Opinion
Nos. 05-04-00137-CR, 05-04-00138-CR
Opinion Issued April 29, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause Nos. F03-32232-TH, and F03-32233-TH. Affirmed.
Before Justices FRANCIS, LANG-MIERS, and MALONEY.
OPINION
The trial court found appellant, Roberto Adame, guilty of intoxication manslaughter in cause numbers F03-32232-H and F03-32232-H, entered a finding of a deadly weapon, and assessed a sixteen-year sentence in each case. The trial court also ordered that the sentences run concurrently. In one issue, appellant complains the trial court erred in admitting photographs of the deceased victims because the photographs' prejudicial effects outweighed their probative value. We affirm the trial court's judgments.
Background
Appellant entered his pleas of guilty before the magistrate's court without benefit of a plea bargain agreement. After warning appellant of the consequences of his pleas of guilty, the magistrate found the evidence supported appellant's guilt of intoxication manslaughter and appellant used or exhibited a deadly weapon in each cause. The magistrate then passed the cause for further findings, if any, and punishment. The trial court adopted the findings of the magistrate and began hearing evidence on punishment. At the punishment hearing, the State offered the testimony of Gary Osterbolt, who testified to the events leading up to the vehicle accident. On the night in question, he and two friends were coming home from a club. Osterbolt and one of his friends were in his vehicle and the other friend, Boykin, followed in her vehicle. When Osterbolt stopped for a red light, Boykin stopped behind him. Osterbolt head a "screech" and then a "bam" and he looked up and saw that appellant's truck had hit Boykin's vehicle. Appellant pulled around both vehicles and into a parking lot. Thinking appellant was going to exchange information, both Osterbolt and Boykin followed appellant into the parking lot. Rather than stopping, appellant backed up and hit Boykin's vehicle again and started toward Osterbolt's vehicle. Osterbolt was able to back up and avoid being hit. As appellant drove off, Osterbolt followed. Osterbolt thought appellant looked drunk and and was "swerving [in] every direction." Osterbolt told his passenger to get appellant's license plate number because appellant looked as if he would have a bad accident and they "needed to call this in." Appellant was driving so fast that Osterbolt could not keep up with appellant and lost sight of him. As Osterbolt came to the top of a hill, he saw appellant speeding toward an intersection. Osterbolt thought appellant was going so fast, he would run the red light, and a white vehicle was approaching the intersection from the west. Appellant ran the red light and hit the center of the approaching white vehicle. Sparks flew about 15-20 feet in the air, and both the truck and the white vehicle went into a wooded ravine or culvert. Osterbolt stopped to see if he could help. He could see the white vehicle and the tailgate of the truck, but could hear no sound. A female police officer arrived at the scene, and Osterholt told her that appellant "had hit [the white vehicle] so hard and nobody was moving . . . and nobody got out." Joann Lynn Medley, a Grand Prairie Police Officer, testified that she received a radio call from another officer that he had seen two vehicles traveling at a high rate of speed on the freeway. Medley was about a quarter of a mile away from the named freeway, so she headed toward the freeway to intersect the vehicles. She arrived in time to see the black pickup truck hit the white vehicle, go airborne into the traffic lights, and both vehicles go into the culvert. The white vehicle was on its side, and the pickup had caught on fire. No sound was coming from the white vehicle, but she heard moaning coming from the pickup truck. She and another officer pulled appellant and his passenger out through the truck's bed. Tommy Hedrick, a Grand Prairie Accident Investigator, testified that he measured the skidmarks and determined that a vehicle traveling fifty-two miles per hour would have been able to stop just before impact. However, he estimated appellant's truck had to be traveling between eighty and one hundred miles per hour before appellant applied his brakes. Additionally, the vehicle and the pickup truck traveled one hundred and one feet after impact. Two witnesses testified to the impact the deaths had on their families. Appellant identified twenty-four witnesses present in court to support appellant, but he only called three witnesses to testify for appellant. Each of appellant's witnesses asked the trial court for leniency. Cumulatively, they testified to his illegal status, no previous arrests, family support, remorse, and working skills. None knew him to have a drinking problem or to use drugs. At the conclusion of appellant's witnesses' testimony, appellant offered the toxicology report that showed that appellant had a blood alcohol level of 0.24 and drug results of 0.03 mg/l cocaine.DID THE TRIAL COURT ERR IN ADMITTING PHOTOGRAPHS OF THE DECEASED VICTIMS?
In appellant's sole issue, he argues the trial court erred in admitting two "gruesome photographs depicting the deceased victims." He contends, "while relevant," the photographs' prejudice outweighed their probative value. He argues that the autopsy report described the injuries and the photographs did not "illustrate any injuries," the evidence contained multiple photographs of the vehicles's damage, and "extensive testimony" from the deceased victims' family members on the impact of deaths rendered the complained-of photographs of minimal value. The State responds the photographs were highly probative of the damage appellant caused. The autopsy reports did not come into evidence until after the State rested its case and could not accurately depict the injuries in relation to the vehicle's damage. Additionally, no other photographs of the deceased victims were introduced into evidence.1. Standard of Review
We review a trial court's decision to admit photographs to determine whether the trial court abused its discretion in so doing. See Williams v. State, 958 S.W.2d 186, 195 (Tex.Crim.App. 1997). We do not reverse a trial court's erroneously admitting evidence unless the error affects an appellant's substantial rights. See Montgomery v. State, 810 S.W.2d 372, 376-77 (Tex.Crim.App. 1990) (op. on original submission). Nor do we reverse a trial court if its ruling was in the "zone of reasonable disagreement." Jones v. State, 944 S.W.2d 642, 651 (Tex.Crim.App. 1996). We do not reverse a case on nonconstitutional error "if after examining the record as a whole, we have a fair assurance that [the photographs] did not influence the [factfinder], or influenced [it] only slightly." See Hayes v. State, 85 S.W.3d 809, 816 (Tex.Crim.App. 2002).2. Applicable Law
All relevant evidence is admissible unless its prejudicial value substantially outweighs its probative value. See Long v. State, 823 S.W.2d 259, 271 (Tex.Crim.App. 1991). Texas rules of evidence favor the trial court's admitting relevant evidence and presume relevant evidence is more probative than prejudicial. See Tex. R. Evid. 403; Montgomery, 810 S.W.2d at 375. If verbal testimony is admissible, a photograph on the same matter is admissible. See Hayes, 85 S.W.2d at 816; see also Ward v. State, 787 S.W.2d 116, 120 (Tex.App.-Corpus Christi 1990, pet. ref'd). In determining whether the probative value of photographs outweighs the danger of unfair prejudice, we consider the number of exhibits offered, the gruesomeness, the detail, the size, and whether the photographs are in color or black and white, close up, and the bodies clothed or unclothed. See Wyatt v. State, 23 S.W.3d 18, 29 ((Tex.Crim.App. 2000). The range of punishment for intoxication manslaughter is two to twenty years. Tex. Pen. Code Ann. § 49.08 (Vernon 2003). Additionally, if an appellant is convicted of more than one intoxication manslaughter arising out of the same criminal episode, the trial court may order the sentences run concurrently or consecutively. Tex. Pen. Code Ann. § 3.03 (Vernon 2003).3. Application of Facts to Law
Appellant did not argue at trial or in his brief that the complained-of photographs were not relevant. Therefore, we presume that the photographs were relevant. His brief maintains the 8" by 10" photographs are usually taken in color, but admits the record does not indicate whether the photographs were black and white or in color. The State does not address this issue, but the record before this Court contains only black and white photocopied examples. Of the twenty-four photographs the trial court admitted, appellant only complains of State's exhibits 14 and 15-the only photos of the deceased victims admitted in punishment. Appellant's brief explains that State's exhibit 15 is a closeup of State's exhibit 14, showing both victims and the inside of the vehicle covered with blood spatter. Appellant maintains other photographs show the white vehicle "upside down" and State's exhibits 14 and 15 show the victims after the vehicle was right side up. Our examination of State's exhibits 11 through 13 and the trial testimony portrays the white vehicle as landing on its side, not upside down. Although it appears the vehicle is still on its side in the complained-of photographs, neither our copy of State's exhibits 14 and 15 nor anything in this record shows that the white vehicle had been moved when these photographs were taken. The only distinguishable object in State's exhibit 14 appears to be the driver's airbag-no bodies are visible in our copy. We cannot see how another photograph of a wrecked vehicle is prejudicial to appellant. The trial court did not err in admitting State's exhibit 14. We agree that the autopsy reports describe in detail the extent of the injuries of the deceased victims and State's exhibit 15 shows no injuries, only the deceased victims and blood spatter. Although no witness testified to the condition or position of the bodies in the vehicle, that testimony would certainly have been admissible in trial. And if the testimony of the condition of the bodies found at the scene was admissible, a photograph of the same would be admissible. See Jones, 944 S.W.2d at 652. The trial court did not err in admitting State's exhibit 15. Appellant argues that even the trial court described the photographs as "gruesome" and "certainly prejudicial." The record show the trial court reached its decision to admit the photographs as follows:THE COURT: The Court has done a balancing test. While they are certainly prejudicial, they are highly probative of the devastation caused by the accident. This Judge has been doing this for 23 years. And I've seen many, many gruesome photographs. And I believe that I can separate any prejudice from the probative value.While we agree State's exhibit number 15 is disturbing to view, it merely depicts the gruesome reality of the injuries sustained by the victims. The disturbing nature of these photographs are injuries attributable to appellant's acts and no other outside force. The trial court did not err in admitting State's exhibit number 15. Additionally, the State asked the trial court to run each sentence consecutively. Had the trial court followed the State's request, appellant could have two consecutive sentences. Instead, he received two concurrent sixteen-year sentences and no fine. This certainly affirms that the trial court was not unduly prejudiced by these photographs. We affirm the trial court's judgments.