Opinion
No. 08-16-00033-CR
05-24-2018
THOMAS MCNAIR, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from the 34th District Court of El Paso County, Texas (TC# 20140D04769) OPINION
In a two count indictment, Thomas McNair (Appellant) was charged with murder and tampering with a human corpse with intent to impair its availability as evidence. Following a jury trial, Appellant was convicted and sentenced to 99 years in prison on the murder count and 20 years on the tampering count. In three issues, Appellant contends the evidence was insufficient to support his conviction on both counts and additionally raises two evidentiary issues pertaining to admission of photographs and a demonstrative exhibit. We affirm.
In response to our order dated May 27, 2016, the trial court certified Appellant's right to appeal in this case, but the certification does not bear Appellant's signature indicating that he was informed of his rights to appeal and to file a pro se petition for discretionary review with the Texas Court of Criminal Appeals. See TEX. R. APP. P. 25.2(d). The certification is defective, and has not been corrected by Appellant's attorney, or the trial court. To remedy this defect, this Court ORDERS Appellant's attorney, pursuant to TEX. R. APP. P. 48.4, to send Appellant a copy of this opinion and this Court's judgment, to notify Appellant of his right to file a pro se petition for discretionary review, and to inform Appellant of the applicable deadlines. See TEX. R. APP. P. 48.4, 68. Appellant's attorney is further ORDERED, to comply with all of the requirements of TEX. R. APP. P. 48.4.
FACTUAL BACKGROUND
On September 5, 2014, an employee of the El Paso Electric Company found a burned and decomposing body, later identified as 21-year-old Gerardo Luna, Jr., in the basement of an abandoned building in downtown El Paso. Because electricity was being used without payment, Electric Company employees had previously gone to the building to disconnect service on at least three separate occasions beginning on August 14, 2014. Upon entering the building through an unlocked door around the back, one of the supervisors described seeing a lot of debris—pennies on the floor, empty wine bottles, and clothing tossed in a corner. After entering, he and his counterpart went into the basement to look and see what would be needed for their work, but the area was very dark and they stayed only a few minutes.
On their third visit, which occurred on September 3, 2014, the employees observed graffiti on a wall near a stairwell leading to the basement with the words "Death Awaits You," and an arrow pointing down. On the stairwell, they saw what appeared to be blood on the handrail, on the walls, and pooled in a spot of about eight inches in diameter. At the bottom of the stairwell, they noticed a "terrible stench" emanating from a bathroom in the basement that had no water but had been recently used. Because the employees did not have a large flashlight, they left after minutes and did not investigate further. On September 5, after employees returned to the basement, police were notified of a badly burned and decomposing body found on a mattress in the basement.
After El Paso Police Officers began investigating, they found various items at the scene that were later identified as belonging to Appellant and two other individuals, Jesus Barraza and Britney Harned, (a.k.a. Britney Stewart), who they believed had been living in the building at some point in time. In particular, the police found an identification card belonging to Appellant, along with his backpack, a shirt, and other personal items. Based on the identification card's description of Appellant's size and stature, police initially believed he might have been the unidentified victim found at the scene. On September 8, 2014, after an autopsy identified the victim, police thereafter suspected Appellant had participated in the criminal offense.
After conducting a search on Facebook, the police learned that Stewart had a relationship with Marcus Adkins, who subsequently provided information to the police about the victim's death, and also identified Jerry McGavitt as a possible participant in the crime.
During a subsequent interview with police, Appellant acknowledged that at least some of these items belonged to him.
The Interrogation
On the afternoon of September 9, 2014, after police brought Appellant in for questioning, El Paso Police Department Detective John Armendariz initially asked him if he was sick, injured, or on medication to determine if he would be able to speak freely during an interview. Although the record does not indicate how Appellant responded, Detective Armendariz testified that Appellant appeared to be fully alert, appeared to understand what he was saying, and did not appear to be under the influence of anything. Appellant subsequently asked the detective for a cigarette, and while the two were smoking in the parking lot, Detective Armendariz advised Appellant that the police had already spoken to Adkins, Barraza, and McGavitt about the victim's murder. In reply, Appellant spontaneously stated as follows: "Okay. Well, I did it. I'm the one that slit his throat."
The police picked up Appellant on an outstanding warrant that was pending against him on a separate offense, but advised him at the start of his interview that this was not the reason he had been brought in for questioning.
The First Version of Events
Detective Armendariz and another detective thereafter escorted Appellant inside the police station, and turned on a recorder to interview him. On the recording, Detective Armendariz advised Appellant that they had already done a preliminary investigation into the crime, but they wanted to further clarify some things with him. After reading Appellant his Miranda rights, Appellant stated that he understood his rights, and when asked if he wanted to keep talking, he stated: "Yeah. Might as well get it over with."
Both the tape of the recorded interview as well as a written transcript of the interview were admitted into evidence at trial.
Appellant advised the detectives that he had lived on the street level of the abandoned building where the victim had been found for approximately two and a half months, and that others including the victim, Adkins, Stewart, Barraza, and McGavitt, all of whom were homeless, lived there as well at various times. Although he told the detectives that the victim was "always f*cked up on spice" and had previously stolen money from him, Appellant claimed that approximately a month before the interview, he had given the victim $3,000 to purchase crystal meth, but the victim came back without either the meth or his money. Appellant claimed that because he was upset that the victim had taken his money, he dragged him downstairs into the basement, beat him with a steel pipe several times, which knocked him unconscious; he thereafter placed the victim on a mattress, tied his arms and legs with some fabric, and tied him up around the neck with a bungee cord, which he affixed to a nearby pillar. According to Appellant, he slit the victim's throat with a piece of a broken mirror, and thereafter burned the victim, using lighter fluid that he found in a nearby alley. Appellant recalled that he later changed his clothes, noting that he had "blood spatter" on them, and had not seen his clothes since then.
Appellant told the detectives that he was able to obtain cash by donating plasma on a regular basis. Appellant also told them that he had a pre-existing heart condition caused by an altercation in which he had been stabbed in the heart, and that his heart did not always beat on its own. He claimed that he needed crystal meth to help his heart beat correctly and to keep his "adrenaline running."
The Second Version of Events
Appellant initially claimed that although Adkins, Stewart, Barraza, and McGavitt, were all in the building when the murder took place, he claimed they played no role in the beating or burning of the body. They were there just to help in case the victim tried to run upstairs. When the police advised Appellant that the others had confessed to having a role in the victim's murder, and repeatedly advised him that they did not believe he acted alone, Appellant eventually changed his story, claiming that Stewart had planned the victim's murder for unknown reasons, and that she had elicited agreements from him, Barraza, and McGavitt to carry out the killing. Appellant explained that he did not want to be involved in the killing, but felt that he had no choice but to go along with the others, as they all lived in the building together.
At trial, Detective Armendariz explained that he did not believe that Appellant acted alone in part due to Appellant's small size, noting that McNair was only five foot one, and was much smaller and younger than the other individuals living in the building.
During his interview, Appellant described Stewart as having some kind of "power" over him and the others living in the building, describing her as acting like a "queen bee," as if she believed she was "some royalty from some vampire clan or something."
According to Appellant, Barraza initiated the attack on the victim while he was in the basement, hitting him with a rubber mallet on the back of his skull. Appellant recalled that the victim tried to run up the stairwell, but he and McGavitt pulled him back down, and at some point, began beating him with steel pipes that they had found in the building. Appellant recalled that they put the victim on the mattress, and while the victim struggled to get up, he and Barraza continued to beat him with the pipes, with Appellant repeatedly striking him on his left leg. Eventually, the victim stopped struggling, and agreed to sit on the mattress. Although Appellant could not remember the details, he recalled that all three of them tied the victim to a pillar, adding that he believed he had tied a bungee cord around the victim's neck. Thereafter, at Brittney's "order," and again believing that he had no choice, Appellant stabbed the victim five or six times in the throat, and sliced his throat from left to right, while others held the bungee cord.
After ascertaining that the victim was deceased, Appellant, McGavitt, Barraza, and Stewart went to a nearby bar, where Adkins met up with them. While at the bar, Stewart told them that they needed to burn the victim's body, and thereafter, Appellant, Adkins, and Barraza returned to the building. Barraza wrapped the victim in a blanket, and Adkins then poured lighter fluid on the body; thereafter, using a piece of paper and a cigarette lighter, Appellant lit the blanket on fire. According to Appellant, they laid at least one of the pipes, along with the rubber mallet, on top of the victim's body before setting him on fire. After burning the body, the group thereafter left the building and never returned. When the detectives asked Appellant why he had initially lied to them about acting alone, he responded that he did not want to be known as a snitch or an informant, and that he wanted to "cover" for everyone else and to "take the rap for it."
Appellant advised the detectives that he had not thought about the murder in the ensuing weeks after it occurred, stating that he had no "heart" or "conscience."
At trial, Detective Armendariz testified that it is not uncommon in "multiple-offender" cases for one defendant to claim that he acted alone to avoid getting the other individuals into trouble.
Evidence Found at the Crime Scene
At the crime scene, the police found several items of evidence that were consistent with Appellant's confession, including steel pipes found on the mattress, on or near the victim's body, a bungee cord with blood on it, pieces of mirrored glass near the body, and suspected blood spatters in the stairwell, as well as spatters near the victim's body that were consistent with the victim being hit by an object. The police also obtained samples of suspected blood spatters from the building, but because the victim was so badly burned and decomposed, it was impossible to obtain a DNA sample from his body; therefore, the blood samples could not be positively identified as belonging to the victim, and instead each of the samples came back to the same "unknown male." However, testing on the blood samples excluded Appellant and the other individuals involved in the crime as being contributors.
In addition, the police found a palm print on a mirrored pillar near the victim's body that matched Appellant's fingerprints; they also found other fingerprints in the same area matching those of Stewart, Adkins, Barraza, and McGavitt. The police also collected various items of clothing and other apparel found in the building, including a t-shirt belonging to Appellant, but the t-shirt did not test positive for blood. However, other items, such as a belt belonging to Adkins and clothing belonging to McGavitt, tested positive for blood.
The Autopsy
After the victim's body was discovered, it was transported along with the mattress in a body bag to the county medical examiner's office. The deputy medical examiner, Dr. Janice Diaz-Cavillery, who performed the autopsy on the victim's body, testified that his body was "definitely charred and decomposing at the same time" when it was brought to her, which covered up a lot of the injuries the victim had sustained, and made it difficult to determine which injuries occurred as the result of the fire, and which occurred prior to the fire. For example, she noted that although she observed fractures on the victim's body, she could not tell if they were inflicted before or after he died, noting that heat can fracture bones, making it unclear if the fractures occurred due to trauma or the fire. She also noted that the victim's body had "irregular defects" in his head and skull area, but because of the thermal injuries from the fire, she could not put "a name on those injuries."
Her written report indicated that the fractures were most likely heat-related.
However, Dr. Diaz-Cavillery did testify that it was possible the victim had been beaten with a pipe, and she further noted that he had a rope around his neck, which she cut off during the autopsy. She also testified that it was possible the victim had been stabbed in the neck, but she could not be certain as there was insect activity in his neck area, which had caused "tunnels" in his neck. In addition, she testified that she found fabric in the victim's mouth, and based on her carbon monoxide testing, she believed the victim was mostly likely already deceased when he was burned. She concluded that the victim had died as the result of a homicide by unspecified means.
The Verdict
Following trial, the jury found Appellant guilty of both murder and tampering with a human corpse with intent to impair its availability as evidence, and assessed punishment at 99 years in prison on the murder count, and 20 years on the tampering count, which the trial court ordered to run concurrently. This appeal followed.
DISCUSSION
Appellant raises three issues on appeal. First, in Issue One, Appellant asserts the trial court committed reversible error by admitting a substantial number of photographs—taken at the crime scene and during the autopsy—that were not only irrelevant, but also, inadmissible because their prejudicial effect substantially outweighed their probative value. Second, in Issue Two, Appellant asserts the trial court erred by admitting a demonstrative exhibit prepared by the State that was misleading and unduly prejudicial. And, finally, in Issue Three, Appellant asserts the evidence was insufficient to support his conviction. Because we must render a judgment of acquittal if the evidence was legally insufficient, we will proceed out of order and address Appellant's third issue first.
See generally Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).
SUFFICIENCY OF THE EVIDENCE
In his third issue, Appellant challenges the legal sufficiency of the evidence to support his convictions for both offenses, murder and tampering with a human corpse in order to conceal evidence, asserting the State failed to affirmatively link him to either offense.
Standard of Review
In criminal cases, the legal sufficiency standard articulated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), is the appropriate standard for a reviewing court to apply in determining whether the evidence is sufficient to support a conviction. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (finding no meaningful distinction between the legal and factual sufficiency standards and no justification for retaining both standards) (citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Under that standard, a reviewing court must consider all evidence in the light most favorable to the verdict and in doing so must determine whether a rational justification exists for the jury's finding of guilt beyond a reasonable doubt. Brooks, 323 S.W.3d at 894-95 (citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789). In addition, we treat circumstantial evidence as being as probative as direct evidence and the standard of review is therefore the same for both circumstantial and direct evidence. See Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). A lack of direct evidence is not dispositive on the issue of the defendant's guilt; circumstantial evidence on its own can establish guilt. See Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).
In considering the evidence, we keep in mind that the trier of fact is the sole judge of the weight and credibility of the evidence, and we must presume that the fact finder resolved any conflicting inferences in favor of the verdict and defer to that resolution. See TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Further, we are not permitted to reevaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Our task is to determine whether, based on the evidence and reasonable inferences drawn therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Id.
Analysis
Appellant contends that the evidence presented at trial established, at most, that he had been living in the abandoned building where the victim's body was found, but that nothing linked him directly to the murder, with the possible exception of his confession. However, Appellant argues that his confession was not reliable, as it was the result of a severe mental illness, and contained many inaccuracies and missing details. He contends that given the unreliability of his confession, the jury's verdict was so contrary to the weight of the evidence as to be clearly wrong and unjust, and that the evidence was so weak that no rational jury could have found him guilty of either offense.
Appellant's argument centers on the testimony given by his only witness at trial, Dr. James Schutte, a licensed psychologist, who testified that after reviewing thousands of pages of Appellant's mental hospital records, he believed that Appellant was suffering from a "severe mental illness, namely bipolar disorder." Dr. Schutte explained that bipolar disorder is a severe mood disorder in which a person goes through periods of depression followed by periods of mania, in which their mood becomes elevated. He further explained that when a person experiences a manic phase, he may, among other things, engage in impulsive or erratic behavior, as well as suffer "delusions of grandeur," in which the person has "an inflated view" of himself. He also testified that in extreme cases, a person in a manic phase may become "psychotic," and lose contact with reality and/or have a distorted view of reality, causing them to misinterpret what is occurring, and either exaggerate or embellish the truth. According to Dr. Schutte, it is not always clear when someone is in a manic phase, and they may simply seem to be "very extroverted, very outgoing, very happy [and] very energetic."
Appellant argues that the evidence presented at trial supported a finding that his confession resulted from his bipolar disorder, contending that a review of his recorded interview reveals that many of his mannerisms were consistent with him being in a manic phase during his interview, and that he was likely suffering from delusions of grandeur when he confessed to the murder, as described by Dr. Schutte. He further argues that the evidence presented at trial supports the theory that he provided a false confession, noting that he was the youngest and smallest of the individuals who lived in the abandoned building, and that it was more likely that the others with whom he lived provided him with details of the crime, and that he simply "parroted" back those details during his police interview as a result of his bipolar disorder. As well, Appellant points to the fact that his confession contained "missing or inconsistent" details, as described above, such as his claim that he tied the victim's throat with a bungee cord, rather than a rope, and the fact that a rubber mallet was never found. In addition, Appellant points out that although he claimed during his confession to have hit the victim with a lead pipe, and claimed to have cut him with a shard of glass, his prints were not found on the pipe or on any of the shards of glass found at the scene. He also finds it significant that his fingerprints were not found on any of the items that were used to start the fire. As well, Appellant claims that the medical examiner's testimony was unable to provide any testimony that could corroborate his confession, as she was unable to "reveal whether the acts Appellant described he engaged in actually occurred." In particular, he points out that due to the burned nature of the victim's body, the medical examiner was unable to testify regarding whether the victim had been beaten prior to his death, and/or whether his neck had been sliced, as he claimed to have done during his confession. He therefore concludes that the jury could not have convicted him based on his confession, describing it as being "not plausible," and "not to be believed."
Appellant is correct that there were minor inconsistencies in his confession and that not every aspect of it was corroborated by independent evidence; however, the jury was nevertheless still entitled to rely on the confession in reaching its verdict. Although the law requires a confession to be independently corroborated by evidence that a crime was committed, often referred to as the "corpus delicti" rule, the purpose of this rule is to ensure that a person is not convicted of a crime that never occurred, based solely on that person's extrajudicial confession. See Salazar v. State, 86 S.W.3d 640, 644 (Tex. Crim. App. 2002). The rule was not intended to ensure that all confessions are corroborated in specific details, or to ensure that the suspect does not falsely confess to a crime that did occur but for which he had no culpability—only that the crime actually occurred. Id; see also McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997) ("[T]he corpus delicti of murder is established if the evidence shows the death of a human being caused by the criminal act of another[.]"). There was no doubt that a murder occurred, given the state of the victim's body when it was discovered, and therefore, the corpus delicti rule was satisfied.
Moreover, we conclude that Appellant's confession was in fact accurate in many important respects. As set forth above, at the crime scene, the police found several items of evidence that were consistent with many of the details contained in Appellant's confession, including the steel pipes that were found on the mattress and/or on top of the victim's body, a bungee cord with blood on it, pieces of mirrored glass near the body, and blood spatters in the stairwell as well as near the victim's body that were consistent with the victim being hit by an object. As well, the police found a palm print on a mirrored pillar near the victim's body that matched Appellant's fingerprints, as well as other fingerprints in the area matching those of the other individuals that Appellant identified as being involved in the murder.
Appellant is of course correct that there could have been other reasonable explanations for why his fingerprint was found on the mirror, given the fact that he had admittedly been staying in the building prior to the murder. As well, it is possible that he was suffering from bipolar disorder when he confessed his crimes to the detectives. However, these possibilities do not render the evidence insufficient. As the Court of Criminal Appeals has held, while the State must "affirmatively link" a defendant to an offense, the link need not be "so strong that it excludes every other outstanding reasonable hypothesis except the defendant's guilt." Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995); see also Phelps v. State, 594 S.W.2d 434, 436 (Tex. Crim. App. 1980) (the mere possibility that a defendant's fingerprints may have been left at a time other than the time of the burglary does not necessarily render the evidence insufficient).
In prior opinions, the Court of Criminal Appeals has held that the State was required to exclude all other "reasonable hypothesis" of a defendant's guilt. However, in Brown, the Court held that this standard no longer controls and that instead, "[t]he ultimate consequence is that each defendant must still be affirmatively linked with the drugs he allegedly possessed, but this link need no longer be so strong that it excludes every other outstanding reasonable hypothesis except the defendant's guilt." Geesa v. State, 820 S.W.2d 154,160-61 (Tex. Crim. App. 1991), overruled on other grounds, Paulson v. State,28 S.W.3d 570, 573 (Tex. Crim. App. 2000); see also Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995).
In the present case, the jurors were free to determine for themselves whether Appellant's confession was reliable or not. The jury was made fully aware of inconsistencies and the possibility that Appellant may have experienced a manic phase of his bipolar disorder at the time of his statement. In particular, we note that during closing arguments, defense counsel made these same arguments, suggesting that Appellant confessed to the victim's murder as the result of being in a manic phase of his bipolar disorder, pointing to the inconsistencies in his confession, and arguing that Appellant was delusional at the time he was interviewed, and that he fabricated his role in the killing as the result of his bipolar disorder. In finding Appellant guilty, the jury clearly rejected these arguments, and decided for itself that the confession and other supporting evidence was sufficient to find Appellant guilty. See generally Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (jury was entitled to resolve any contradictions in the evidence in the manner in which it deemed appropriate). Thus, we cannot say that no rational juror would convict on this record. Given our review, we conclude that Appellant's conviction rests on legally sufficient evidence and reasonable inferences drawn therefrom. Appellant's Issue Three is overruled.
THE ADMISSION OF THE CRIME SCENE PHOTOGRAPHS
In his first issue, Appellant contends that the trial court erred by admitting photographs identified as State's Exhibits 85, 88, 91, 92, and 124, that depicted the crime scene and close-up views of the victim's burned body, claiming that they were unduly gruesome, were intended to inflame the passions of the jury, and that any probative value they may have had was substantially outweighed by their prejudicial nature. We disagree.
Standard of Review and Applicable Law
Generally, a photograph is admissible if verbal testimony as to matters depicted in the photograph is also admissible. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007) (citing Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997); Long v. State, 823 S.W.2d 259, 271-72 (Tex. Crim. App. 1991)). Thus, if verbal testimony is relevant, photographs of the same are also relevant. Gallo v. State, 239 S.W.3d at 762. A photograph is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Flores v. State, 299 S.W.3d 843, 857 (Tex. App.—El Paso 2009, pet. ref'd) (citing TEX. R. EVID. 401; Penry v. State, 903 S.W.2d 715, 751 (Tex. Crim. App 1995.)). The identity of the victim and the manner and means of death are facts that are of consequence to the determination of an action. Flores, 299 S.W.3d at 857 (citing Penry, 903 S.W.2d at 751). Therefore, a visual image of the injuries that a defendant inflicted on his victim is evidence that is relevant to the jury's determination. Salazar v. State, 38 S.W.3d 141, 152-53 (Tex. Crim. App. 2001) (photographs were highly probative to show the full extent of the injuries appellant inflicted on the victim); Gallo, 239 S.W.3d at 762; Young v. State, 283 S.W.3d 854, 874-75 (Tex. Crim. App. 2009); see also Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997) (recognizing that autopsy photographs, although often gruesome, are generally admissible unless they depict mutilation of the victim caused by the autopsy itself).
Rule 403 of the Texas Rules of Evidence, on the other hand, allows for the exclusion of otherwise relevant evidence when its "probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." TEX. R EVID. 403; see also Gallo, 239 S.W.3d at 762; Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001). Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Gallo, 239 S.W.3d at 762 (citing Williams, 958 S.W.2d at 196).
A court may consider several factors in determining whether the probative value of photographs is substantially outweighed by the danger of unfair prejudice. Gallo, 239 S.W.3d at 762. These factors include, but are not limited to: the number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close-up, and whether the body depicted is naked or clothed. Id. (citing Williams, 958 S.W.2d at 196). The availability of other means of proof and the circumstances unique to each individual case must also be considered. Id. In addition, a court should consider whether the body has been altered since the crime in some way that might enhance the gruesomeness of the photographs to the accused's detriment. Flores, 299 S.W.3d at 858 (citing Reese v. State, 33 S.W.3d 238, 241 (Tex. Crim. App. 2000)). We review a trial court's decision to admit photographs into evidence under an abuse of discretion standard. See Gallo, 239 S.W.3d at 762 (citing Williams, 958 S.W.2d at 195); see also Young, 283 S.W.3d at 874-75; Penry, 903 S.W.2d at 751; Flores, 299 S.W.3d at 857.
The Trial Court did not Abuse its Discretion in Admitting the Photographs
At trial, the State sought to introduce several photographs the police took of the crime scene, including photographs of the victim's body on top of the mattress, and close-ups of his head and legs, viewed from various angles and distances. Appellant objected to the admission of six of these photographs as being unduly "gruesome." In response to Appellant's objections, the prosecutor stated that the police had taken numerous photographs at the scene, and that there were "stacks of really gruesome photos" that she did not intend to offer, explaining that she was trying to keep the number of photographs to a minimum. The trial court overruled Appellant's objections, noting that the photographs were relevant to the State's case, and that the amount of photographs offered by the State was "pretty minimum in a case of this nature." Appellant expressly stated that he had no objection to the remainder of the photographs.
On appeal, Appellant argues that the trial court erred in admitting five of the six complained-of photographs, contending that the photographs had no probative value, as they did not link him to the offense, and did not illustrate any wounds or injuries suffered by the victim, pointing out that even the coroner testified that she was unable to "determine and locate any evidence of contusions, bruising or fractures" on the victim's body. Appellant also argues that the State had already presented sufficient evidence of the condition of the victim's body when it was discovered, including other photographs of the victim's body, as well as the coroner's testimony and her autopsy report; according to Appellant, the State's offer of these five additional photographs was highly prejudicial and devolved into a "gallery of gruesomeness that was only calculated to inflame the jury and compel them to convict [him] on an improper basis."
Although at trial, Appellant objected to six of the photographs, i.e., Exhibits 85, 88, 91, 92, 124 and 126, on appeal, he only complains about the admission of five of the complained-of photographs, i.e., Exhibits 85, 88, 91, 92 and 124. In particular, Appellant does not argue that Exhibit 126 should have been excluded, and Exhibit 126 is not part of the appellate record. Therefore, we do not include a discussion of the admissibility of Exhibit 126 in our opinion.
There are several problems with Appellant's arguments. First, we note that all five of the complained-of photographs, while perhaps not revealing the exact nature of the victim's injuries, were relevant, as they provided important clues as to the manner and means by which the victim died. In particular, three of the complained-of photographs showed pipes that were found on the mattress or on the victim's body at the crime scene, two showed a ligature around the victim's neck, and one depicted a piece of bungee cord found near the victim's body. As the State points out, it was obligated at trial to prove beyond a reasonable doubt that the offense was committed in substantially the same manner and means as alleged in the indictment. See, e.g., Johnson v. State, 364 S.W.3d 292, 295, 298-99 (Tex. Crim. App. 2012); Ray v. State, 160 Tex. Crim. 12, 266 S.W.2d 124, 128 (1954); Delgado v. State, 677 S.W.2d 776, 778 (Tex. App.—San Antonio1984, no pet.). The indictment in the present case alleged that Appellant murdered the victim by various alternative means, including by striking him with a steel pipe and by wrapping a ligature around his neck. Therefore, the photographs, which depicted these possible murder weapons in close proximity and/or attached to the victim's body, were highly relevant to the State's case. See generally Newbury v. State, 135 S.W.3d 22, 41-44 (Tex. Crim. App. 2004) (discussing the admissibility of photographs to establish the cause of a victim's death); see also Flores, 299 S.W.3d at 858 (concluding that close-up photographs of the victim's body were relevant to show the cause of death as ligature strangulation).
We note that the indictment did not specify whether the ligature was a rope or a bungee cord, and therefore the State could have established guilt by proving that either one of these was used to commit the murder.
We also note that Appellant is incorrect in arguing that none of the photographs linked him to the offense. As set forth above, one of the complained-of photographs, State's Exhibit 92, depicted Appellant's fingerprint in close proximity to the victim's body, and was therefore relevant to demonstrate that Appellant was in fact involved in the commission of the crime. See generally Clayton v. State, 235 S.W.3d 772, 779 (Tex. Crim. App. 2007) (defendant's bloody fingerprints found at a crime scene, although insufficient standing alone to support a finding of guilt, can serve as circumstantial evidence supporting an inference that defendant was the shooter in the victim's murder). As such, this photograph was clearly relevant to establish Appellant's guilt.
As well, we conclude that all five of the photographs were relevant to the question of the trustworthiness of Appellant's confession, i.e., whether he provided an accurate description of the manner in which the crime unfolded. As explained above, Appellant himself put this issue into play at trial by contending that he had fabricated his confession due to the fact that he suffered from bipolar disorder, and was exhibiting signs of being in a manic phase of his disorder when confessing and was suffering from delusions of grandeur at the time. In fact, Appellant's own attorney relied on one of the photographs during his closing argument to challenge the trustworthiness of the confession, pointing out that the photograph depicting a rope around the victim's neck conflicted with Appellant's statements during his interview that he had wrapped a bungee cord, rather than a rope, around the victim's neck. Conversely, the photographs depicting the pipes on the mattress tended to support the reliability of Appellant's confession in which he claimed that he and McGavitt had beaten the victim with steel pipes. As Appellant himself recognizes, even the medical examiner had difficulty in determining the nature of the victim's wounds given the fact that the victim's body was so badly charred and decomposed when it was discovered. Therefore, these photographs allowed the jury to decide these two key issues for themselves in this difficult case, i.e., the manner and means by which the victim died and the trustworthiness of Appellant's confession, and were therefore a necessary part of the State's case.
Further, we note that although the jury also heard testimony from witnesses describing the crime scene and the victim's injuries, this does not reduce the relevance of the "visual depictions" portrayed in the photographs themselves. Gallo, 239 S.W.3d at 762. To the contrary, the photographs tended to corroborate the State's case and were therefore highly relevant for this reason alone. See, e.g., Cohn v. State, 849 S.W.2d 817, 820-21 (Tex. Crim. App. 1993) (evidence corroborating the victims' testimony was relevant and therefore admissible at trial).
We, of course, acknowledge that despite their relevancy, the photographs were in fact gruesome in nature. However, the fact that photographs may be gruesome, does not, standing alone, render them more prejudicial than probative. Flores, 299 S.W.3d at 858 (citing Shavers v. State, 881 S.W.2d 67, 77 (Tex. App.—Dallas 1994, no pet.)). The photographs did nothing more than depict the disagreeable reality of the crime scene, and instead simply portrayed the "condition of the victim due to the injuries inflicted." See generally Young, 283 S.W.3d at 874-75 (finding that trial court did not err in admitting photograph of crime scene); see also Dawkins v. State, ___S.W.3d ___, No. 08-13-00012-CR, 2016 WL 5957311, at *11 (Tex. App.—El Paso Oct. 14, 2016, no pet.) (recognizing that "[j]urors are constitutionally called to assess the guilt or innocence of their peers, and images of death and tragedy are par for the course"); Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999) (finding crime-scene photographs admissible despite their gruesome nature, where they depicted the "disagreeable realit[y] ... of the brutal crime" that was committed, noting that it was precisely because of this depiction of the reality of the offense that make the photographs probative of various aspects of the State's case); Dawkins, 2016 WL 5957311, at *11 (holding that autopsy photographs, although gruesome, were admissible to assist the jury in determining the extent of the victim's injuries, to assist them in understanding the coroner's testimony, as well as to determine the coroner's credibility, which was challenged by the defendant at trial); see also Rayford v. State, 125 S.W.3d 521, 529 (Tex. Crim. App. 2003) (noting that autopsy photographs are generally admissible unless they depict some mutilation caused by the autopsy itself). To hold that the photographs were not admissible merely because they depicted a gruesome murder scene would allow Appellant to profit from his actions in burning the victim's body and leaving it to decompose to the point of virtual non-recognition. See generally Chamberlain, 998 S.W.2d at 237 (citing Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995) (where the "power of the visible evidence emanates from nothing more than what the defendant has himself done we cannot hold that the trial court has abused its discretion merely because it admitted the evidence").
We also agree with the State that any danger of prejudice resulting from the admission of the photographs was tempered by the fact that the prosecutor carefully explained the reason for the admission of each photograph, describing what each photograph showed, and in particular, pointing to the nature of the weapons depicted in the photographs. Williams v. State, 301 S.W.3d 675, 690-91 (Tex. Crim. App. 2009) (finding it significant that the prosecutor explained the reason for the admission of each photograph in determining that the defendant was not prejudiced by their admission). We therefore conclude that there was little danger that the jury would have used the photographs for any irrational or otherwise improper purpose.
And finally, we disagree with Appellant's argument that the photographs were cumulative in nature. As the State points out, only three exhibits, State's Exhibits 85, 86, and 88, depicted the deceased on the mattress with the pipes laying on top of him. Similarly, only three exhibits, State's Exhibits 91, 120, and 124, depicted a rope or ligature around the victim's neck. Moreover, as the State points out, the State limited its presentation to a total of eleven crime scene photographs depicting the victim's body, a relatively low number of photographs, particularly given the difficult nature of determining the victim's injuries; and as Appellant himself concedes, the State spent very little time offering those photographs into evidence.
Accordingly, we conclude that the trial court did not abuse its discretion in admitting the complained-of photographs. Appellant's Issue One is overruled.
THE ALLEGEDLY MISLEADING EXHIBIT
In his second issue, Appellant contends that the trial court erred by admitting State's Exhibit 113, which was a three-column table intended to assist the jury by summarizing lab information with respect to 13 swabs that were collected in the building where the victim's body was discovered. The first column simply contained an item number assigned to each of the thirteen swabs that were collected. The second column contained a general description of the location where the item was found. The third column indicated whether the swab was submitted for lab testing, and if it was tested, the column included preliminary test results. Some items showed a "presumptive positive" for blood by noting the term "+blood." And when applicable, the result also indicated whether the blood was linked to any DNA profile, and in particular, whether it was linked to the "unknown male" discussed above.
At trial, Christine Ceniceros, a forensic pathologist with the Texas Department of Public Safety who conducted the testing, acknowledged that when testing on a sample resulted in a "presumptive positive" for blood, the result did not necessarily mean that the sample in fact contained human blood, but could instead contain animal blood. In addition, she acknowledged that without further testing, it was possible the test results could have rendered a "false positive," particularly if certain metals were present in the sample. Ceniceros explained that additional DNA analysis was necessary in order to confirm that a sample contained human blood.
At trial, Appellant objected to the admission of this exhibit, arguing that it was misleading, particularly with respect to one of the blood samples, labeled as Item #JV-14, which represented a blood swab that was collected from a shard of mirrored glass found in the building near the victim's body, and which in turn, had the term, "+blood," listed in the lab results column. Appellant pointed out that no additional testing had been done on this sample, and argued that based on Ceniceros' own testimony, it was misleading to place the "+blood" symbol next to that swab, given the possibility of a false positive. Appellant further argued that any probative value the exhibit might have had was outweighed by the prejudicial effect given its allegedly misleading nature.
The prosecutor countered that the exhibit was not misleading, as the analyst made it very clear to the jury what the term "+blood" meant, and overtly acknowledged the possibility of a false positive. The trial court agreed with the State, and allowed the State to admit the exhibit as an aid to assist the jury, advising Appellant's counsel that he could cross-examine Ceniceros about the accuracy of the exhibit in order to further clarify the matter for the jury.
Thereafter, both the State and Appellant elicited testimony from Ceniceros, who confirmed in general that there was a possibility of a test result yielding a false positive. Thereafter, on cross- examination, defense counsel expressly questioned Ceniceros about the test results for JV-14, and she acknowledged that although the testing on JV-14 had yielded a "presumptive positive for blood," it was not tested for DNA, and therefore, she could not say with certainty that the sample actually contained blood. She further acknowledged that it might have been more accurate to place the term, "?blood," rather than "+blood," next to the column for JV-14.
Appellant contends that the trial court abused its discretion in admitting the exhibit, reasserting his argument that the exhibit was misleading due to Ceniceros' own admission that the test result conducted for the JV-14 sample was inconclusive, as no DNA testing had been conducted on the sample. In support of his argument, Appellant relies primarily on Rule 403 of the Texas Rules of Evidence, which, as set forth above, authorizes a trial court to exclude evidence that is otherwise relevant if its probative value is "substantially outweighed" by the danger that it would result in unfair prejudice, a confusion of the issues, or would result in "misleading the jury[.]" TEX. R. EVID. 403.
Standard of Review and Applicable Law
Demonstrative evidence is admissible "to aid the jury in understanding oral testimony adduced at trial." See Fletcher v. State, 902 S.W.2d 165, 167 (Tex. App.—Houston [1st Dist.] 1995, pet. ref'd) (citing Simmons v. State, 622 S.W.2d 111, 113-14 (Tex. Crim. App. 1981); Jackson v. State, 772 S.W.2d 459, 466 (Tex. App.—Beaumont 1989, no pet.)). Demonstrative evidence has no independent relevance to the case, and is instead offered to help explain or summarize a witness's testimony or to put events and conditions into a better perspective. See Torres v. State, 116 S.W.3d 208, 213 (Tex. App.—El Paso 2003, no pet.). Demonstrative evidence is admissible to serve as a visual aid or illustration if it meets the tests of relevancy and materiality, as well as the limitations imposed by Rule 403 of the Texas Rules of Evidence. See Hartsock v. State, 322 S.W.3d 775, 778 (Tex. App.—Fort Worth 2010, no pet.) (citing Baker v. State, 177 S.W.3d 113, 123 (Tex. App.—Houston [1st Dist.] 2005, no pet.)); see also Simmons, 622 S.W.2d at 113 (visual, real, or demonstrative evidence is admissible in a criminal case if it has evidentiary value, i. e., if it sheds light on the subject at hand). To establish the relevancy of demonstrative evidence, the proponent must first authenticate it, and is then required to establish that the evidence is fair and accurate and that it helps the witness to demonstrate or illustrate his testimony. Torres, 116 S.W.3d at 213; see also Hartsock, 322 S.W.3d at 779.
A trial court's admission of demonstrative evidence is reviewed under an abuse-of-discretion standard. See Kelly v. State, 824 S.W.2d 568, 574 (Tex. Crim. App. 1992); Montgomery v. State, 810 S.W.2d 372, 390-93 (Tex. Crim. App. 1990) (op. on reh'g); see also Onwukwe v. State, 186 S.W.3d 81, 85 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (holding that trial court did not abuse its discretion in admitting demonstrative evidence); Orrick v. State, 36 S.W.3d 622, 625 (Tex. App.—Fort Worth 2000, no pet.) (finding no abuse of discretion in admitting demonstrative evidence at trial); Baker v. State, 879 S.W.2d 218, 220 (Tex. App.—Houston [14th Dist.] 1994, pet. ref'd) ("The admission of demonstrative evidence rests within the sound discretion of the trial court."); see generally Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006) (noting that trial courts are in the best position to decide questions of admissibility of evidence). The trial court does not abuse its discretion in admitting demonstrative evidence if its ruling lies within the "zone of reasonable disagreement." Montgomery, 810 S.W.2d at 391.
When determining whether to admit or deny evidence, whether demonstrative or otherwise, which might have a tendency to mislead the jury or otherwise cause unfair prejudice, the trial court must look to Rule 403, and balance the following factors: (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 merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006); see also Airheart v. State, No. 08-11-00037-CR, 2012 WL 1431762, at *5-6 (Tex. App.—El Paso Apr. 25, 2012, pet. ref'd) (not designated for publication) (applying the Gigliobianco factors in determining whether to admit an allegedly misleading exhibit). "[Rule 403] envisions exclusion of evidence only when there is a 'clear disparity between the degree of prejudice of the offered evidence and its probative value.'" Hammer v. State, 296 S.W.3d 555, 568-69 (Tex. Crim. App. 2009) (quoting Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)).
Exhibit 113 was not Unduly Misleading
Appellant contends that all of the Gigliobianco factors warranted exclusion of Exhibit 113, with the exception of the sixth factor, recognizing that the presentation of the exhibit did not consume an inordinate amount of time. In particular, Appellant argues that the exhibit had very little, if any, probative value, particularly with respect to the blood sample found in JV-14, i.e., the shard of glass found near the victim's body, given the fact that there was no confirmation there was DNA present nor real probability it contained human blood. Appellant therefore concludes that the exhibit, with its indication that the shard tested positive for blood, may have misled the jury into thinking that this key piece of evidence did in fact have human blood on it, and may have caused them to conclude that it was used as a murder weapon, when in fact the evidence was inconclusive on this point. He therefore concludes that the exhibit was unduly confusing and misleading, and may have caused the jury to convict him on an improper basis, rendering the exhibit's probative value, if any, outweighed by its prejudicial nature.
We conclude, however, that the exhibit did in fact have probative value for the jury. As the State points out, the exhibit, while perhaps imperfect in nature, served as a visual aid to the jury to help them understand the testing that was done on the suspected blood swabs found in the building. As Ceniceros explained in her testimony, the blood sample found on the shard of glass did in fact test presumptively positive for blood, as accurately reflected in the exhibit. This was highly relevant to the State's case, as the positive blood test not only corroborated Appellant's confession in which he expressly told the detectives that he had used a piece of glass to slice the victim's throat, but also served to assist the State in proving that Appellant used the glass as a murder weapon, as alleged in the indictment.
As set forth above, the indictment alleged that Appellant committed the murder by various alternative means, including by stabbing the victim in the neck with a piece of glass or mirror.
Moreover, we do not believe that the jury was in any way misled by the exhibit. Evidence may be considered misleading under Rule 403 if the jury is not properly equipped to judge the probative force of the evidence. See generally Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007) (citing Montgomery, 810 S.W.2d at 389). In the present case, however, the jury was made fully aware by Ceniceros' testimony that she did not conduct DNA testing on the blood sample found on the shard of glass, and of the possibility that the test results therefore could have rendered a false positive; the jury was therefore fully aware of the fact that the testing done on the shard did not dispositively confirm that it was used as a weapon in the murder. As well, defense counsel emphasized this point during closing argument by pointing out that Ceniceros was unable to testify with certainty that there was in fact blood on the shard of glass. We therefore conclude that the jury was properly equipped to judge the probative force of the evidence, and there was very little danger, if any, that the jury would have been misled or confused about the probative force of the exhibit.
In addition, we agree with the State that any error in admitting the exhibit was harmless in nature, as other evidence of the results of the testing done on the shard of glass was admitted, without objection, at trial. In particular, the State presented the analyst's original report, labeled as State's Exhibit 111, without objection, which contained the results of the testing done on the various blood swabs, including the shard of glass, and served as the basis for the creation of Exhibit 113. This exhibit expressly included the finding that the testing done on JV-14 yielded a presumptive positive for the presence of blood. As well, Ceniceros specifically testified at trial, without objection, that the test results on the shard of glass resulted in a "presumptive positive for blood."
Accordingly, as the evidence of the test results were admitted at other stages in the proceeding, we find that any error in the admission of Exhibit 113 was harmless in nature. See, e.g., Rodriguez v. State, 90 S.W.3d 340, 374 (Tex. App.—El Paso 2001, pet. ref'd) (even if trial court erred in admitting a summary, defendant was not harmed by its admission, where the records underlying the summary were in evidence and witnesses testified about the summary, rendering the summary merely duplicitous of that evidence); Wheatfall v. State, 882 S.W.2d 829, 838-40 (Tex. Crim. App. 1994) (holding that although trial court erred by admitting five-page handwritten summary of appellant's violent criminal history, error was harmless because summary was duplicative of other evidence of his criminal history and because jury had access to summarized exhibits); Markey v. State, 996 S.W.2d 226, 232 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (error in admitting prosecutor's handwritten list of symptoms of intoxication made during witness's testimony was harmless when appellant did not argue that list was erroneous or misleading and "jury was able to accept or reject the prosecutor's characterization of the testimony as it occurred"). Appellant's Issue Two is overruled.
CONCLUSION
The trial court's judgment is affirmed.
GINA M. PALAFOX, Justice May 24, 2018 Before McClure, C.J., Rodriguez, and Palafox, JJ. (Do Not Publish)