Grindele v. State

Full title: STEPHANIE FAYE GRINDELE, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 31, 2004

No. 05-03-00440-CR (Tex. App. Mar. 31, 2004)

Opinion

No. 05-03-00440-CR.

Opinion Filed March 31, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 265^th Judicial District Court Dallas County, Texas, Trial Court Cause No. F96-23705-MR. Affirmed.

Before WHITTINGTON, LANG, and LANG-MIERS.

OPINION

Opinion By Justice LANG.

Stephanie Faye Grindele, formerly Stephanie Faye Navratil,¹ appeals her conviction for the felony offense of intoxication manslaughter. The appellant pleaded guilty to intoxication manslaughter and the jury assessed punishment at five years of confinement. During the trial on punishment, the appellant unsuccessfully objected to the State's introduction of a pre-autopsy photograph of the victim. The appellant argues that the trial court erred by denying her objection. We affirm the trial court's judgment.

1 Three names for the appellant appear in the record: (1) Stephanie Faye Navratil; (2) Stephanie Faye Grindele; and (3) Stephanie Faye Quinn. The record shows that at the time of the offense subject to this appeal, the name used by the appellant was Stephanie Faye Navratil. The record also shows that subsequent to that offense the appellant married and began using the name Stephanie Faye Grindele. The record is silent as to the period and nature of the appellant's use of the name Stephanie Faye Quinn.

Factual and Procedural Background

On the evening of November 17, 1996, the appellant was driving her Chevrolet Suburban on Interstate 30. While driving, the appellant struck a retaining wall on the side of the highway. After hitting the retaining wall, the appellant lost control of her vehicle and crossed the highway median into oncoming traffic. Consequently, the appellant's vehicle collided head-on with a Volkswagon Jetta. Patricia Hubbard, the driver of the Volkswagon Jetta, was pronounced dead at the scene of the accident. After more than two hours had lapsed from the time of the accident, the appellant's blood was drawn to determine her blood-alcohol level. The appellant's blood-alcohol level was determined to be at a level greater than twice the legal limit. The appellant was indicted for intoxication manslaughter in connection with a motorist's death. The indictment also included an allegation that the motor vehicle driven by the appellant was a deadly weapon. A plea of guilty was entered to the charge and a jury was empaneled for the sole purpose of determining the appellant's punishment. On July 1, 1997, the jury assessed a sentence of eight years imprisonment and a fine in the amount of $10,000.00. The appellant appealed to this Court. We reversed the trial court's judgment and remanded the case for a new trial on punishment. Navratil v. State, No. 05-97-01404-CR, 2001 WL 92688 (Tex. App.-Dallas 2001, pet. ref'd) (not designated for publication). At the retrial on punishment, the trial court held a hearing outside of the presence of the jury. During that hearing, the appellant objected to the admission of a pre-autopsy photograph of the victim on the grounds that it was gruesome and its probative value was outweighed by its prejudicial effect. After reviewing the pre-autopsy photograph of the victim, the trial court overruled the appellant's objection. Upon the jury's return, the State authenticated the pre-autopsy photograph of the victim through the testimony of the medical examiner and offered it into evidence. The appellant renewed her objection to the photograph in the presence of the jury on the same grounds. Again, the trial court overruled the appellant's objection. On March 13, 2003, after the retrial on punishment, the jury assessed the appellant's punishment at five years of confinement. The appellant appeals the judgment of March 13, 2003.

Standard of Review

An abuse of discretion standard of review is applied to the trial court's decision to admit or exclude evidence. Green v. State, 934 S.W.2d 92, 102 (Tex.Crim.App. 1996), cert. denied 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997); Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App. 1990) (op. on orig. submission). The trial court will be reversed only when its decision on the admissibility of evidence lies outside the zone of reasonable disagreement. Montgomery, 810 S.W.2d at 391 (op. on reh'g).

Admissibility of Photographic Evidence

Texas Rule of Evidence 403 governs the admissibility of photographic evidence alleged to be unduly prejudicial. Emery v. State, 881 S.W.2d 702, 710 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1192, 115 S.Ct. 1257, 131 L.Ed.2d 137 (1995); Horton v. State, 986 S.W.2d 297, 305 (Tex. App.-Waco 1999, no pet.). Rule 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

Tex. R. Evid. 403. Rule of Evidence 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Eg. Hayes v. State, 85 S.W.3d 809, 815 (Tex.Crim.App. 2002); Green, 840 S.W.2d at 410; Montgomery, 810 S.W.2d at 376 (op. on orig. submission). When the admission of photographic evidence is challenged, it is within the sound discretion of the trial court to admit or exclude it. Eg. Chamberlain v. State, 998 S.W.2d 230, 237 (Tex.Crim. App. 1999), cert. denied 528 U.S. 1082, 120 S.Ct. 805, 145 L.Ed.2d 678 (2000); Williams v. State, 958 S.W.2d 186, 195 (Tex.Crim.App. 1997) (en banc); Sonnier v. State, 913 S.W.2d 511, 518 (Tex.Crim.App. 1995). However, the probative value of a photograph must not be substantially outweighed by its inflammatory nature. Long v. State, 823 S.W.2d 259, 272 (Tex.Crim. App. 1991), cert. denied 505 U.S. 1224, 112 S.Ct. 3042, 120 L.Ed.2d 910 (1992); Shavers v. State, 881 S.W.2d 67, 77 (Tex. App.-Dallas 1994, no pet.). Relevant factors in determining whether the probative value of a photograph is outweighed by its inflammatory nature include the following: (1) the number of exhibits offered; (2) their gruesomeness; (3) their detail; (4) their size; (5) whether they are black and white or color; (6) whether they are close-up shots; (7) whether the body is naked or clothed; (8) the availability of other means of proof; and (9) other circumstances unique to the case. Eg. Hayes, 85 S.W.3d at 815; Wyatt v. State, 23 S.W.3d 18, 29 (Tex.Crim.App. 2000); Chamberlain, 998 S.W.2d at 237. A photograph is not rendered inadmissible merely because it is gruesome or might tend to arouse the passions of the jury, unless it is offered solely for the purpose of inflaming the minds of the jury. Potter v. State, 74 S.W.3d 105, 112 (Tex.Crim.App. 2002); Ward v. State, 787 S.W.2d 116, 120 (Tex. App.-Corpus Christi 1990, pet. ref'd). When the power of the visible evidence emanates from nothing more than what the defendant has done, the trial court has not abused its discretion merely because it admits the gruesome photographs. Sonnier, 913 S.W.2d at 519. In addition, the fact that the subject of the photograph is gory and gruesome does not make the photograph more prejudicial than probative when the crime scene was gory and gruesome. Shavers, 881 S.W.2d at 77. See Long, 823 S.W.2d at 273. Generally, photographs are admissible where verbal testimony about the same matters is admissible. Jones v. State, 944 S.W.2d 642, 652 (Tex.Crim.App. 1996), cert. denied 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997); Emery, 881 S.W.2d at 710. See also Ward v. State, 787 S.W.2d at 120 (if a verbal description of the body and scene would be admissible, a photograph depicting the same is admissible). A photograph is admissible where it serves to support testimony regarding the injuries sustained by the victim. Hayes, 85 S.W.3d at 816. Further, the use of visual evidence to accompany oral testimony is not cumulative of the testimony, but instead offers the fact finder a point of comparison against which to test a witness' credibility and the validity of his conclusions. See Chamberlain, 998 S.W.2d at 237. Autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself. Hayes, 85 S.W.3d at 816. Further, the prejudicial value of victim photographs prior to an autopsy where the body has been cleaned of excess blood and foreign material and appears on a clean metal gurney do not substantially outweigh their probative value. See Morales v. State, 897 S.W.2d 424, 428 (Tex. App.-Corpus Christi 1995, pet. ref'd).

Inflammatory Nature of Photograph Does Not Outweigh Its Probative Value

In the appellant's sole issue on appeal, she claims that the trial court erred by overruling her objection to the admission of a pre-autopsy photograph of the victim because the probative value of the photograph was outweighed by its prejudicial effect. Specifically, the appellant argues that the pre-autopsy photograph of the victim was inflammatory because: (1) the photograph is in color; (2) the photograph is a close-up shot; (3) the body is unclothed; (4) the testimonial evidence adequately described the victim's injuries and cause of death; (5) the photograph is unduly gruesome; and (6) the photograph has minimal probative value because the cause of death is uncontroverted. The appellant did not allege at trial or in her brief that the photograph is irrelevant. Therefore, we will presume that the photograph is relevant. Any error relating to the relevancy of the photograph is waived. Tex.R.App.P. 33.1. While the photograph is gruesome, in the sense that is disturbing to view, it merely depicts the gruesome reality of the injuries sustained by the victim. See Sonnier, 913 S.W.2d at 519. The photograph is 8 inches by 10 inches, an average size. It is not a close-up shot, but it depicts the victim's upper body from her head to her knees. See generally Hayes, 85 S.W.3d at 816 (photograph of victim's head and torso admissible); Rojas v. State, 986 S.W.2d 241, 249 (Tex.Crim.App. 1998) (photograph displaying trauma to pelvic area admissible). In addition, the victim's body appears to have been cleaned of extraneous blood and is depicted in a sterile environment on a clean blue gurney. Morales, 897 S.W.2d at 428. An examination of the record also shows that the medical examiner used the photograph as a visual aid during his unchallenged testimony regarding the victim's cause of death. Chamberlain, 998 S.W.2d at 237 (rejecting the premise that visual evidence accompanying pathologist's oral testimony corroborating uncontested information is cumulative); Jones, 994 S.W.2d at 652 (photograph admissible where forensic pathologist's verbal testimony about the same was admissible). It is noted that the photograph is printed in color and depicts the victim unclothed. However, the mere fact that a photograph is printed in color does not appear to be sufficient to make it unnecessarily gruesome or cause its probative value to be substantially outweighed by its inflammatory nature. See generally Wyatt, 23 S.W.3d at 29; Chamberlain, 998 S.W.2d at 237; Rojas, 986 S.W.2d at 249; Jones, 944 S.W.2d at 651; Sonnier, 913 S.W.2d at 519. Further, the sole fact that the victim is unclothed in a photograph used to illustrate the injuries or wounds to her pelvic area is not sufficiently inflammatory to outweigh the photograph's probative value. See generally Rojas, 986 S.W.2d at 249 (photo of an unclothed victim with legs apart displaying trauma to pelvic area admissible); Morales, 897 S.W.2d at 428 (pre-autopsy photograph of unclothed victim admissible). The probative value of the photograph was not outweighed by its inflammatory nature. The trial court did not abuse its discretion in admitting the pre-autopsy victim photograph. The appellant's sole point of error is overruled.

Harmless Error

The probative value of the pre-autopsy victim photograph was not outweighed by its inflammatory nature. However, even if the photograph had been unduly prejudicial, the non-constitutional error would have been harmless. Tex.R.App.P. 44.2(b). If an examination of the record as whole provides a fair assurance that the error did not influence the jury, or influenced them only slightly, a case will not be overturned on non-constitutional error. Hayes, 85 S.W.3d at 816. An examination of the record shows that the pre-autopsy photograph of the victim was described in the medical examiner's unchallenged testimony. In addition, the record shows that the court admitted a pre-autopsy photograph of the victims' head and two photographs of the victim pinned in her vehicle at the crime scene. The appellant does not complain about these photographs on appeal. Therefore, considering the entire record, no substantial right of the appellant was affected and any error in admitting the photographs was harmless.

Conclusion

We conclude that the probative value of the pre-autopsy photograph was not outweighed by its inflammatory nature. We also conclude that even if the photograph was found to be unduly prejudicial, the non-constitutional error would have been harmless. We affirm the trial court's judgment.