No. 14-08-00235-CR
Opinion filed June 4, 2009. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).
On Appeal from the 176th District Court, Harris County, Texas, Trial Court Cause No. 1103778.
Panel consists of Chief Justice HEDGES and Justices ANDERSON and SEYMORE.
JOHN S. ANDERSON, Justice.
The appellant, Lynn Payne Houston, was convicted by a jury for the offense of aggravated assault with a deadly weapon. See Tex. Penal Code Ann. § 22.02(a)(2) (Vernon 2003). Based on an agreement between the State and the appellant, the trial court assessed punishment at forty years' confinement, to be served at the Texas Department of Criminal Justice, Institutional Division. In one issue, appellant contends the trial court erred in admitting four photographs, alleging they were gruesome and cumulative. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because of the nature of appellant's issue, we find it unnecessary to set forth a detailed account of the facts and circumstances surrounding appellant' offence.
On the evening of February 1, 2007, complainant Cassandra Stutler went to pick up her daughter from a friend's house in Houston, Texas. When she arrived at her friend's home, she saw her recent ex-boyfriend, the appellant, there as well. Shortly thereafter, Cassandra and the appellant began arguing, which quickly escalated into a physical fight. Cassandra ended up on the floor trying to protect herself from the appellant kicking, stomping, and hitting her. Appellant then grabbed a wooden paper towel holder from a nearby table and struck Cassandra in the head repeatedly to the point she noticed blood spurting from her head. The friend and her husband were able to pull appellant off Cassandra and ordered him to leave their home. Cassandra then went to the emergency room at Ben Taub hospital and was treated for her injuries from the assault. Officer Kevin Brown interviewed Cassandra at the hospital after responding to a call from dispatch regarding the assault. During the interview, she provided him with the paper towel holder used to assault her, along with a compact disc containing four photographs of her injuries taken immediately after the altercation. DISCUSSION
A. Did the Danger of Unfair Prejudice Substantially Outweigh the Probative Value of the Evidence?
In his only issue, appellant argues the trial court erred in admitting State's Exhibits 1 through 4, photographs depicting the complainant's victim's injuries. Appellant contends the four photographs were erroneously admitted into evidence over his Rule 403 objection and were unfairly prejudicial because they were gruesome and cumulative. Three of the photographs, depict blood on the complaint; one of the complainant facing the camera with blood stains on her head and hand; one of the complainant's back, with blood stains on her shirt, and one of the complainant's scalp with a small puddle-like blood spot. There are two close-up images of the complainant's scalp wound; one appears to contain a small blood spot, as stated, while the other appears to depict the wound from a slightly different angle, with the victim's hair parted in a way to make the injury more clearly visible. 1. Standard of Review The admissibility of a photograph is within the sound discretion of the trial court and we review that decision under an abuse of discretion standard. Shuffield v. State, 189 S.W.3d 782, 786, 787 (Tex.Crim.App. 2006); Andrade v. State, 246 S.W.3d 217, 227 (Tex.App.-Houston [14th Dist.] 2007, pet. ref'd). Because trial courts are in the best position to decide questions of admissibility, appellate courts uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement. Cameron v. State, 241 S.W.3d 15, 19 (Tex.Crim.App. 2007); Isenhower v. State, 261 S.W.3d 168, 178 (Tex.App.-Houston [14th Dist.] 2008, no pet.). 2. Rule 403 Balancing Test Evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. Relevant evidence may still be excluded by the trial court under Rule 403 "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 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Shuffield, 189 S.W.3d at 787; Andrade, 246 S.W.3d at 227. In conducting a Rule 403 analysis, a trial court must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or repeat evidence already admitted. Casey v. State, 215 S.W.3d 870, 880 (Tex.Crim.App. 2007). a. Analysis I. Probative Force and Proponent's Need for Evidence First, we evaluate the "probative value" of the photographs; that is, the inherent probative force of an item of evidence coupled with the proponent's need for that item of evidence. Casey, 215 S.W.3d at 879. Probative force refers to how strongly the item of evidence serves to make more or less probable the existence of a fact of consequence to the litigation. Id. The State had the burden to prove appellant caused bodily injury to the complainant by hitting her with a deadly weapon. See Tex. Penal Code Ann. § 22.02(a)(2) (Vernon 2003). The photographs tended to make the existence of the fact that a bodily injury occurred and its extent more probable than it would have been based on the testimony of the two witnesses alone without the pictorial evidence. The trial court could have reasonably concluded the inherent probative force of the photographs was considerable because the photographs provided context for the offense. See Austin v. State, 222 S.W.3d 801, 809 (Tex.App.-Houston [14th Dist.] 2007, pet. ref'd). Next, in assessing the proponent's need for the evidence, three subparts are to be addressed: (1) whether the proponent has other available evidence to establish the fact of consequence the evidence is admissible to show; (2) if so, the strength of that other evidence; and (3) whether the fact of consequence is related to an issue that is in dispute. Reese v. State, 33 S.W.3d 238, 242 (Tex.Crim.App. 2000). Officer Brown and the complainant were the only witnesses for the State, and they briefly testified as to injuries received as a result of the assault. Thus, the photographs were relevant and necessary for the prosecution to aid the jury in understanding the testimony regarding the extent of the victim's injuries and the trial court could have reasonably found there was a need for the proponents to put forth the evidence. ii. Counterfactors We must now balance the probative value of the evidence against the Rule 403 counterfactors. Casey, 215 S.W.3d at 883. Potential to Impress the Jury . First, we consider the inherent tendency that the introduction of certain evidence may lead to the resolution of material issues based on an improper (emotional) basis. Narvaiz v. State, 840 S.W.2d 415, 429 (Tex.Crim.App. 1992). Rule 403 requires an admissible photograph to possess " some probative value and that its probative value not be substantially outweighed by its inflammatory nature." Long v. State, 823 S.W.2d 259, 272 (Tex.Crim.App. 1991) (emphasis in original). When reviewing a challenge as to the admissibility of photographs specifically, we consider factors including: the number of photographs offered, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close-up, and whether the body is naked or clothed. Id. at 272; Whitemire v. State, 183 S.W.3d 522, 531 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd). While they may be deemed "gruesome" by some, the trial court does not err when admitting them based on that reason alone. See Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App. 1995). In this case, the power of the photographs stems from nothing more than the affects of appellant's offense appellant himself had done and are no more gruesome than the facts of the offense itself. See id. Further, they are limited in number to four, which the victim testified depicted her injuries at the time. They were not identical, the victim was fully clothed, they were not enlarged, they did not depict large amounts of blood, nor were they unnecessarily close-up or enhanced. Even assuming the photographs were presented to the jury in color, we hold the images were not of such a horrifying or appalling nature that a juror of normal sensitivity would have difficulty rationally deciding the critical issues of the case after viewing any of them individually or cumulatively. See Fuller v. State, 829 S.W.2d 191, 206 (Tex.Crim.App. 1992), overruled on other grounds by Castillo v. State, 913 S.W.2d 529 (Tex.Crim.App. 1995). It was therefore within the zone of reasonableness for the trial court to conclude the evidence would not lead to a jury's resolution of material issues based on an emotional response to the photographic evidence. Confusion of the Issues . Second, we inquire as to the tendency of the evidence to confuse or distract the jury from the main issues. See Casey, 215 S.W.3d at 880. Because the photographs were proof of the charged offense, they could not have possibly distracted the jury from the issue at hand. See Manning v. State, 114 S.W.3d 922, 928 (Tex.Crim.App. 2003). Misleading the Jury . Third, we examine any tendency of the evidence to be given undue weight by a jury on other than emotional grounds. Gigliobianco, 210 S.W.3d at 641. For example, "scientific" evidence that might mislead a jury that has not been properly equipped to evaluate the probative force of the evidence. Id. On appeal, the appellant does not mention this factor nor argue it weighs against admissibility. Rather, appellant bases his argument on the opposite — the gruesomeness of the photographs sways the jury because of emotional reasons. Because we see no reason for this factor to tip the scale in favor of inadmissibility, we conclude it should weigh in favor of admissibility. Undue Delay and Needless Presentation of Cumulative Evidence . Fourth, we examine the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco, 210 S.W.3d at 642. This factor concerns the efficiency of the trial proceeding rather than the threat of an inaccurate decision. Id. at 641. The time involved in the introduction of the photographs was minimal. The pictures are few in number and reflect different images of the complainant's injuries. We find it reasonable for the trial judge to have concluded the photographs were not cumulative nor did they cause undue delay. CONCLUSION
Having considered all of the factors involved in the Rule 403 analysis, we conclude the trial court did not abuse its discretion when it overruled appellant's objection and admitted the four photographs. We affirm the trial court's judgment.