Opinion
No. 05-08-00997-CR
Opinion issued March 31, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F07-01188-Y.
Before Justices MORRIS, O'NEILL, and FILLMORE.
OPINION
A jury convicted Gregory Shaun Bradford of murder. He now complains on appeal that the trial court erred in admitting autopsy photographs into evidence and overruling his objection to the State's jury argument. Concluding appellant's arguments are without merit, we affirm the trial court's judgment. In his first point of error, appellant complains the trial court erred in admitting autopsy photographs into evidence. The photographs not only demonstrate the stabbing injuries caused by appellant in killing the deceased but also show the burns caused to the deceased's body, including his genitalia, when appellant doused him or the area around him with gasoline and set him on fire. A medical examiner testified that the autopsy showed the deceased was no longer breathing at the time his body was set on fire. Before testimony began in the case, appellant's attorney stated that he was "probably going to be objecting to pretty much all of [the autopsy photographs] because they don't prove anything that the Medical Examiners is [sic] not going to be able to testify about." The defense attorney clarified that he was making a "403 objection" to the photographs. The State's theory of admissibility for the photographs was based on its assertion that appellant burned the body presumably to hide the commission of the offense and that fact was relevant to show appellant's consciousness of guilt. The judge stated, "The Court will make a balancing test under Rule 403, and I have determined that the photographs are relative [sic] and probative because they show conscious [sic] of guilt on the part of the defendant in an attempt to conceal the commission of the alleged crime and that they are more probative than prejudicial; and thus, admissible under Rule 403." When the photographs were offered into evidence, appellant renewed his objection, which the trial court overruled. In his first point of error, appellant complains the trial court erred by admitting the autopsy photographs. He argues that the graphic images could have confused the jury about the cause of death and the perpetrator of the murder without demonstrating the cause of appellant's death, because the medical examiner testified the cause of death was a combination of multiple sharp force injuries. See Tex. R. Evid. 403. Autopsy photographs provide powerful visual evidence of an offense, and a trial court does not abuse its discretion in admitting photographs of a decedent into evidence merely because they may be gruesome. Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995). The fact that photographs accompany oral testimony establishing the same facts does not render the evidence cumulative or of weak probative value. Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999). Further, photographs will not be held to be unfairly prejudicial if they depict nothing more than the reality of the brutal crime committed. See id. The autopsy photographs in this case, although gruesome, demonstrate the decedent's stab wounds as well as the burns to the body. The reality of the murder committed by appellant was that he purposefully burned the decedent's body in what appeared to be an effort to conceal his crime. Having reviewed the record, we conclude the trial court did not abuse its discretion. We overrule appellant's first point of error. In a related point of error, appellant contends that the trial court did not engage in the appropriate balancing test under rule of evidence 403 before admitting the autopsy photographs into evidence. He argues that it is "clear from the record" that the trial court never looked at the photographs individually before making a decision that they were all admissible as a group. The record, however, shows that before the ruling, the prosecutor asked the judge if he wanted "to look at the autopsy photos ahead of time," and the judge responded affirmatively. Following the objection, the trial judge specifically stated that he had engaged in the rule 403 balancing test in making his ruling. Nothing in the record before us demonstrates that the trial judge failed to examine the photographs individually before making his ruling. Moreover, appellant waived any complaint on this issue by failing to raise his objection at trial. See Jones v. State, 982 S.W.2d 386, 395 (Tex. Crim. App. 1998). We overrule appellant's second point of error. In his third point of error, appellant complains the trial court erred in overruling his objection when the prosecutor "impermissibly commented on Appellant's failure to testify during jury argument at the guilt/innocence phase of the trial." Police testimony in the case established that after the deceased's charred body was discovered in appellant's garage, police found appellant hiding under some laundry in a closet. He claimed that someone was after him and that someone was in the attic. Officers searched the house but were unable to find anyone else in the attic or elsewhere. The prosecutor argued the following:
What else do we know from the evidence that night? We know that there were only two people in that home. We know that another person did not commit this crime. We know that from the evidence. Did you hear one shred of evidence that would suggest to you another person was in that home?The trial court overruled appellant's objection that the argument constituted a comment on his failure to testify. A prosecutor cannot comment on the failure of an accused to testify. Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001). To determine whether a defendant's right against self-incrimination has been violated, we view the offending language from the jury's standpoint. Id. at 764. The implication that the comment referred to the defendant's failure to testify must be clear. Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004). It is not sufficient that the language might be construed as an implied or indirect allusion; rather, the test is whether the language used was manifestly intended or of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify. Id at 130. In applying this standard, we consider the context in which the comment was made. Bustamante, 48 S.W.3d at 765. Given the context of the police officers' search after appellant claimed that another person was in the house, we cannot say the prosecutor's argument was of such a character that the jury would necessarily take it as a comment on appellant's failure to testify. The trial court did not err in overruling appellant's objection. We overrule appellant's third point of error. We affirm the trial court's judgment.