Webb v. State

Full title: CLAYTON EUGENE WEBB, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Apr 1, 2003

No. 05-01-01768-CR (Tex. App. Apr. 1, 2003)

Opinion

No. 05-01-01768-CR.

Opinion Issued April 1, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.

Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F99-71770-UH. Affirmed.

Before Justices MORRIS, WHITTINGTON, and FRANCIS.

OPINION

Opinion By Justice WHITTINGTON

Clayton Eugene Webb appeals his conviction for murder. After finding appellant guilty as charged and that he used or exhibited a deadly weapon during commission of the offense, the jury assessed punishment at life confinement and a $10,000 fine. In five points of error, appellant contends the evidence is legally and factually insufficient to support his conviction and the trial judge erred in admitting certain evidence. We affirm the trial court's judgment.

Background

After dating appellant for approximately one month, Shannon Heberling broke up with him. Approximately one week later, Heberling and a friend, Jonathan Hall, drove to a Texaco station at the corner of Skillman and Forest Lane in Dallas. Shortly thereafter, their friends, Sheila Dugger and Gene Pailin arrived and parked nearby. While the four were talking, appellant and his cousin, Robert Jordan, drove up in a white Cadillac and parked in the parking lot. Appellant got out of his car holding a gun behind his back. He initially threatened Heberling and Hall. He then turned to Pailin who was in Dugger's car and shot him several times. Appellant was subsequently arrested and charged with Pailin's murder. After finding him guilty, the jury assessed life confinement. This appeal followed.

Legal and Factual Sufficiency Of The Evidence

In his first and second points, appellant claims the evidence is legally and factually insufficient to support the implicit finding that appellant did not act in self defense. Under these issues, appellant claims there was no evidence to refute appellant's claim of self defense and that the overwhelming evidence does not show appellant was guilty of murder. We disagree. When an appellant challenges the legal sufficiency of the rejection of a defense, we examine all the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact would have found the essential elements of murder beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). When we review a factual sufficiency challenge of the jury's verdict rejecting a defense, we review all of the evidence in a neutral light and ask 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, No. 1168-01, slip op. at 8, 2003 WL 246065, *2 (Tex.Crim. App. Feb. 5, 2003); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000) . The use of deadly force is justified in self defense only when three conditions are present: (i) the defendant would have been justified in using force under section 9.31 of the penal code `self defense'; (ii) a reasonable person in the defendant's position would not have retreated; and (iii) the use of deadly force was reasonably believed to be immediately necessary to protect the defendant against another's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32 (Vernon 1994); see Riddle v. State, 888 S.W.2d 1, 6 (Tex.Crim.App. 1994). In this case, the jury was instructed to acquit appellant on the grounds of self defense if:

you believe from the evidence beyond a reasonable doubt that . . . [appellant] did shoot [Pailin] with a firearm, a deadly weapon, as alleged in the indictment, but you further believe from the evidence, that at the time he did so, [appellant] reasonably believed that [Pailin] was using or attempting to use unlawful deadly force against him and [appellant] reasonably believed that the use of force and the degree of force used were immediately necessary to protect himself against [Pailin's] use or attempted use of deadly force, and that a reasonable person in [appellant's] situation would not have retreated . . .

The jury was also instructed that if there was a reasonable doubt as to whether or not appellant was acting in self defense, it should "give [appellant] the benefit of that doubt" and find him not guilty. During trial, Heberling testified she dated appellant for about one month. After she broke up with him, appellant and Jordan followed her to work one day but she did not speak with either man. On July 10, 1999, Dugger called Heberling. The two women decided to meet at the Texaco station. Heberling brought her friend, Hall, and Dugger arrived with Pailin. Recognizing Pailin, Hall got out of Heberling's car and walked toward Dugger's car. In the meantime, Dugger exited her car and walked over to Heberling's car where Heberling was seated in the driver's seat. Appellant and Jordan drove up in appellant's white Cadillac. Appellant got out of the car, walked over to Dugger, and pushed Dugger to the ground. He then approached Heberling, put a gun to her head, and pushed her down in the driver's seat. She said, "No, Clay, no." Heberling testified the next thing she heard was Jordan screaming at appellant who then turned and started shooting at Dugger's car. Heberling covered her face with her hands. Dugger testified she and Pailin were dating at the time of his death. She and Heberling had arranged to meet at the Texaco station on the evening of July 10, 1999. When she and Pailin arrived, Heberling was already there. Dugger walked over to Heberling's car. Hall walked over to Dugger's car and spoke to Pailin. The two men knew each other. About five minutes later, appellant drove up. He and Jordan got out and began walking toward Heberling. As appellant approached Heberling, Dugger noticed he had a gun behind his back. Pailin got in Dugger's car. He put the car in reverse and backed it out of the parking space, hitting appellant's car. Appellant turned and shot at Dugger's car. He kept shooting, and Dugger ran across the street to call 911. When she returned, she tried to get in the car but the doors were locked. Someone helped her break a window, and she sat in the car with Pailin. During cross-examination, Dugger stated appellant did not push her down. He walked toward Heberling's car but she did not know if he touched Heberling because as he neared the car, Pailin got in Dugger's car. Dugger was watching both Pailin and appellant. According to Dugger, appellant shot at her car. He then began walking toward the car as he was firing. When Dugger ran to call 911, the shots had stopped. Once she got across the street, she heard one last shot. Dugger testified the car was moving away from appellant when he began shooting and that appellant walked toward the car as he fired shots. Hall testified he and the other three people were in the parking lot talking when appellant drove up. Hall felt something was not right and told the others they needed to get out of there. Appellant exited his car and walked toward Heberling's car, holding his right hand behind his back. Appellant's passenger told appellant to "shoot that nigger." Appellant began to approach Hall. The passenger said, "[N]o, not him, the other nigger." According to Hall, that is when appellant turned on Pailin. Hall "took off and starting running," and heard gunshots. In contrast, appellant testified he and Heberling were dating when he went by her apartment one day. Although Heberling opened the door, a man known as "Blue" was in the apartment and "pushed her out of the way." He walked outside, and the two men started talking and walking. As they walked around a corner, Blue swung at appellant, hitting him in the jaw with "a watch or brass knuckles or something in his hand." Appellant stepped back and hit Blue who then ran off. Appellant subsequently went to the hospital where he had a cast put on his right hand. On July 10th, appellant was leaving for work when he saw Blue in front of his house. Appellant drove off, and Blue followed him. Appellant finally lost Blue. He was concerned Blue was after him so he went to an ATM, got money, and went to the pawn shop to get his gun for protection. Later that night, he saw Heberling's car in a parking lot so he pulled in and parked his car. He got out of the car to talk to Heberling. He said he wanted to ask her why she told Blue where appellant lived. His right hand was still in a cast, and he carried his gun in his left pocket. As he approached Heberling's car, he saw a guy get into a car and bend over "like he was reaching for a gun." Appellant reached for his gun. According to appellant, the other guy turned on the headlights and began backing his car toward appellant. He was driving fast. Appellant "heard the engine rev up" and had to jump out of the way. Appellant began shooting at the car because the driver had come past him and hit appellant's car. Appellant testified he thought the driver was trying to run over him and he was scared. He also testified the driver was using deadly force and he feared for his life. Although he is right-handed, he "fired a couple of shots" using his left hand. Appellant stated he was running away from the car when it hit him and "kicked" him about two feet. Because the car was still coming at him, he shot at the car. He then jumped in his car and went home. Viewed in the light most favorable to the judgment, the evidence shows appellant drove into the parking lot area where Heberling, Hall, Dugger, and Pailin were talking. He got out of his car with a gun in his right hand and approached Heberling and Dugger, threatening Heberling. Pailin got in Dugger's car and, putting it in reverse, backed the car away, hitting appellant's car. Appellant then fired several shots at Pailin who died. From these facts, we conclude a rational jury could find the essential elements of murder beyond a reasonable doubt and could have found against appellant on the self-defense issue beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914. Therefore, we conclude the evidence is legally sufficient to support appellant's conviction for murder. We overrule appellant's first point of error. Furthermore, giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude, after reviewing the evidence in this case, that the State's evidence taken alone is too weak to support the finding or that the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. See Zuliani, slip op. at 8; Johnson, 23 S.W.3d at 11; Scott v. State, 934 S.W.2d 396, 398-99 (Tex.App.-Dallas 1996, no pet.). Therefore, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's second issue.

Admission of Evidence

In his third and fifth points of error, appellant contends the trial judge erred in admitting crime scene photographs and autopsy photographs. We review a trial judge's decision to admit evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). Absent an abuse of discretion, we do not disturb a trial judge's ruling on the admissibility of evidence. See Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994).

Autopsy Photographs

In his fifth point of error, appellant claims the trial judge erred in admitting autopsy photographs because "the gruesome and horrible details contained in the photographs inflamed the jurors['] emotions which outweighed any probative value." During trial, appellant objected to the admission of the photographs because "they [were] not relevant." Because appellant's complaint on appeal does not comport with his objection below, we conclude appellant failed to preserve this issue for our review. Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002) (point of error on appeal must comport with objection made at trial); Taylor v. State, 55 S.W.3d 584, 585 (Tex. Crim App. 2001) (because appellant's trial objection did not comport with issue raised on appeal, he did not preserve error), cert. denied, 534 U.S. 1154 (2002).

Crime Scene Photographs

In his third point of error, appellant claims the trial judge erred in admitting crime scene photographs because they were irrelevant and the prejudicial value of the photographs outweighed any probative value. We disagree. All relevant evidence is admissible unless "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403; see Long v. State, 823 S.W.2d 259, 271 (Tex.Crim.App. 1991). Rule 403 favors admitting relevant evidence and presumes that relevant evidence will be more probative than prejudicial. Long, 823 S.W.2d at 271. If testimony about the scene depicted in the photographs is admissible, the photographed subject is also admissible. Hicks v. State, 860 S.W.2d 419, 426 (Tex.Crim.App. 1993), overruled on other grounds by Rosales v. State, 4 S.W.3d 228, 230 (Tex.Crim.App. 1999). The trial court may consider many factors when determining whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice. These factors include: the number of offered photographs, their gruesomeness, size, and detail, whether they are black and white or in color, whether they are close-ups, whether the body is depicted naked or clothed, the availability of other means of proof, and other circumstances unique to the individual case. Rojas v. State, 986 S.W.2d 241, 249 (Tex.Crim.App. 1998); Long, 823 S.W.2d at 272. Although appellant complains the photographs did not "solve any issue in the case" but were presented solely "to be highly inflammatory and with the intent to deny Appellant a fair trial," we disagree. The record before this Court contains black and white photostatic copies of the photographs, from which we are unable to determine the size of the actual photographs or whether they appeared in color. Pailin is clothed in the three photographs and is lying outside the car.¹ Although Pailin was shot while in the car, the photographs showing him inside the car do not depict the extent of damage done by appellant's actions. We agree the complained-of photographs show a lot of blood, as would photographs of most violent crime scenes. However, a gory and gruesome crime scene does not make photographs of that scene more prejudicial than probative. Shavers v. State, 881 S.W.2d 67, 77 (Tex.App.-Dallas 1994, no pet.). Here, the photographs show the condition of Pailin's body at the scene, shortly after the shooting; as such, they were the subject of trial testimony. See Hicks, 860 S.W.2d at 426. After reviewing these photographs, we conclude they are not so horrifying that any juror of normal sensitivity would have difficulty rationally deciding the critical issues after viewing them. See Fuller v. State, 829 S.W.2d 191, 206 (Tex.Crim.App. 1992). Thus, their probative value is not outweighed by their possible prejudicial effect. We cannot conclude the trial judge abused her discretion by admitting the photographs.

Hearsay

In his final point of error, appellant contends the trial judge erred in admitting certain hearsay testimony over his objection. Appellant claims the statement at issue "goes to the very issue being tried" in this case and its erroneous admission harmed appellant. During cross-examination, appellant's counsel asked Heberling about a friend of hers who went by the nickname "Blue." Counsel asked whether appellant and Blue got into a fight in Heberling's presence and if she knew what it was about. Heberling testified that appellant came to her apartment one day when Blue was present. According to Heberling, she and Blue walked outside with appellant where the two men "started having words." Blue told Heberling to go inside which she did. When she looked out, they were "in each other's face;" later, they were trying to open the truck of appellant's car. During redirect, the State questioned Heberling further on appellant's interaction with Blue. She testified when Blue returned to her apartment, he was upset, angry, and excited. When the State asked what Blue told Heberling upon his return, appellant objected to the question on the ground that it elicited a hearsay response. The State argued any statement would be admissible as an excited utterance, and the trial judge overruled the objection. Heberling then testified that upon his return, Blue told her appellant had stolen his watch, chain, and money, and tried to put him in the trunk of his car. Although appellant assigns the ruling as error and claims the admission of Blue's story was highly prejudicial, we disagree. We note that appellant initially solicited the evidence regarding Blue and the altercation with appellant. The State only developed the testimony more fully on redirect. Nevertheless, assuming without deciding the statement was inadmissible, we fail to see how Blue's statement harmed appellant, and appellant does not attempt to explain how the testimony harmed him. Rather, appellant argues the "prohibited hearsay testimony . . . effected [sic] the substantial right of Appellant to receive a fair trial at which the evidence is presented according to the Rules of Evidence. The error; [sic] therefore is not harmless and should not be disregarded." This statement, without more, is insufficient to apprise this Court of appellant's complaint. See Tex. R. App. P. 38.1(g), (h); see also Oldham v. State, 5 S.W.3d 840, 847 (Tex.App.-Houston [14th Dist.] 1999, pet ref'd) (holding that appellant failed to preserve error regarding excluded evidence when she failed to develop in appellate brief any argument addressing why excluded evidence was necessary or admissible). The issue in this case is whether appellant, who admits shooting Pailin, shot him in self defense. Appellant did not claim he thought Pailin was Blue, nor did he claim he saw Blue in the parking lot. Although the testimony might explain why appellant was carrying a gun on the evening of Pailin's death, it does not address appellant's interaction with Pailin. Rather, the evidence shows Pailin got in Dugger's car and backed away from appellant as though attempting to flee the scene. Appellant shot at the car and walked toward the car while shooting at Pailin. After reviewing the testimony in question, we cannot conclude its admission affected appellant's substantial rights; thus, the admission of this evidence was harmless. See Tex. R. App. P. 44.2(b). We overrule appellant's final point of error. We affirm the trial court's judgment.