See Tex. R. Evid. 801(e)(1)(B); Dowthitt v. State, 931 S.W.2d 244, 263 (Tex.Crim.App. 1996). During cross-examination, defendant's attorney questioned Shaughnessy about her plea bargain agreement with the State. The agreement required that Shaughnessy plead guilty to Binger's murder and testify truthfully at defendant's trial in exchange for a maximum prison sentence of twenty-five years. Defendant's attorney asked Shaughnessy: Q. And you really want 25 years, don't you? A. Yes, sir. Q. Instead of 99? A. Yes, sir. In rebuttal, the State sought to introduce testimony from Shaughnessy's mother that on the day of Shaughnessy's arrest, which was almost a year before Shaughnessy entered into a plea agreement, Shaughnessy told her mother that defendant stabbed Binger. Because defendant implied that Shaughnessy was lying to secure a favorable plea bargain, Shaughnessy's statement to her mother before the plea agreement is admissible as a prior consistent statement. Defendant nevertheless argues that the statement is inadmissible because Shaughnessy's motive to fabricate arose on the day of the murder. However, it is not necessary that a prior consistent statement be made before all motives to fabricate arose. Dowthitt, 931 S.W.2d at 264. Rule 801(e)(1)(B) requires only that the witness's prior consistent statement be offered to rebut an express or implied charge against her of recent fabrication or improper influence or motive. See Tex. R. Evid. 801(e)(1)(B); Dowthitt, 931 S.W.2d at 264. Here, defendant raised an implied charge that Shaughnessy fabricated her testimony and had a motive to fabricate her testimony as a result of the plea bargain. Shaughnessy's consistent statement made before she entered into the plea agreement is admissible to rebut that charge. Defendant's fourth issue is overruled. EXCLUDED TESTIMONY
In his final issue, defendant contends the trial court erred in excluding a portion of the lead homicide detective's testimony in which defendant sought to establish that the detective initially focused his investigation on Shaughnessy by tracking Binger's cell phone. During the detective's cross-examination, defendant's attorney asked the detective if he had spoken with Binger's daughter, and the detective answered that he had. Defendant's attorney then attempted to ask the detective what he learned from the conversation with Binger's daughter, and the State objected, arguing that the question called for hearsay. Defendant's attorney explained that he wanted to show why defendant and Shaughnessy became suspects. He stated that he wanted to show why the police spoke with an employee of a store where Binger's cell phone was found, and that he also wanted to establish that the police then learned from the employee that the phone "had been left by someone and picked up by someone." On appeal, defendant argues that the exclusion of the testimony constitutes reversible error because it prevented defendant from demonstrating that the police investigation initially focused on Shaughnessy, not defendant. Defendant argues that showing that the initial focus was on Shaughnessy was vital to his defensive theory that Shaughnessy alone committed the murder. However, in reviewing the record as a whole, we conclude that even if the trial court erred in excluding the testimony, the error was harmless because the record reveals ample other evidence that the police investigation initially focused on Shaughnessy. See Sturgeon v. State, 106 S.W.3d 81, 88 (Tex.Crim.App. 2003) (stating that "[t]he exclusion or denial of irrelevant or cumulative testimony does not amount to reversible error"). The two homicide detectives first to arrive at the murder scene both testified that the early stages of their investigation led them to Shaughnessy, and neither testified about any initial interest in defendant. The record shows that defendant was not even interviewed until after Shaughnessy gave her third statement to police and was not arrested until after Shaughnessy had already been arrested and had given her fourth statement. Thus, the admitted evidence leaves no doubt that the police investigation initially focused on Shaughnessy and only later turned to defendant. Because the purpose of the excluded testimony was to establish a fact that had already been established through several witnesses, we conclude that any error in the exclusion of the testimony was harmless. CONCLUSION
We overrule defendant's issues on appeal and affirm the trial court's judgment.