Opinion
No. 13-07-00288-CR
Opinion delivered and filed April 30, 2009. DO NOT PUBLISH. See Tex. R. App. P. 47.2(b).
On appeal from the 319th District Court of Nueces County, Texas.
Before Justices YAÑEZ, RODRIGUEZ, and BENAVIDES.
MEMORANDUM OPINION
Appellant, Francis Wilson, appeals his murder conviction. See Tex. Penal Code Ann. § 19.02 (Vernon 2003). The trial court sentenced appellant to life imprisonment. See id. § 12.32 (Vernon 2003). Appellant raises three issues on appeal: (1) the trial court abused its discretion in admitting prejudicial photographs; (2) the trial court abused its discretion in admitting a witness's recorded recollections; and (3) the evidence is insufficient to support the verdict. We affirm.
I. Factual and Procedural History
On June 7, 1998, James Garrett and Bill Livingston, patrolmen with the Corpus Christi Police Department at the time, were "working Weed and Seed" patrol. At approximately 11:30 p.m., they observed "a black male standing outside of a station wagon, screaming at a white male who was seated behind the wheel of a station wagon" about three hundred yards from the Ranch Motel. The officers separated the two individuals and learned that Wilson was the black male and that William Gray was the white male. Gray was upset because Beverly De Los Santos, his girlfriend, had taken money from room 115, their hotel room at the Ranch Motel, to buy alcohol for Wilson. While the officers had the two men separated, Wilson and Gray continued periodically screaming at each other, and when Garrett told Gray to leave, Gray said to Wilson that "he would settle it later without the police." After breaking up the fight, Garrett and Livingston continued to patrol the area and would periodically see appellant or De Los Santos until the officers' shift ended at approximately 1:30 a.m. on June 8, 1998. On June 8, 1998, Sulma Bhakta, a maid at her parents' motel, the Ranch Motel, noticed that the carport assigned to room 115 was empty. Using her master key, she entered room 115, which was registered to Gray, and found his body lying underneath a refrigerator that was face-down on top of him. The room was also "in a bit of a disarray." She called 911 and waited for the police to arrive. On June 8, 1998, Frank Perez, then a patrolman with the Corpus Christi Police Department, arrived at the Ranch Motel and was directed to room 115 by Prehlad "Phillip" Bhakta, the motel's owner. Perez went to room 115 where he found the door ajar, and, upon entering the room, he noticed that there "appeared to have been a scuffle" because "[i]t was ransacked." Perez confirmed that Gray was dead. On June 8, 1998, at about 10:50 a.m., Sergeant Ron Zirbes was dispatched to the Ranch Motel. He checked Gray's vital signs and determined that Gray was dead. Zirbes spoke with Dora Vela, a passerby who had seen two men fighting in room 115. Zirbes also contacted Phillip Bhakta, who confirmed that both Gray and Beverly De Los Santos were staying in room 115. Vela testified that, while walking between the Ranch Motel and the La Siesta Motel, she heard what sounded like a fight. She went around the Ranch Motel and saw "a black guy" and a white "guy with a beard" fighting in room 115. Vela stated that the "black guy" was hitting the "white guy," sometimes even while the "white guy" was on the floor, and he kept on hitting the "white guy" even after she told him to stop. Vela then ran to Phillip Bhakta and told him to call the police because of the fight. When she finished speaking to Phillip Bhakta, Vela saw the man later identified as Wilson walking away from the Ranch Motel. She was unable to get back into room 115 because the door locked automatically when it was closed. Vela signed a written statement to the police stating what she had seen and heard at the scene. Vela also identified appellant in a photo lineup as the "black guy" she saw fighting with the "white guy" in room 115. John Thomas Hornsby, the supervisor of the forensics department of the Corpus Christi Police Department, testified concerning blood splatters and other topics. Hornsby noted that, based on his blood-splatter analysis, some of the blood stains in room 115 occurred while Gray was in a kneeling or "slouched over" posture. Hornsby also demonstrated how the refrigerator was placed on top of Gray, based on a fingerprint on the right edge of the freezer door and a blood stain on the right side of the refrigerator. Hornsby agreed that the blood splatters in room 115 were consistent with "some sort of blunt force trauma" applied to Gray. Ray Fernandez, M.D., a medical examiner in Nueces County, Texas, testified regarding the cause of Gray's death. He stated that Gray died from "cardiac dysrhythmia" due to blunt trauma to the head and "asphyxia component-type death" due to the refrigerator being placed on top of Gray. Yezenia Banuelos, a crime scene technician with the Corpus Christi Police Department, testified that she was dispatched to room 115 at the Ranch Motel. Upon entering the room, she noticed that Gray's body was still lying underneath the refrigerator. After photographing the scene, Banuelos processed the area for fingerprints. She also collected an empty soda can on a table near the entrance to room 115. Katrina Aggelopoulos, a latent fingerprint examiner with the Corpus Christi Police Department, evaluated the prints taken from room 115. There were forty-nine fingerprint cards taken from room 115, and twenty-seven were not suitable for comparison purposes. Of the forty-nine cards, she was able to match eleven prints to individuals. One of Wilson's fingerprints was found on "the right edge of the freezer door" of the refrigerator found on top of Gray. Additionally, Aggelopoulos found another print belonging to Wilson on the soda can. There were eleven prints she was not able to match to individuals, which could have belonged to as many as eleven different people. On June 11, 1998, Wilson was indicted and charged with murder. He was reindicted on October 6, 2006, for murder and on March 29, 2007, for murder and as a habitual felony offender. See id.; id. § 12.42 (Vernon Supp. 2008). On April 18, 2007, the jury found appellant guilty, and he was sentenced by the trial court to life imprisonment. This appeal ensued.II. Photographs
In his first issue on appeal, Wilson argues that the trial court abused its discretion when it admitted into evidence State's Exhibit 26, a post-mortem photograph of Gray. The photograph showed Gray's bloodied face, his broken dentures, and a piece of his beard that was not attached to his face. Wilson asserts that the photograph's probative value is outweighed by its prejudicial effects. See Tex. R. Evid. 403; Shuffield v. State, 189 S.W.3d 782, 787 (Tex.Crim.App. 2006) (noting that Texas Rule of Evidence 403 provides that relevant evidence is admissible unless its probative value is outweighed by the danger of unfair prejudice).A. Standard of Review
"The admissibility of a photograph is within the sound discretion of the trial judge." Shuffield, 189 S.W.3d at 786. Therefore, following an abuse of discretion standard, we should "do more than decide whether the trial judge did in fact conduct the required balancing between probative and prejudicial values; the trial court's determination must be reasonable in view of all relevant facts." Id. at 787 (internal quotations omitted).B. Applicable Law
Rule of evidence 403 provides that relevant evidence, which is usually admissible, may be made inadmissible when its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. The rule 403 balancing test requires the evaluation of the following non-exclusive factors: "(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." Shuffield, 189 S.W.3d at 787 (citing Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex.Crim.App. 1991) (op. on reh'g)). Specifically in the context of photographic evidence, these elements have been encapsulated into the following considerations: the number of photographs, the size of the photograph, whether it is in color or black and white, the detail shown in the photograph, whether the photograph is gruesome, whether the body is naked or clothed, and whether the body has been altered since the crime in some way that might enhance the gruesomeness of the photograph to the appellant's detriment Id.; see Sonnier v. State, 913 S.W.2d 511, 518 (Tex.Crim.App. 1995). "Generally, photographs are admissible if verbal testimony about the matters depicted in the photographs would be admissible and their probative value is not substantially outweighed by any of the Rule 403 counter-factors." Threadgill v. State, 146 S.W.3d 654, 671 (Tex.Crim.App. 2004).C. Discussion
First, the State argues that Wilson failed to preserve his rule 403 objection because his "complaint on appeal does not comport with his objection to the trial court" and because he did not object to the same evidence when it was offered through other sources. See Tex. R. App. P. 33.1(a)(1); Moore v. State, 999 S.W.2d 385, 402 (Tex.Crim.App. 1999). "[A] specific objection is required to inform the trial judge of the basis of the objection and afford him the opportunity to rule on it." Neal v. State, 150 S.W.3d 169, 178 (Tex.Crim.App. 2004) (quoting Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App. 1977)). [A]ll a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it. Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992). Here, when State's Exhibit 26 was offered, Wilson's counsel objected, stating, "Your honor, we object to Number 26, as it's highly inflammatory. Its evidentiary value is outweighed by the depiction of the scene." We believe that the objection has the requisite specificity to "inform the trial judge of the basis of the objection and afford him the opportunity to rule on it." Neal, 150 S.W.3d at 178. Additionally, we do not believe that the same evidence as that contained in State's Exhibit 26 was admitted elsewhere without objection. Prior to the admission of State's Exhibit 26, without objection by Wilson, a witness gave a general description of what the photograph depicts. See Threadgill, 146 S.W.3d at 671. Subsequent to the admission of State's Exhibit 26, three more photos were admitted showing some of the same injuries depicted in State's Exhibit 26. However, those three photos do not provide the same view of Gray, nor do they depict his injuries in the same manner as State's Exhibit 26. Thus, the same evidence was not admitted without objection. See Massey v. State, 933 S.W.2d 141, 150 (Tex.Crim.App. 1996) (noting that the same evidence was admitted without objection when the defendant objected to the admission of one record containing an allegedly improperly obtained journal, but did not object to the admission of the journal itself). Accordingly, we hold that Wilson preserved this issue for appeal. Wilson contends that the trial court erred in admitting State's Exhibit 26 because its probative value was outweighed by the potential for the picture to unfairly prejudice the jurors. State's Exhibit 26 depicts Gray's bloodied face, his dentures (which had fallen out of his mouth), and a piece of his beard that had been detached from his face. This approximately 3.5-inch by 5-inch color photograph was one of three frontal pictures of Gray's face admitted into evidence. See Shuffield, 189 S.W.3d at 787. It was the only picture showing a complete view of Gray's face, and Gray was fully clothed. See id. Because Exhibit 26 showed was the most comprehensive picture of Gray's blunt-trauma injuries, its probative value was high. See id. at 788. Even though it is probative, the picture is gruesome, meaning that it is "disagreeable to look at;" however, "it depict[s] nothing more than the reality of the brutal crime committed." Sonnier, 913 S.W.2d at 519. "A trial court does not err merely because it admits into evidence photographs which are gruesome." Id.; see Harrington v. State, 547 S.W.2d 621, 625-26 (Tex.Cr.App. 1977). We overrule Wilson's first issue and hold that the trial court did not err in admitting State's Exhibit 26.II. Recorded Recollections
In his second and third issues, Wilson asserts that the trial court erred in allowing a witness's recorded statement to be read to the jury and in admitting a photo lineup. The trial court ruled that both were admissible, and Wilson argues that neither was admissible under Texas Rule of Evidence 803(5), the past recollection recorded exception to the hearsay rule. See Tex. R. Evid. 803(5). We hold that the trial court did not abuse its discretion.A. Standard of Review
"The admissibility of hearsay under the past recollection recorded exception remains within the sound discretion of the trial court, and the trial court's ruling will not be disturbed absent an abuse of that discretion." Phea v. State, 767 S.W.2d 263, 267 (Tex.App.-Amarillo 1989, writ ref'd). We will reverse the trial court's decision to admit evidence under an exception to the hearsay rule only when there has been a clear abuse of discretion: "`when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree.'" Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003) (quoting Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992)).B. Applicable Law
Rule of evidence 803(5) provides that [t]he following are not excluded by the hearsay rule, even though the declarant is available as a witness:. . . .
5) Recorded Recollection. A memorandum or record concerning a matter about which a witness once had personal knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' [sic] memory and to reflect that knowledge correctly, unless the circumstances of preparation cast doubt on the document's trustworthiness. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.Tex. R. Evid. 803(5). To satisfy the exception, four elements must be met: (1) the witness must have had firsthand knowledge of the event, (2) the written statement must be an original memorandum made at or near the time of the event while the witness had a clear and accurate memory of it, (3) the witness must lack a present recollection of the event, and (4) the witness must vouch for the accuracy of the written memorandum. Johnson v. State, 967 S.W.2d 410, 416 (Tex.Crim.App. 1998).