No. 05-03-00273-CR.
Opinion Filed March 30, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-53692-JS. Affirm.
Before Justices MORRIS, FITZGERALD, and FRANCIS.
Opinion By Justice FITZGERALD.
Sergio Moraida, Jr. appeals his conviction for murder. After finding appellant guilty, the jury assessed appellant's punishment at life imprisonment and a $10,000 fine. In two points of error, appellant contends the trial court erred by overruling appellant's objection to an autopsy photograph and that he received ineffective assistance of counsel. We affirm the trial court's judgment. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in any detail. Further, because all dispositive issues are settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.4.
AUTOPSY PHOTOGRAPH
In his first point of error, appellant contends the trial court erred in admitting State's exhibit 10, an autopsy photograph, because its probative value was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. The admissibility of a photograph is within the sound discretion of the trial court. Hayes v. State, 85 S.W.3d 809, 815 (Tex.Crim. App. 2002). The trial court's decision will not be disturbed on appeal unless it falls outside the zone of reasonable disagreement. Id. In determining whether a photograph's probative value is substantially outweighed by the danger of unfair prejudice, the court of criminal appeals recommends consideration of the following nonexclusive factors: the number of exhibits offered, their gruesomeness, their detail, their size, whether they are in color or in black and white, whether they are close-up and whether the body depicted is clothed or naked. Id. Autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself. Changes rendered by the autopsy process are of minor significance if the disturbing nature of the photograph is due primarily to the injuries caused by the appellant. Id. The twenty-seven autopsy photographs depict thirteen wounds from seven gunshots. The exhibits appear to be eight-by-ten-inch photographs. The appellate record contains black-and-white photocopies of the exhibits, and the record does not disclose whether the original exhibits were in color. Except for State's exhibit 69, the body is naked, but the genitalia are not depicted. Except for State's exhibit 69, no blood is visible, and the photographs depict the many gunshot wounds inflicted on the complainant. The exhibits do not show any mutilation caused by the autopsy. One of the wounds was in the center of the complainant's forehead. State's exhibit 10 is a close-up photograph of the complainant's face and neck. The complainant's eyes and mouth are closed. The exhibit clearly shows the gunshot wound and the stippling on appellant's forehead. Appellant argues State's exhibit 10 was admissible for record purposes only to prove the corpus delicti, and the exhibit should not have been admitted for all purposes. Appellant provides no authority in support of this argument. Having reviewed the exhibit, we conclude the danger of unfair prejudice from the exhibit was small and did not substantially outweigh the exhibit's probative value. We conclude the trial court did not err in admitting the exhibit for all purposes. We overrule appellant's first point of error. INEFFECTIVE ASSISTANCE OF COUNSEL
In his second point of error, appellant contends he lacked effective assistance of counsel at trial because his counsel: (a) failed to object to the State's jury argument commenting on appellant's failure to testify; and (b) elicited prejudicial testimony when cross-examining a witness. To prevail on a claim of ineffectiveness of counsel at trial, an appellant must establish: (1) trial counsel's representation fell below an objective standard of reasonableness in that counsel made errors so serious that counsel was not functioning as the reasonably effective counsel guaranteed by the state and federal constitutions; and (2) a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (1986). When the record contains no evidence of the reasoning behind trial counsel's actions, we cannot conclude that counsel's performance was deficient. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim. App. 2003); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim. App. 1994). Appellant filed a motion for new trial, but the motion did not assert ineffective assistance of counsel. The record does not contain trial counsel's explanation for his failure to object to the jury argument or his eliciting prejudicial testimony from the witness. Accordingly, we cannot conclude counsel's performance was deficient. We overrule appellant's second point of error. We affirm the trial court's judgment.