Opinion
No. 05-04-00985-CR
Opinion Filed January 17, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-01600-NS. Affirmed.
Before Justices WHITTINGTON, FRANCIS, and LANG.
OPINION
Ted Alvin Petty appeals his conviction for capital murder. In three issues, appellant contends the trial court erred in: (1) charging the jury on the law of parties; (2) admitting autopsy photographs of a second victim; and (3) overruling his objection to the State's final argument. We affirm. On June 17, 2003, convenience store clerks Messelle Gebremichael (the complainant) and Habtamu Ayane were shot and killed during a robbery. A customer in the store, David McMorris, survived the crime and testified at appellant's trial. According to McMorris, two men entered the store and purchased orange juice. After leaving briefly, the men and a companion returned to commit the robbery. McMorris could not identify the men because he complied with their order to lie on the floor and "bury" his face. While lying on the floor, McMorris heard the clerks complying with the robbers' demands and felt someone going through his pockets. A robber then said, "[g]rab a drink and let's ride." Ayane pleaded, "No. No. No." Then the robbers fired multiple gunshots, striking the complainant twice and Ayane four times. Before the robbers departed, McMorris heard three "click" sounds behind his head. McMorris is familiar with guns and he thought the "click" sounds were made by a revolver misfiring. The robbers escaped with $161 from the store, $125 from McMorris, and McMorris's distinctive cigarette lighter. The store did not have video surveillance cameras. One of the robbers, Charles Akeen, left a latent fingerprint on a cooler door. On June 19, 2003, Dallas police officers arrested appellant after observing him trying to hide marijuana during a traffic stop. After removing appellant and his three passengers from his car, the officers discovered a handgun in plain view in a female passenger's purse, a .38 caliber RG revolver sticking out of the backseat cushions, and a box of ammunition. In the glove compartment, the officers discovered a .38 caliber round with a firing pin impression. Passenger Devontay Carter was carrying about $800 in small bills. After initially denying it, appellant later admitted to police that the RG revolver was his gun. Subsequent ballistics tests established that appellant's RG revolver had fired both of the bullets recovered from the body of the complainant, and two of the four bullets taken from Ayane's body, including the bullet that killed him. Appellant gave police a voluntary statement admitting he was present when Tarnarius Fisher, Charles Akeen, and Zachary Bundage robbed the store and murdered the clerks. According to appellant's statement, he and the three robbers were driving around when he decided to stop at the store to buy a beer. As he was leaving the store, his companions met him at the door and announced their intent to commit the robbery. Appellant stood by the door and told the robbers, "Ya'll need to do what you going to do and let's go." Appellant consented to a search of his residential motel room. When the officers entered the room, they found Bundage, Fisher, and several other people. Fisher was in bed with a woman when the police entered. The officers found a .32 caliber Astra semiautomatic handgun under Fisher's pillow. Handgun ammunition was scattered around the room. Ballistics tests confirmed that the Astra had fired the other two bullets recovered from Ayane's body. Officers later stopped Akeen who was seen driving away from the motel shortly before the search. After arresting Akeen for driving without a license, the officers searched the car and discovered a handgun under the driver's seat. At the time of his arrest, Akeen was carrying McMorris's cigarette lighter in his pocket. During appellant's trial, Bundage identified himself, appellant, Fisher, and Akeen as the robbers. Bundage related that the four men had been riding around in a car appellant was driving. Appellant was complaining that he was broke and needed money. Appellant and Fisher were armed. Bundage identified the RG revolver as appellant's gun. Appellant drove to the convenience store. Appellant told Akeen and Bundage to go into the store, buy some orange juice, and look for security cameras. Akeen and Bundage entered the store and bought four drinks. As Akeen and Bundage were leaving, appellant and Fisher entered with their guns drawn and ordered the clerks to give them money. Although the clerks cooperated, appellant and Fisher shot them. Bundage testified appellant shot the complainant. Appellant bent down over McMorris, but Bundage could not see what appellant was doing. Before leaving, Fisher took two six-packs of beer. Devontay Carter testified that the RG revolver looked like appellant's handgun. Carter had never seen Akeen armed and he could not recall seeing Fisher or Bundage with a gun. Carter testified that appellant had talked on the night of the murders about someone "hitting a lick" and told him on the following day to watch the news because someone had "hit a lick." Although Carter was unable to determine exactly what appellant meant, police detective Robert Ermatinger testified that "hitting a lick" meant committing a robbery. In his first issue, appellant contends the trial court erred in instructing the jury, over his objection, on the law of parties because the issue was not raised by the evidence. Appellant contrasts his written statement with Bundage's testimony and concludes the jury had to believe one version or the other. Appellant asserts that if the jury believed his voluntary statement, then he was not guilty at all. If, on the other hand, the jury believed Bundage's testimony, then appellant was the principal actor in the complainant's murder. Under either scenario, appellant contends, the evidence did not raise an issue that he acted as a party to the offense. The State responds that the jury need not believe in its entirely either appellant's statement or Bundage's testimony. The State points to evidence showing appellant may have robbed McMorris, his gun was used in the crime, and he stood by the door and verbally urged the other participants to "do what you going to do and let's go." Thus, the State concludes, the instruction on law of the parties was warranted. A person may be convicted as a party to offenses committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003). A person is criminally responsible for an offense committed by another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a)(2). See also Montoya v. State, 810 S.W.2d 160, 162 (Tex.Crim.App. 1989) (finding evidence sufficient under law of parties to support defendant's capital murder conviction where co-defendant murdered victim during course of robbery). The trial court may submit an instruction on the law of parties when the evidence supports both primary actor and party theories of criminal responsibility. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App. 1996) (op. on reh'g). Evidence is sufficient to support a conviction under the law of parties where the actor is physically present at the commission of the offense and encourages the commission of the offense either by words or other agreement. Id. In determining whether a defendant participated in an offense as a party, the court may examine the events occurring before, during, and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to commit the offense. Id. Participation as a party may be shown by circumstantial evidence. See Beardsley v. State, 738 S.W.2d 681, 684 (Tex.Crim.App. 1987). Undisputed evidence establishes that appellant was present at the time of the murders and that his handgun was used during the offense. The jury has the right to evaluate the credibility of appellant's statement and Bundage's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). The jury may find credible all, a portion, or none of the evidence presented. Id. Depending upon its assessment of appellant's and Bundage's credibility, the jury could draw any number of reasonable deductions regarding whether appellant committed the murder as a principal, acted as a party to the offense, or was an innocent bystander. Therefore, we cannot conclude the trial court erred in submitting an instruction on the law of the parties to the jury. See Ransom, 920 S.W.2d at 302. We overrule appellant's first issue. In his second issue, appellant contends the trial court erred in admitting into evidence autopsy photographs of Ayane. Citing Prible v. State, appellant contends that the prejudicial effect of the photographs far outweighed their probative value because the medical examiner did not need the photographs to explain her testimony and the photographs unfairly focused the jury's attention upon the death of Ayane rather than upon the death of the complainant. See Tex. R. Evid. 403; Prible v. State, 175 S.W.3d 724 (Tex.Crim.App. 2005), cert. denied, 126 S.Ct. 481 (2005). The State responds that the autopsy photographs are probative in that they depict wounds inflicted by appellant's gun and thus helped the medical examiner explain Ayane's wounds and cause of death. By showing appellant's intent to kill Ayane, the State contends, the photographs also help the State prove his intent to kill the complainant. By showing that appellant's gun was used to shoot Ayane, the State further contends, the photographs also controvert his written statement that he did not participate in the offense. The State denies the photographs are unduly prejudicial. The State points out that the photographs are close ups depicting only the wounds on Ayane's back, the body was cleaned, and the photographs do not reveal any autopsy damage. Because the jury had already heard testimony about Ayane's death and his appearance at the crime scene, the State suggests the photographs minimally impacted the jury. Lastly, the State contends that Prible is distinguishable because the photographs in that case depicted the dissected bodies of children where there was no dispute about the manner of death. Photographs are admissible if there are elements of the photographs that are genuinely helpful to the jury in making its determinations and any emotional and prejudicial aspects of the photograph do not substantially outweigh the helpful aspects. Erazo v. State, 144 S.W.3d 487, 491-92 (Tex.Crim.App. 2004). In determining or reviewing the admissibility of a photograph, the courts consider the following non-exclusive set of factors: (1) the probative value of the photographs; (2) the potential of the photographs to impress the jury in some irrational, yet indelible way; (3) the time needed to develop the evidence; (4) the proponent's need for the evidence; (5) the number of photographs; (6) the size of the photographs; (7) whether the photographs are in color or in black and white; (8) whether the photographs are gruesome; (9) whether the bodies depicted are clothed or naked; and (10) whether the body has been altered by autopsy. Id. at 489. Determinations of the admissibility of photographs lie within the trial court's sound discretion. Rayford v. State, 125 S.W.3d 521, 529 (Tex.Crim.App. 2003). The trial court does not abuse its discretion as long as its determination lies within the zone of reasonable disagreement. Id. Generally, autopsy photographs are admissible unless they depict mutilation of the victim caused by the autopsy itself. Id. The contested photographs depict close-up views of Ayane's two gunshot wounds inflicted by appellant's RG revolver. The trial court excluded those autopsy photographs that depict the wounds inflicted upon Ayane by the Astra handgun. The photographs are not gruesome and depict only the relevant areas of Ayane's body. The medical examiner referred to the photographs in explaining to the jury the wounds inflicted and Ayane's cause of death. In Prible, the defendant was convicted of capital murder for shooting and killing two people during the same criminal offense. Along with the two complainants, the State's evidence established that the defendant also murdered the complainants' three children in setting a fire to cover up the murders of the parents. The defense objected to autopsy photographs depicting the children's dissected body parts, but did not object to photographs taken before the autopsies commenced. See Prible, 175 S.W.3d at 735-36. The court of criminal appeals concluded the trial court erred in admitting the post-autopsy photographs of the children's dissected organs but found the error to be harmless, in part because "the jury had already seen and heard about the disturbing circumstances of the children's deaths through properly admitted photographs and testimony." See id. at 737. Appellant concedes that the photographs admitted in Prible were more distressing than the current photographs. Moreover, we agree with the State that the Ayane autopsy photographs were probative in that they were genuinely helpful to the jury in sorting out how the weapons were used during the robbery and in evaluating the conflicting evidence of appellant's role in the robbery. Finally, as in Prible, the jury had already been exposed to graphic testimony about Ayane's death and had seen similar autopsy photographs of the complainant's wounds. Because the photographs at issue are both less prejudicial and more probative than the photographs at issue in Prible, and because admission of the photographs was harmless under the circumstances, we conclude the trial court did not abuse its discretion in admitting into evidence the limited number of probative photographs from Ayane's autopsy. See Harris v. State, 661 S.W.2d 106, 107-08 (Tex.Crim.App. 1983) (concluding the trial court did not err in admitting autopsy photographs that illustrated and clarified medical examiner's testimony about victim's injury). We overrule appellant's second issue. In his third issue, appellant contends the trial court erred in overruling his objection to the following jury argument: "When you think about that night and when those families think about that night, a river of tears cried for the loss of life could not relieve the grief and devastation. They're [sic] final screams will be heard every night by their loved ones." Appellant contends the prosecutor was arguing matters outside the record and asked the jury to place themselves into the shoes of the victim. The State responds that the argument was a reasonable deduction from the testimony of the complainant's wife and brother and, even if erroneous, was harmless. The State's jury argument is limited to four general areas: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answering the defense's argument; and (4) pleas for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000). Even when an argument exceeds the permissible bounds of these approved areas, it will not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. Id. at 115. The remarks must have been a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial. Id. If the prosecution strayed from the approved areas of argument and commented upon matters outside the record, we review the error under the standard for nonconstitutional error. Martinez v. State, 17 S.W.3d 677, 692 (Tex.Crim.App. 2000). Nonconstitutional errors that do not affect substantial rights must be disregarded. Tex.R.App.P. 44.2(b). In evaluating harm, we consider three factors: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the certainty of conviction absent the misconduct. Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998) (op. on reh'g). The prosecutor enjoys wide latitude in drawing inferences from the evidence provided that the inferences drawn are reasonable, fair, legitimate, and offered in good faith. Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App. 1996). Bundage testified that Ayane was frightened and stunned and his hands were shaking during the robbery. Bundage also testified to hearing the "last scream" of the clerks as they were shot. McMorris testified that Ayane repeatedly pleaded "No" before being shot. Given testimony from the complainant's wife and brother attesting to the affection and esteem they held for him, the prosecutor's description of the pain and suffering of the complainant's relatives was a reasonable deduction from the evidence. See Wesbrook, 29 S.W.3d at 115. Moreover, assuming, without deciding, that the prosecutor exceeded the permissible bounds of jury argument, we are convinced that the error was harmless. The trial court overruled appellant's objection, so no curative measures were adopted. Nevertheless, viewed in the context of this case, the prosecutor's comment was not harmful error. The State did not dwell upon the relatives' anguish or the complainant's suffering. Given the solid evidence showing appellant committed the offense, we conclude appellant's conviction was all but assured in spite of the contested argument. Thus, the alleged error was harmless. See Mosley, 983 S.W.2d at 259. We overrule appellant's third issue. We affirm the trial court's judgment.