No. 13-01-460-CR.
Opinion delivered and filed February 26, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 28th District Court of Nueces County, Texas.
Before Justices YAÑEZ, RODRIGUEZ and GARZA.
Opinion by Justice GARZA.
Appellant, Adrian Arrizon, was tried and convicted of capital murder and attempted capital murder, offenses for which he is currently serving two life sentences in prison. The trial court denied appellant's motion for new trial. Appellant appeals his conviction to this Court on three issues. We find against Appellant on all three issues, and accordingly affirm the judgment of the trial court.
Illegal Search
By his first issue, appellant argues that the owner of the house he was residing in did not have the legal authority to consent to the search of the house. Appellant had been staying at the home in question for about two months, with the knowledge and permission of the homeowner, Ninfa de los Santos. De los Santos had previously lived in the home with her son but had recently moved in with her sister following her son's incarceration. She retained her key to the property and occasionally came by the house unannounced while appellant was living there. Appellant did not pay rent but had agreed to keep the home and yard clean. Police officers initially came to the home in response to reports that the residence was being used as a meeting place for juvenile gang members. The officers received verbal consent for an initial search solely from De los Santos in order to conduct a search for bodies or people. De los Santos met police officers at the house and used her key to allow officers access inside the home. While the police were inside the home, appellant, who was not present initially, arrived at the house. After observing the wooden stock of a rifle and other suspicious items in the home, the officers obtained written consents for a broader search from both De los Santos and appellant. Thereafter, the police officers seized numerous items that were subsequently used against appellant at trial. Appellant argues that these items were seized illegally and should therefore have been excluded at trial. His motion to suppress this evidence was denied by the trial judge. A trial court's denial of a motion to suppress evidence is reviewed under a standard of abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). The appellate court must conduct this review in a light most favorable to the trial court, and must sustain the trial court's ruling so long as it is reasonably supported by the record and is correct on an applicable theory of law. Id.; Rangel v. State, 972 S.W.2d 827, 831 (Tex. App.-Corpus Christi 1998, pet. ref'd). In reviewing a trial court's determination regarding the search of a rented residence, the appellate court may address whether a property owner's consent in allowing the police to search the residence is also effective against the tenant. Franco v. State, 25 S.W.3d 26, 31 (Tex. App.-El Paso 2000, pet. ref'd). The United States Supreme Court has held that a warrantless search pursuant to a third party's consent is valid if the facts available to the officer at the time of the search would "warrant a man of reasonable caution in the belief" that the consenting party had authority over the premises. Illinois v. Rodriguez, 497 U.S. 177, 188 (1990). The Texas Supreme Court and this court have also agreed that so long as a police officer acts in good faith on the consent given and makes a reasonable inference from the facts of the situation, this kind of warrantless search can be considered valid. McNairy v. State, 835 S.W.2d 101, 104 (Tex.Crim.App. 1991). Additionally, the Texas Court of Criminal Appeals has held that, in informal two-party property relationships such as this, where rent is not paid and the property owner retains control over and authority to use the home, the property owner can give valid consent to search without the consent of the current resident. Balentine v. State, 71 S.W.3d 763, 773 (Tex.Crim.App. 2002); see Garcia v. State, 887 S.W.2d 846, 851-52 (Tex. Crim App. 1994) (permitting a landlord whose agreement with a tenant allows the landlord to enter the property and store items there to consent to search of that property by the police, even though the tenant had changed the locks and maintained exclusive control). A person with "common authority" over property may legally consent to a police search of that property, even without the knowledge or consent of another party having access to or use of the property. Franco, 25 S.W.3d at 31. "Common authority" is established through joint access or control of the property for most purposes. Id. Trial testimony established that at the time of the initial search, both police officers believed they were entering a deserted house no longer used as a residence, since the windows had been boarded up and the owner initially told them no one was living there. The homeowner had clearly retained control over and authority to enter the home, as she used her own keys to open the door where she had installed a lock, and she testified that she would visit the home unannounced during appellant's residency. She also reported that she continued to store items inside the home, including the wooden rifle stock seized as evidence during the second search, which she testified she had found months earlier. Upon completion of the initial search, the police officers wanted to conduct a more thorough inspection that would extend beyond the parameters of the initial consent. The officers then obtained written consent from both appellant and the owner. Because the owner had clearly retained common authority over the property, her continuing consent, allowing the police to expand the parameters of the initial search, was valid. This was sufficient for the trial judge to find that the evidence seized by the police during this search was admissible. Furthermore, the judge did not abuse his discretion in finding that the homeowner retained common authority over the property and that the officers did in fact act reasonably in accepting the owner's verbal consent to the initial search. See Franco, 25 S.W.3d at 31-32. We overrule appellant's first issue. Jury Instructions
Appellant alleges by his second issue that he was denied due process of law and the right to a fair jury trial when the trial judge refused the defense team's tendered jury instruction, which would have defined prosecution witness Lee Roy Vela as an accomplice as a matter of law. This Court reviews jury instructions under an abuse of discretion standard. Wesbrook v. State, 29 S.W.3d 103, 122 (Tex.Crim.App. 2000). A trial judge has broad discretion when fashioning a jury charge and only has to accept such suggested instructions from counsel "as he may deem proper." TEX. CODE CRIM. PROC. ANN. art. 36.16 (Vernon 1981). When the judge does not use a requested instruction, the question on appeal is whether that instruction was reasonable and within the mandates of TEX. CODE CRIM. PROC. ANN. art. 38.22 and 38.23 (Vernon 2004). Mendoza v. State, 88 S.W.3d 236, 240 (Tex. Crim App. 2002). An accomplice is a party who participates before, during or after the commission of the crime, and who could be prosecuted for the same offense as the defendant or for a lessor included offense. Blake v. State, 971 S.W.2d 451, 454-55 (Tex.Crim. App. 1998); Ex Parte Zepeda, 819 S.W.2d 874, 875-76 (Tex.Crim. App. 1991). A party is not considered an accomplice for knowing about the crime and failing to report it to authorities, or even concealing it. Blake, 971 S.W.2d at 454. Article 38.14 of the Texas Code of Criminal Procedure establishes how accomplice testimony is to be used as trial: "A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense." TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon 1979). It has been well established for over a century in this state that whenever "there is a question whether a witness is an accomplice, it is proper to submit that issue to the jury, and this is sufficient even though the evidence appears to preponderate in favor of the conclusion that the witness is an accomplice as a matter of law." Harris v. State, 645 S.W.2d 447, 454 (Tex.Crim.App. 1983); see Blake, 971 S.W.2d at 455; Smith v. State, 229 S.W. 523, 526 (Tex.Crim.App. 1921); Powell v. State, 57 S.W. 95, 96 (Tex.Crim.App. 1900). Only when the evidence clearly and convincingly shows that the witness is an accomplice as a matter of law is the judge bound to instruct the jury of this fact. Harris, 645 S.W.2d at 454; see DeBlanc v. State, 799 S.W.2d 701, 708 (Tex.Crim.App. 1990); Fields v. State, 426 S.W.2d 863, 864 (Tex Crim App. 1968); Mora v. State, 197 S.W.2d 209, 211 (Tex. App.-Corpus Christi 1990, pet. ref'd); Sexton v. State, 51 S.W.3d 604, 613-14 (Tex. App.-Tyler 2000, pet. ref'd). The trial court is under no duty to instruct the jury unless there is no doubt or the evidence clearly shows that a witness is an accomplice witness as a matter of law. Kutzner v. State, 994 S.W.2d 180, 187 (Tex.Crim.App. 1999). In this case, there was testimony from two accomplices, and the jury was accordingly instructed on how to properly weigh their testimony. However, Lee Roy Vela, the prosecution witness in question, was not charged in the crime, nor was he ever a serious target of the police investigation. He was not at the scene of the crime, did not know it had occurred until some time later, and was present only at the inchoate planning stages. He testified that he had not assisted with or approved of the planned offense, and was not a member of the gang that had carried out the shooting. The evidence was insufficient to charge Vela as an accomplice as a matter of law. See Herron v. State, 86 S.W.3d 621, 631 (Tex.Crim.App. 2002) (citing Ex Parte Zepeda, 819 S.W.2d 874, 876 (Tex.Crim.App. 1991)). Thus, the question of his involvement and relative culpability remained one of fact, and therefore was appropriately handled by the jury, not the judge. While the judge did not instruct the jury specifically on the difference between accomplices-in-law and accomplices-in-fact, the charge included the definition of the term "accomplice," was otherwise fair and met the considerations established in Harris, Mora, and the other authority previously cited. See Navarro v. State, 863 S.W.2d 191, 201 (Tex. App.-Austin 1993, pet. ref'd) ("If witness is not an accomplice witness, no instruction need be given."). We conclude, therefore, the requested charge was not necessary to enable the jury to render a proper verdict, and there was no abuse of discretion by the trial judge. Appellant's second issue is overruled. Admissibility
In his third issue, appellant argues that a gruesome photograph of the victim should not have been admitted, as it was substantially more prejudicial than probative and was unnecessary to prove any element of the State's case. An appellate court reviewing a lower court's ruling on the admissibility of evidence must apply an abuse of discretion standard of review, and must examine the trial judge's ruling in the context of the other evidence presented at trial. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). A gruesome photograph of a victim of a violent crime is not rendered inadmissible as evidence simply because of its gruesomeness and accompanying emotional effect on the jury; instead, the controlling factor on admissibility is whether the probative value of the photograph as evidence outweighs its potentially prejudicial effect, which the trial judge has the discretion to determine. TEX. R. EVID. 403; Fuentes v. State, 846 S.W.2d 527, 529 (Tex.App.-Corpus Christi 1993, pet. ref'd); Reimer v. State, 657 S.W.2d 894, 898 (Tex. App.-Corpus Christi 1983, no pet.). Probative value is established if the photograph is needed to support the observations and conclusions of pathologists or medical examiners, or to otherwise corroborate evidence presented at trial. Lewis v. State, 505 S.W.2d 603, 604 (Tex.Crim.App. 1974). For example, in Ward v. State, 787 S.W.2d 116, 120 (Tex. App.-Corpus Christi 1990, pet. ref'd), a photograph that depicted the head of the child victim and indicated entry of the bullet was admissible to reveal the manner of death. Id. Indeed, photographic evidence, however gruesome, is rarely excluded as overwhelmingly prejudicial; the rare cases in which such evidence has been excluded involved extremely gruesome photographs of previous or unrelated crimes. See Jones v. State, 111 S.W.3d 600, 608 (Tex. App.-Dallas 2003, pet. ref'd), Potter v. State, 74 S.W.3d 105, 113 (Tex. App.-Waco 2002, no pet.). Appellant disputes the necessity of the photograph and argues that it was simply used to incite the passions of the jury. However, the trial record shows that the photograph of the victim's head was used to both corroborate the testimony of the Nueces County medical examiner regarding the caliber of the weapon used and the fact that the victim had been facing the shooter, and the testimony of an accomplice as to what the appellant had told him occurred during the shooting. No other less gruesome photograph admitted into evidence would have accomplished this, as this was the only photograph documenting the head wound. Thus, the trial court did not abuse its discretion in admitting the disputed photograph into evidence. We overrule appellant's third issue. Conclusion
Accordingly, we affirm the judgment of the trial court.