Opinion
No. 05-04-00858-CR
Opinion Filed July 7, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-52532-T. Affirm.
Before Justices WRIGHT, MOSELEY, and LANG.
MEMORANDUM OPINION
A jury convicted Leighton Joseph Smith for the murder of James Glenn and assessed punishment at nineteen years' confinement. Smith appeals. In four points of error, Smith asserts the evidence is legally and factually insufficient to support a conviction for murder; the trial court erred in admitting autopsy photographs of the victim; and his trial counsel rendered ineffective assistance of counsel by using an incorrect objection to the autopsy photographs. 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 detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm the trial court's judgment. In his first two points of error, Smith contends the evidence is legally and factually insufficient to support his conviction for murder. We apply the appropriate standards of review. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004) (factual sufficiency); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000) (factual sufficiency); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995) (legal sufficiency). We may not substantially intrude on the jury's role as sole judge of the weight and credibility given to witness testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 7. The jury is free to accept or reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). Furthermore, reconciling conflicting testimony is within the exclusive province of the jury. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). A person commits murder if he intentionally or knowingly causes the death of an individual or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Pen. Code Ann. § 19.02(b)(1), (2) (Vernon 2003 Supp. 2004-05). A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, directs, aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a)(2) (Vernon 2003). On June 7, 2003, Smith allegedly murdered Glenn. A witness testified she saw a maroon car with a white door pull into the gas station and park behind the victim's white truck. The passenger got out of the car, walked to the truck, stood at the window for a few seconds, and raised his arms. The witness then heard a gunshot. The passenger ran from the scene while the car drove away. The witness provided the police with a description of the car. Six days later she saw the car again and reported the license plates to police. Police identified the registered owner of the car as Smith. After setting up surveillance on the car, police stopped Smith while driving the vehicle and arrested him. While searching Smith's car and place of residence, police found a gun. A firearms expert testified there were sufficient individual markings on the bullet recovered from the victim to conclude the bullet had been fired from the gun recovered at Smith's place of residence. Smith gave a statement asserting that he agreed to give the shooter a ride to the gas station for fifty dollars. After the shooting, Smith retrieved the gun from where the shooter dropped it and drove away. Having considered all of the evidence, including the above evidence, in the light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that Smith murdered the victim or was a party to the crime. See Jackson, 443 U.S. at 319; Mason, 905 S.W.2d at 574. Further, reviewing all the evidence in a neutral light, we cannot say the evidence of guilt is so obviously weak as to undermine confidence in the fact finder's determination or that the proof of guilt is greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 10-11. We need not further detail the relevant evidence. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). We overrule Smith's first and second points of error. In his third point of error, Smith asserts the trial court erred in admitting autopsy photographs because their prejudicial value far outweighed their probative value under rule of evidence 403. See Tex. R. Evid. 403. The State contends trial counsel did not preserve the error for review as counsel cited the incorrect rule number in his objection. We disagree. Because of the context surrounding the objection and the objection was in response to the offering of autopsy photographs, the grounds of the objection under rule of evidence 403 were apparent to the trial court as well as counsel. See Tex.R.App.P. 33.1(a)(1)(A); Tex. R. Evid. 403(a)(1). Trial counsel preserved error for appellate review. We apply an abuse of discretion standard of review. Wyatt v. State, 23 S.W.3d 18, 29 (Tex.Crim.App. 2000). Generally autopsy photographs are admissible unless they depict mutilation of the victim caused by the autopsy process. Rayford v. State, 125 S.W.3d 521, 529 (Tex.Crim.App. 2003). We may consider several factors in conducting a rule 403 analysis of photographs, including, but not limited to, the number of exhibits offered, the gruesomeness of the photographs, the amount of detail, whether they are in color, whether they are close-up, and whether the body depicted is clothed or naked. Wyatt, 23 S.W.3d at 29. The complained-of exhibits were offered during the testimony of the medical examiner. Two exhibits are pre-autopsy photographs of the victim's body in a hospital gown, upper and lower torso. Two exhibits are pre-autopsy photographs of the victim's nude body, upper and lower torso. And two exhibits are photographs of the bullet wound, one close-up and one with the ear for reference. The photographs are not gruesome; they do not depict mutilation of the body caused by the autopsy. Although two photographs show the victim's nude body, the photographs are not vulgar or indecent so as to draw attention away from the purpose of the photograph. See Barnes v. State, 876 S.W.2d 316, 326 (Tex.Crim.App. 1994). The photographic exhibits here illustrated and clarified the medical examiner's description of the injuries, and the trial court did not abuse its discretion in admitting them. We overrule Smith's third point of error. In Smith's fourth point of error, he alleges ineffective assistance of trial counsel. Because this error was conditioned on a finding of waiver in the third point of error, we do not address it. We affirm the judgment of the trial court.