No. 04-04-00086-CR
Delivered and Filed: March 9, 2005. DO NOT PUBLISH.
Appeal from the 175 Judicial District Court, Bexar County, Texas, Trial Court No. 1993-CR-7047, Honorable Mary Román, Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
Opinion by: CATHERINE STONE, Justice.
On November 13, 1991, Joshua Burns and a companion robbed a jewelry store. During the course of the robbery, Burns and his companion shot and killed the owner of the store, Jorge Mancilla. Rafael Villarreal and Eduardo Covarrubias witnessed the shooting and later identified Burns as one of the perpetrators of the offense. Burns was eventually charged with capital murder. After a jury trial, Burns was found guilty of capital murder and sentenced to life in prison. Burns appeals his conviction and life sentence, complaining the trial court erred by: (1) denying his pretrial motion to suppress the in-court identification of him by two of the State's witnesses; (2) denying his motion for continuance and proceeding with trial in his absence; and (3) allowing the State to offer into evidence a videotape of the crime scene. We affirm.
Burns was a juvenile at the time he committed the offense, but was certified to stand trial as an adult.
Motion to Suppress the In-Court Identifications
In his first two issues, Burns challenges the in-court identifications of him by two of the State's witnesses. Burns alleges the authorities' out-of-court identification procedures were impermissibly suggestive and tainted the in-court identifications by the witnesses. Consequently, Burns argues the trial court erred by denying his pretrial motion to suppress the in-court identifications. In-court identifications that are tainted by an impermissibly suggestive pretrial identification procedure are inadmissible. Loserth v. State, 963 S.W.2d 770, 771-72 (Tex.Crim.App. 1998). The standard of review for a ruling on a motion to suppress an in-court identification due to an impermissibly suggestive pretrial identification procedure is the standard set forth in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997). Id. at 771. Under the Guzman standard, we afford almost total deference to a trial court's determination of the facts, especially when the court's findings are based on an evaluation of credibility and demeanor. 955 S.W.2d at 89. We afford the same amount of deference to mixed questions of law and fact if the resolution of those ultimate questions turn on an examination of credibility and demeanor. Id. If mixed questions of law and fact do not relate to credibility and demeanor, then we review such determinations de novo. Id. "Whether a photographic identification was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification is a mixed question of law and fact that does not turn on an evaluation of credibility and demeanor." Moore v. State, 140 S.W.3d 720, 730 (Tex.App.-Austin 2004, pet. ref'd). Accordingly, we apply a de novo standard of review in the case at bar. Id. In reviewing whether an identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification, we look to the totality of circumstances surrounding the identification to determine if the procedure was unnecessarily suggestive. Webb v. State, 760 S.W.2d 263, 269 (Tex.Crim.App. 1988). We apply a two-step analysis when determining whether an in-court identification has been tainted. Simmons v. United States, 390 U.S. 377, 384 (1968); Moore, 140 S.W.3d at 730. First, we ask whether the out-of-court identification procedure was impermissibly suggestive. Simmons, 390 U.S. at 384; Moore, 140 S.W.3d at 730. Second, if suggestive, we ask whether that suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Simmons, 390 U.S. at 384; Moore, 140 S.W.3d at 730. The defendant bears the burden of establishing by clear and convincing evidence that the pretrial identification procedure was impermissibly suggestive and that the in-court identification is unreliable. Delk v. State, 855 S.W.2d 700, 706 (Tex.Crim.App. 1993). In this case, we must consider whether the repeated showing of Burns's photo in two different photographic lineups was suggestive. Several weeks after Jorge Mancilla was murdered, San Antonio Police Officer Roland Casias showed Rafael Villarreal a photographic lineup consisting of black and white Polaroid photos of Burns and five other individuals. Villarreal tentatively identified Burns from the lineup as one of the perpetrators of the offense. Approximately six weeks later, on February 3, 1992, Officer Casias showed Villarreal a second photographic lineup. This second lineup included color mug shot photographs of Burns and five other individuals. Villarreal once again identified Burns as one of the perpetrators of the offense. On January 28, 1992, Officer Casias showed Eduardo Covarrubias the black and white Polaroid photographic lineup that included Burns's photo. Like Villarreal, Covarrubias identified Burns as one of the perpetrators of the offense. On April 14, 1992, Covarrubias was shown the color photographic lineup that included Burns's photo. Once again, Covarrubias positively identified Burns's as one of the perpetrators of the offense. The repeated use of Burns's photograph in this case was not impermissibly suggestive. The court of criminal appeals has previously held that the showing of several photographic lineups to a witness on different occasions, each with a picture of the accused, is suggestive when the witness had not previously identified the accused. Cantu v. State, 738 S.W.2d 249, 251-52 (Tex.Crim.App. 1987) (emphasis added). However, such was not the case here. Instead, both of the State's witnesses had identified Burns from the first photo array before viewing the second array. As noted in Cantu, "[n]ot every case in which several arrays or displays of a defendant containing different pictures of a defendant [is] suggestive." Id. at 252. Each case depends upon the circumstances, id., and we cannot say the circumstances of this case demonstrate an unduly suggestive procedure. Because we have concluded that no impermissibly suggestive procedure was utilized, there is no need to evaluate whether the procedure created a substantial likelihood of irreparable misidentification. See Moore, 140 S.W.3d at 730-31. Burns's first and second issues are overruled. The Defendant's Voluntary Absence from Trial
In his third issue, Burns complains the trial court erred by denying his motion for continuance and proceeding with trial in his absence. Article 33.03 of the Texas Code of Criminal Procedure provides that, when the defendant voluntarily absents himself after the jury has been selected, the trial may proceed to its conclusion. Tex. Code Crim. Proc. Ann. art. 33.03 (Vernon 1989). We review a trial court's ruling that the defendant has voluntarily absented himself from trial under an abuse of discretion standard. See Moore v. State, 670 S.W.2d 259, 261 (Tex.Crim.App. 1984). The validity of a trial court's decision that the defendant's absence was voluntary will generally have to be determined in hindsight. Id. "Absent any evidence from the defendant to refute the trial court's determination that his absence was voluntary, we will not disturb the trial court's finding." Id. The record reflects that Burns appeared with defense counsel for voir dire on January 10, 1995. After the jury was selected and sworn, the trial court began Burns's trial. Burns appeared with defense counsel each day of the State's case in chief. On January 13, 1995, the State rested its case, and the trial court recessed until January 17, 1995. Burns, who was on bond, did not appear when court resumed on the 17th of January. When Burns did not appear, defense counsel requested a brief continuance so that Burns could be located. After Burns could not be located, the court, over defense counsel's objection, announced its intention to proceed in Burns's absence. Following the parties' closing arguments, the court excused the jury for deliberations. Upon doing so, the court conducted a hearing on the voluntariness of Burns's absence. At the hearing, Burns's mother, Kim Constable, was the only witness to testify. According to Constable, she drove Burns to the courthouse on the morning of January the 17th. Constable stated that she dropped Burns off in front of the courthouse, with an understanding that Burns would meet her inside of the 175th Judicial District Court. When Burns did not meet her as agreed, Constable attempted to locate Burns. Constable searched for Burns for more than five hours, but was unable to locate him. Constable stated that Burns was in good health and that she had no reason to believe Burns was ill when she dropped him off that morning. Constable also testified that Burns knew he had to return to court by 9:00 a.m. on January the 17th. She noted that Burns had indicated to her that he was worried about what might occur when his trial reconvened. Constable stated that she believed Burns's absence was involuntary, although she did not disclose the reasons for her belief. After Constable presented her testimony, the court allowed the jury to complete its deliberation process in Burns's absence. The jury subsequently found Burns guilty of capital murder. Burns, however, was not sentenced at that time because he remained a fugitive. When Burns was finally apprehended, nearly nine years had passed since the jury rendered its guilty verdict. The trial court proceeded to conduct Burns's sentencing hearing on December 31, 2003. At no time during the sentencing hearing did Burns complain that he was unlawfully tried in absentia or complain that he should not be sentenced at that time. Upon being sentenced to life in prison, Burns filed a motion for new trial. Again, Burns's motion did not argue that he was unlawfully tried in absentia. After reviewing the record, we cannot say that the trial court abused its discretion. First, Burns never introduced any evidence to suggest that his absence was anything other than voluntary. Burns neither provided reasons for his absence at the sentencing hearing nor filed a motion for new trial alleging that he was unlawfully tried in absentia. Second, the trial court had evidence before it from which it could reasonably infer that Burns voluntarily absented himself from trial. Burns was present when the trial court stated in open court that trial would reconvene at 9:00 a.m. on January the 17th. Burns specifically discussed the date and time the trial was set to reconvene with his mother. Burns even had his mother drop him off outside the courthouse on the morning of the 17th. The record also indicates that neither the court nor Burns's attorney received any communication from Burns or anyone else to explain why Burns failed to appear on the morning of trial. See Sanchez v. State, 842 S.W.2d 732, 733-34 (Tex.App.-San Antonio 1992, no pet.) (recognizing that "[i]n a day of modern communication systems, an absent defendant has some responsibility by contacting at least his attorney, or otherwise communicating with the court about his absence."). Lastly, the record reveals that Burns was free on bond when he disappeared and that he had expressed some concern over his case shortly before his disappearance. Accordingly, Burns's third issue is overruled. See Moore, 670 S.W.2d at 261 (holding evidence supported trial court's conclusion that defendant's absence was voluntary where defendant was present at the trial before his absence, he was instructed when and where trial would resume, he was out on bond when he disappeared, and he subsequently offered no explanation for his absence in a motion for new trial or otherwise.). The Crime Scene Video
In his fourth and fifth issues, Burns argues the trial court erred by allowing the State to offer into evidence a silent videotape depicting the murder scene. A trial court is given broad discretion in ruling on the admissibility of evidence. Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App. 1991). Therefore, a trial court's ruling on the admissibility of evidence is reviewed for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990). This standard requires an appellate court to uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement. Id. Unfair Surprise
In his fourth issue, Burns complains the trial court should have excluded the crime scene video because the State failed to apprise him of the videotape at any time. Burns filed a pretrial discovery motion requesting production of all evidence the State intended to use during trial. The State complied with Burns's request, but made no mention of the videotape. At trial, the State introduced the videotape into evidence. Burns objected on the basis that the State had not apprised him of the videotape and claimed the State should have revealed the video pursuant to his request for production. Burns, however, did not request a continuance on the grounds of surprise. "The failure to request a postponement or seek a continuance waives any error urged in an appeal on the basis of surprise." Lindley v. State, 635 S.W.2d 541, 544 (Tex.Crim.App. 1982). Because Burns failed to seek a continuance or postponement of the trial, he failed to preserve his complaint for our review. See id. Burns's fourth issue is overruled. Texas Rule of Evidence 403 In his fifth issue, Burns complains that the court should have excluded the videotape because the probative value of the video was substantially outweighed by the danger of unfair prejudice. The rules applicable to the admission of still photographs also apply to silent videotapes. Gordon v. State, 784 S.W.2d 410, 412 (Tex.Crim.App. 1990). Videotapes are admissible when they are properly authenticated, relevant to an issue, and do not violate the rules of evidence for the admissibility of photographs. Id. When a verbal description of a scene is admissible, a photograph or video recording of the scene would also be admissible. Wilkerson v. State, 726 S.W.2d 542, 547 (Tex.Crim.App. 1986). We have reviewed the silent videotape, which is approximately 15 minutes in length. It depicts the scene of the murder shortly after it occurred. The tape shows the disarray of the jewelry store after the murder; the location and position of the victim's body; the location of the victim's blood throughout the store; and the location of empty shell casings from the firearm used to shoot the victim. The tape further shows close-up footage of the victim's body from various angles and positions capturing the nature and location of the victim's wounds. Although the content of the video may be unpleasant to view, it depicts "nothing more than the reality of the brutal crime committed." See Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App. 1995). The videotape contains material that was the subject of testimony presented during the State's case in chief, see Wilkerson, 726 S.W.2d at 547, and is "probative of the fact and manner of the decedent's death and the killer's culpable mental state." Gordon, 784 S.W.2d at 412. After reviewing the videotape, we conclude that it has substantial probative value and could aid the jury in understanding the other evidence presented at trial. We therefore hold the probative value of the videotape was not substantially outweighed by any prejudicial effect it may have had upon the jury. Burns's fifth issue is overruled. Conclusion
Having overruled all of Burns's appellate complaints, the judgment of the trial court is affirmed.