Opinion
No. 05-04-00708-CR
Opinion Filed August 29, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 422nd Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 21161-422. Affirmed.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
OPINION
William Franklin Jones III appeals his conviction for the murder of Joe Bob Ashton, Sr. The jury assessed appellant's punishment at 54 years in prison and a $10,000 fine. Appellant complains in seven points of error that the trial court erred by admitting certain evidence against him as well as excluding other evidence, by refusing to charge the jury on the lesser included offense of manslaughter, and by permitting the improper impeachment of a witness. We affirm.
Background
Jones lived on his grandmother's property on a country farm to market road. She agreed to let Ashton live there also. At some point, the family learned that Ashton was manufacturing methamphetamine in a trailer he had moved onto the property, and Ashton was asked to move. Instead of moving the trailer off the property, Ashton moved it farther into the woods out of view. Ashton came back to the trailer and was shot several times and stabbed with a knife. His body was discovered in the woods away from the trailer, rolled in a carpet and covered in mud. The next day, Jones was arrested for Ashton's murder. He gave two statements to police in which he described shooting Ashton several times and stabbing him with a pocket knife when he caught Ashton "cooking dope" in the trailer after he had been asked to leave. Jones said he wrapped Ashton in a carpet, tied him to a car, and dragged him through the mud into the woods. At trial, Jones testified he gave these statements to police because he was concerned about his family's safety, but that the statements were not truthful. At trial, Jones testified that on the night of the shooting, he was outside smoking and heard a noise coming from the area of the trailer. He went to investigate and saw someone, who he thought was a burglar, coming out of the trailer. This person raised his arm toward Jones and appeared to have a pistol in his hand. Jones testified he shot the person once in self-defense. When he realized it was Ashton, Jones testified he went into shock and eventually left to find his dad. He denied shooting Ashton multiple times, stabbing him, wrapping him in the carpet and dragging him into the woods.Admission of Crime Scene Photographs
At trial, Jones objected to the admission of five crime scene photographs as unfairly prejudicial and inflammatory. On appeal, Jones argues the trial court did not conduct the required balancing test when he made his rule 403 objection.Standard of Review Applicable Law
The admissibility of a photograph is within the discretion of the court. Santellan v. State, 939 S.W.2d 155, 173 (Tex.Crim.App. 1997); Kelley v. State, 22 S.W.3d 642, 644 (Tex.App.-Waco 2000, pet. ref'd). An abuse of discretion occurs when the probative value of the admitted photograph is small and its inflammatory potential is great. Ramirez v. State, 815 S.W.2d 636, 647 (Tex.Crim.App. 1991). A trial court's decision to admit photographs into evidence will not be reversed if the ruling falls within the "zone of reasonable disagreement." See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh'g). The trial court is not required to "sua sponte engage in balancing the probative value against the prejudice" when admitting evidence unless "upon sufficient objection invoking Rule 403 by the party opposing admission of the evidence." Santellan, 939 S.W.2d at 173. Jones objected to the photographs as "highly prejudicial and inflammatory." He did not invoke rule 403 and did not argue that the probative value was substantially outweighed by the prejudicial effect. Assuming, without deciding, that appellant complied with rule 403, we will address his argument. Several factors govern the admissibility of photographs at trial: the total number of exhibits offered; the photograph's gruesomeness, detail, size, whether it is black and white or color, and whether it is a close-up; whether the body is naked or clothed; the availability of other means of proof; and other circumstances unique to the individual case. Wyatt v. State, 23 S.W.3d 18, 29 (Tex.Crim.App. 2000). The fact that a photograph is gruesome does not alone render it more prejudicial than probative. Shavers v. State, 881 S.W.2d 67, 77 (Tex.App.-Dallas 1994, no pet.). The trial court is not required to place its findings or conclusions into the record when engaging in this test. Williams v. State, 958 S.W.2d 186, 195 (Tex.Crim.App. 1997). Rather, a judge is presumed to engage in the required balancing test. Williams, 958 S.W.2d at 195 (citing Santellan, 939 S.W.2d at 173).Analysis
The photographs depicted Ashton after he was removed from the carpet by law enforcement officers: fully clothed, covered in dirt with blood on his face, and several wounds on his head and chest. The photographs depicted the right side of the victim's face and upper torso, the right side of the victim's body lying on his back, the left side of the victim's body lying on his stomach, and a handcuff around the victim's right hand. The photographs are in color, approximately three by five inches, do not show an excessive amount of blood, and are not close-ups. The photographs depict no more than the injuries suffered by Ashton. These photographs were five of seven photographs of the victim at the crime scene and were not cumulative of the other photographs admitted into evidence. Additionally, Jones testified at trial that he shot Ashton in self-defense and did not inflict the other wounds, although in his statements he admitted shooting Ashton multiple times. The multiple wounds present in the photographs tend to prove the crime as alleged by the State and as admitted in Jones's statements and refute Jones's trial testimony that he shot Ashton once in self-defense. We conclude the trial court did not abuse its discretion in admitting these photographs. We overrule Jones's first point of error.Admission of Statements to Police
In his second point of error, Jones complains that his first statement to sheriff's deputies in which he admitted to shooting and stabbing Ashton does not meet the statutory requirements to waive his Miranda rights. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon Supp. 2005). Jones gave two statements to police. He moved to suppress both statements on the ground he did not knowingly, intelligently and voluntarily waive his rights prior to giving the statements. The trial court overruled the motion. When the first statement was introduced at trial, the trial court again overruled Jones's objection. On appeal, Jones does not complain about the admission of the second statement. He complains only that the first statement does not comply with article 38.22 because he did not initial each warning on that statement, as he did on his second statement, indicating his confusion and lack of understanding in giving the first statement.Standard of Review Applicable Law
A bifurcated standard of review is applied to a trial court's ruling on a motion to suppress evidence. This standard of review gives almost total deference to a trial court's determination of historical facts and applies a de novo review of a trial court's application of the law to those facts. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). The statement of an accused may be used as evidence against him if it appears the statement was freely and voluntarily made without compulsion or persuasion. Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2001). The statement must show on its face that it complied with the provisions of article 38.22 section 2 of the criminal procedure code, which requires the accused be given his Miranda warnings and that the accused knowingly, intelligently, and voluntarily waive those rights. Tex. Code Crim. Proc. Ann. art. 38.22 § 2.Analysis
At the suppression hearing, a sheriff's deputy testified that before taking Jones's first statement he advised Jones of his Miranda rights and obtained Jones's signature on a card containing the Miranda warnings. Jones dictated his statement, which the deputy transcribed onto a form with preprinted Miranda warnings at the top. After giving his statement, Jones read the Miranda warnings out loud and then read the transcript of his statement silently. The face of the statement shows Jones's signature at the bottom of each page. Above Jones's signature is the language "I have read this statement consisting of 2 page(s), each page of which bears my signature, and I do affirm that all facts and statements contained herein are true and correct." And each page contains language that Jones knowingly, intelligently and voluntarily waived his rights. See Garcia v. State, 919 S.W.2d 370, 387 (Tex.Crim.App. 1996) (op. on reh'g) (preferable practice is for written statement to contain "knowingly, voluntarily and intelligently waive rights" language near or adjacent to accused's signature). Jones presented no testimony at the suppression hearing that would indicate he was confused or misunderstood his rights when he gave the statement. To the contrary, the testimony showed Jones was read his rights, could read and write the English language, read his statement, and voluntarily signed it under no coercion from police. Jones also read out loud the preprinted Miranda warnings on the statement. Additionally, Jones gave a second statement in which he admitted shooting and stabbing Ashton. And Jones does not argue that his second statement was involuntary. We conclude the absence of Jones's initials by each of the warnings does not render Jones's statement involuntary and that the trial court did not abuse its discretion by admitting the statement. We overrule appellant's second point of error.Exclusion of Testimony
Jones next argues the trial court improperly sustained the State's objections to evidence that Ashton was manufacturing methamphetamine in the trailer and had been asked to move.Standard of Review Applicable Law
We review a trial court's decision to exclude evidence under an abuse of discretion standard. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). The ruling should not be disturbed on appeal if it is within the "zone of reasonable disagreement," see id. at 542, or if the trial court's decision is correct based on any theory of law applicable to the case. See Knisley v. State, 81 S.W.3d 478, 481 (Tex.App.-Dallas 2002, pet. ref'd). To preserve error, Jones must have made an offer of proof that showed the substance of the proferred evidence, unless the substance was apparent from the context. Tex. R. Evid. 103(a)(2); Williams v. State, 937 S.W.2d 479, 489 (Tex.Crim.App. 1996). Hearsay is a statement other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted. Tex. R. Crim. Evid. 801(d); Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003).Analysis A. Testimony that Ashton was Asked to Move
During direct examination of Jones in the guilt-innocence stage of the trial, the trial court sustained the State's hearsay objections to the following questions:Do you know whether any of your family members informed Joe Bob Ashton, Sr. to leave the FM90 location?
Were you ever in the presence of any family members who informed Joe Bob Ashton, Sr. that he needed to leave?On appeal, Jones argues the questions did not call for hearsay answers and that the court erred by sustaining the State's hearsay objection. We note that Jones did not make an offer of proof to demonstrate what the testimony would have been if he had been allowed to answer and he did not preserve error. Tex. R. Evid. 103. But to the extent we can glean the substance of the evidence that was excluded, we conclude these questions called for hearsay responses because Jones was asked to testify about a statement made by a third person. See Zuliani, 97 S.W.3d at 595. And even if the answers were not offered for their truth (that Ashton was asked to and agreed to leave the property), Jones does not argue that he was harmed by the court's refusal to allow the testimony. In fact, Jones had earlier testified without objection that Ashton was asked to move. As a result, the testimony Jones complains was erroneously excluded was actually admitted elsewhere during his testimony and Jones has failed to show harm. See Brooks v. State, 900 S.W.2d 468, 473 (Tex.App.-Texarkana 1995, no pet.). We overrule Jones's third point of error.