No. 05-02-01272-CR
Opinion Filed December 18, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-73722-VP. Affirmed.
Before Justices MOSELEY, RICHTER, and FRANCIS
MEMORANDUM OPINION ON MOTION FOR REHEARING
Opinion By Justice MOSELEY.
We deny appellant's motion for rehearing. On our own motion, we withdraw our memorandum opinion of November 4, 2003 and vacate our judgment of that date. This is now the opinion of the Court. A jury convicted Isaac R. Rodriguez of the capital murder of Rosa Cordray. As required by law, punishment was assessed at life imprisonment. Rodriguez appeals. In five issues, Rodriguez complains that the evidence was factually insufficient to identify him as the shooter, the pretrial identification procedures used were suggestive and resulted in a denial of due process, the trial court erred in admitting evidence of an irrelevant extraneous offense and, if it was relevant, the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, and the trial court erred in admitting autopsy photographs of the victim. The background of the case and the evidence adduced at trial are well-known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm the trial court's judgment. In his first issue, Rodriguez challenges the factual sufficiency of the evidence to support his conviction. Specifically, Rodriguez argues the evidence was factually insufficient to identify him as the person who shot Cordrey. In conducting our factual sufficiency review, Rodriguez asks us to not consider the testimony of four witnesses identifying him as the shooter because their testimony was tainted by allegedly improper pretrial identification procedures. He argues that the allegedly tainted identification testimony was improperly admitted, and that the appellate court should not consider it in the context of his factual sufficiency issue. The purpose of a factual sufficiency review is to "review the fact finder's weighing of the evidence" within the standards established by the court of criminal appeals. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Those standards are designed to protect the integrity of the fact finder's role in considering and weighing the evidence. We "review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact." Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000) (emphasis added); Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996).We review the jury's weighing of that evidence to determine whether the jury's finding is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Conner v. State, 67 S.W.3d 192, 198 (Tex.Crim. App. 2001); Jones, 944 S.W.2d at 648. Thus, in making this determination we must consider all the evidence the jury considered, i.e. all the evidence admitted at trial, regardless of whether it was admitted properly. Rodriguez argues that because the remedy for legal insufficiency (reversal and acquittal) is different from the remedy for factual insufficiency (reversal and remand for new trial), the rule requiring review of all the evidence, whether properly or improperly admitted, should not apply where the appellant requests only a factual sufficiency review. We disagree. As the court of criminal appeals said with regard to legal sufficiency:
In the event a portion of this evidence was erroneously admitted, the accused may complain on appeal of such error. If his complaint has merit and the error is reversible, . . . a new trial should be ordered. But jurors do not act irrationally taking such evidence into account, since they are bound to receive the law from the trial judge. All evidence which the trial judge has ruled admissible may therefore be weighed and considered by the jury, and a reviewing court is obliged to assess the jury's factual findings from this perspective.
Thomas v. State, 753 S.W.2d 688, 695 (Tex.Crim.App. 1988); see Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App. 1993). The logic set forth in Thomas applies to both legal and factual sufficiency analyses. To determine whether, in light of the evidence presented, the fact-finder's decision is factually insufficient because it is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias," see Conner, 67 S.W.3d at 198, we must look at all the evidence the fact-finder considered. To do otherwise would allow the appellate courts to re-weigh the evidence by ignoring evidence that, rightly or wrongly, the fact-finder considered in reaching its decision. Thus, even though the applicable standard of review differs between a legal and a factual sufficiency challenge, the scope of review-all of the evidence-remains the same, and is unaffected by the differences in remedies flowing from legal and factual insufficiency determinations. Rodriguez cites no cases where courts have excluded improperly admitted evidence from a factual sufficiency review. Several courts of appeal have rejected similar arguments. See Morales v. State, 95 S.W.3d 561, 563 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd) (rejecting argument that defendant's allegedly improper confession be excluded from factual sufficiency review); Arzaga v. State, 86 S.W.3d 767, 777-78 (Tex. App.-El Paso 2002, no pet.) ("As in the case of legal sufficiency review, we consider all of the evidence weighed by the jury, including both admissible and inadmissible evidence."); Camarillo v. State, 82 S.W.3d 529, 537 (Tex. App.-Austin 2002, no pet.) (rejecting argument that defendant's oral statement to police should be excluded from factual sufficiency analysis, stating, "The cases discussing factual sufficiency review require that there be an impartial review of all the evidence."). Therefore, we reject Rodriguez's argument that evidence the jury heard can be excluded from a factual sufficiency analysis. Accordingly, we review all of the evidence, both for and against the finding, in a neutral light to determine whether: (1) the evidence of guilt is so obviously weak as to undermine confidence in the fact finder's determination; or (2) the evidence of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 10-11. We may not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. Jones, 944 S.W.2d at 648. An appellate court may disagree with the fact finder's determination only when the record clearly indicates such a step is necessary to avoid a manifest injustice. Johnson, 23 S.W.3d at 9. Four witnesses identified Rodriguez at trial. All of the witnesses were positive in their identification of Rodriguez at trial. Rodriguez asserts that two of these witnesses were not credible. He points out that one witness claimed he was shown three pages of six photographs from which he picked Rodriguez's photograph when he was actually shown only one page of six photographs. He also points out that the other witness could not identify Rodriguez's attorney as the same attorney who questioned him at a hearing several months before trial. Rodriguez claims the third witness was not reliable because he was unable to pick Rodriguez's photograph out of the photographic array shown to him before trial. Rodriguez does not challenge the fourth witness's testimony other than arguing it should be excluded from the factual sufficiency review because of the allegedly tainted pretrial identification procedures. That one of the witnesses may have been mistaken about the number of photographs he was shown before trial goes to the weight of his testimony and was an appropriate factor for the jury to consider. That another witness was unable to identify Rodriguez's attorney at trial was a factor the jury could weigh against that witness's identification of Rodriguez at trial, at the pretrial hearing, and from the photographic array. The third witness's inability to pick Rodriguez's photograph out of the photographic array was also a factor the jury could weigh against that witness's positive identification at trial and at the pretrial hearing. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986) (failure to identify defendant on one occasion goes only to weight, not admissibility). Rodriguez's credibility and reliability arguments go to the weight of the evidence and credibility of the witnesses. The jury was in the best position to weigh their testimony and resolve any conflicts in the evidence. Nothing in this record indicates any reason to disregard the jury's assessment of the credibility of the witnesses or the weight to be given the evidence. In addition, Rodriguez points to the absence of forensic evidence, such as fingerprints, linking him to the shooting. However, there was also evidence explaining the lack of forensic evidence. The record indicates that police were unable to obtain fingerprints from several pieces of evidence because of weather conditions at the scene of the crime. Again, nothing in the record indicates any reason to disregard the jury's assessment of the weight to be given the evidence. The jury could weigh the lack of forensic evidence against the eyewitness testimony identifying Rodriguez. After a neutral review of all the evidence in the record, including the evidence referenced above, we cannot conclude that the evidence of guilt is so obviously weak as to undermine confidence in the jury's findings, or that the evidence of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. We resolve Rodriguez's first issue against him. Identification Testimony
A pretrial identification procedure may be so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law. See Conner, 67 S.W.3d at 200 (citing Simmons v. United States, 390 U.S. 377 (1968)). In his second issue, Rodriguez argues the in-court identification testimony of four witnesses denied him due process of law because the State used improperly suggestive pretrial identification procedures. We apply a de novo standard of review for such mixed questions of law and fact that do not turn on an evaluation of credibility or demeanor. See Loserth v. State, 963 S.W.2d 770, 772-73 (Tex.Crim. App. 1998). We conduct a two-step analysis to determine the admissibility of the in-court identification: (1) whether the out-of-court identification procedure was impermissibly suggestive, and if so, (2) whether that suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Id. Appellant has the burden to show by clear and convincing evidence that the in-court identification was irreparably tainted. Barley v. State, 906 S.W.2d 27, 33-34 (Tex.Crim.App. 1995). Four witnesses identified Rodriguez at trial. Before trial, each witness had been shown a photographic array consisting of six photographs, including that of Rodriguez. Rodriguez argues the photographic array was impermissibly suggestive because his photograph was the only one that depicted an individual with an oval-shaped head and because he appeared "younger looking" than the other persons in the photographic array. While the better practice in a pretrial identification procedure may be to use as many individuals as possible who fit the defendant's description, it is not essential that all the individuals be identical in appearance. Buxton v. State, 699 S.W.2d 212, 216 (Tex.Crim. App. 1985). Neither due process nor common sense requires such exactitude. Id.; Epps v. State, 811 S.W.2d 237, 244 (Tex. App.-Dallas 1991, no pet.). We have reviewed a copy of the photographic array shown to the witnesses. At least two other individuals have oval-shaped heads similar to Rodriguez. Rodriguez is not noticeably younger looking than the other individuals in the array. Each photograph is of a Hispanic male of approximately the same age. Each individual has similar facial hair and comparable facial features. Rodriguez does not "[stand] out as the likely candidate among the others in the lineup." Cooks v. State, 844 S.W.2d 697, 732 (Tex.Crim.App. 1992). We conclude the photographic array was not impermissibly suggestive because of the apparent shape of Rodriguez's head or his apparent age compared to the other persons in the array. Rodriguez also argues the identification testimony was tainted because the witnesses viewed him at a pretrial identification hearing where he was the only person dressed in white coveralls. Rodriguez argues this pretrial hearing was a single subject "show-up" procedure, requiring strict scrutiny. See Jimenez v. State, 787 S.W.2d 516 (Tex. App.-El Paso 1990, no pet.). Rodriguez did not request that he be permitted to appear in street clothes at the hearing. The hearing was on Rodriguez's motion to suppress the identification testimony, it was not a show-up. The purpose of the hearing was to determine whether the photographic array was impermissibly suggestive and created a substantial likelihood of irreparable misidentification. At the hearing, each witness identified Rodriguez based on what they saw at the time of the offense. A defendant cannot manufacture an allegedly tainted in-court identification merely by requesting a pretrial identification hearing at which the witnesses will view him as the only target for identification and most likely the only person in jail clothing. Rodriguez may not use the suppression hearing he requested to create a basis for excluding the identification evidence at trial. We conclude the identification at the pretrial hearing was not impermissibly suggestive. See Barley, 906 S.W.2d at 34 (holding that witnesses' viewing of defendant at pretrial hearing in violation of "the Rule" was not impermissibly suggestive); Cooks, 844 S.W.2d at 732 (rejecting argument that identification hearing was suggestive because appellant was in custody and only person to choose from). Having concluded the pretrial identification procedures were not impermissibly suggestive, we need not consider whether those procedures created a substantial likelihood of misidentification. See Webb v. State, 760 S.W.2d 263, 269 (Tex.Crim.App. 1988). We resolve Rodriguez's second issue against him. In his third and fourth issues, Rodriguez argues the trial court erred by admitting evidence of an extraneous aggravated robbery allegedly committed by Rodriguez during his flight from the murder. In his pretrial motion and at trial, Rodriguez properly objected that the evidence was inadmissible under evidence rules 404(b) and 403. We apply an abuse of discretion standard of review. Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001) (Rule 404(b)); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim. App. 1990) (opin. on reh'g) (Rule 403). Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person and that he acted in conformity therewith. Tex. R. Evid. 404(b). However, evidence of other crimes, wrongs, or acts may be admissible for other purposes such as proof of motive, intent, preparation, plan knowledge, identity, or absence of mistake or accident. Montgomery, 810 S.W.2d at 387-88. Evidence of other crimes, wrongs, or acts may also be admissible as same transaction contextual evidence. Same transaction contextual evidence includes evidence of the acts, words, and conduct of the defendant at the time of the offense or arrest. Rogers v. State, 853 S.W.2d 29, 33 (Tex.Crim.App. 1993); Mayes v. State, 816 S.W.2d 79, 86-87 n. 4 (Tex.Crim. App. 1991). The evidence must be necessary to the jury's understanding of the present offense in order to qualify as same transaction contextual evidence. Rogers, 853 S.W.2d at 33. The exception applies when the crimes are so blended or connected with one another that they form an indivisible criminal transaction, and full proof by testimony of one cannot be given without showing the other. Mayes, 816 S.W.2d at 86-87 n. 4. Same transaction contextual evidence should be admitted only if the facts and circumstances of the instant offense would make little or no sense without it. Rogers, 853 S.W.2d at 33; Pondexter v. State, 942 S.W.2d 577, 584 (Tex.Crim.App. 1996). When the opponent of the evidence objects on the grounds of rule 403, the trial court must decide whether the probative value of the relevant evidence is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403; see also Montgomery, 810 S.W.2d at 389. The appellate court should then consider: (1) how probative the evidence of the extraneous offense is; (2) the potential for the extraneous offense to impress the jury in some irrational but nevertheless indelible way; (3) the amount of time the proponent will need to develop the evidence; and (4) the proponent's need for this evidence to prove a fact of consequence. Wyatt v. State, 23 S.W.3d 18, 26 (Tex.Crim.App. 2000) (internal quotations omitted). The record shows that Cordray cashed paychecks for employees at a local business. Cordray arrived at the business and a short time later witnesses heard gunshots. Witnesses saw a young Hispanic male, later identified as Rodriguez, wearing a ski cap or toboggan, and carrying a small bag or purse and a silver handgun, running away from Cordray's truck. Two other witnesses were driving near the scene when they saw Rodriguez running toward them wearing a small hat and carrying a woman's purse. The witnesses followed him to the parking lot of a nearby store, where he approached an older man getting out of a car, demanded the older man's car keys, and pulled a gun when the man hesitated. The older man threw the keys on the ground and ran toward the store. Rodriguez took the keys, climbed into the car and fled the scene. The car was recovered a short time later with a purse inside. The purse was identified as Cordray's purse. The trial court did not abuse its discretion in admitting evidence of the aggravated robbery. The evidence of the flight and the robbery was relevant to show identity; that the same person who killed Cordray, fled the scene on foot and stole the car at gunpoint. Tex. R. Evid. 401. The evidence was admissible as an exception to rule 404(b) to show identity. Id. 404(b). Identity was the main issue in the case. One witness identified Rodriguez as the man who took Cordray's purse out of her truck and fled the scene carrying a silver handgun. Three witnesses identified Rodriguez as the man who ran from the murder scene carrying a woman's purse, then stole the car and drove away. The time interval between the crimes was very short, a few minutes. The evidence shows the robbery was committed during flight from the murder scene and the victim's purse was later found in the abandoned car. See Johnson v. State, 68 S.W.3d 644, 650-51 (Tex.Crim.App. 2002) (extraneous robbery offenses committed within a few hours of murder and involving victim's car were admissible to prove identity). We also conclude the probative value of the evidence was not substantially outweighed by undue prejudice under rule 403. The evidence of the aggravated robbery was highly probative. Three eyewitnesses, including the victim, identified Rodriguez as the robber. The jury was also instructed that it should not consider any extraneous offense evidence for any purpose unless it found beyond a reasonable doubt that the defendant committed the offense. The evidence of the robbery committed during flight from the crime scene was highly probative in explaining the context of the crime, the theft of Cordray's purse, and Rodriguez's identity as the perpetrator. See Johnson, 68 S.W.3d at 651. The evidence had little potential to impress the jury in some irrational manner. While some time was used to develop evidence of the flight and car theft, this evidence was necessary to explain the context of the murder and tended to identify Rodriguez as the perpetrator. Id. The State's need for the evidence was strong because of the absence of physical evidence linking Rodriguez to the crime. Evidence of the robbery provided eyewitness testimony inferentially linking Rodriguez to the murder and was not unfairly prejudicial. See id. at 652. We conclude the trial court did not abuse its discretion in admitting evidence of the extraneous aggravated robbery. See Powell, 63 S.W.3d at 438; Montgomery, 810 S.W.2d at 391. We resolve Rodriguez's third and fourth issues against him. In his fifth issue, Rodriguez argues the trial court erred in admitting three autopsy photographs of the victim because their prejudicial value far outweighed their probative value under rule 403. We apply an abuse of discretion standard of review. Wyatt, 23 S.W.3d at 29. Generally, autopsy photographs are admissible, unless they depict mutilation of the victim caused by the autopsy process. Burdine v. State, 719 S.W.2d 309, 316 (Tex.Crim.App. 1986). We consider several factors in conducting a rule 403 analysis of photographs, including the number of exhibits offered, the gruesomeness of the photographs, the amount of detail, whether they are in color, whether they are close-up, and whether the body depicted is clothed or naked. Wyatt, 23 S.W.3d at 29. A court does not abuse its discretion by admitting autopsy photographs that help illustrate and clarify a medical examiner's testimony. See Harris v. State, 661 S.W.2d 106, 108 (Tex.Crim. App. 1983); Drew v. State, 76 S.W.3d 436, 452 (Tex. App.-Houston [14th Dist.], pet. ref'd), cert. denied, 537 U.S. 1047 (2002). The complained-of exhibits were offered during the testimony of the medical examiner. The record does not reflect the size of the original photographs or whether they were in color. The record contains letter-size black and white photocopies of the photographs. Exhibit 6 is a photograph of the victim lying nude face-up on an autopsy table. Gunshot wounds to the left side of the victim's head and her upper left thigh can be seen in this photograph. Exhibit 7 is a close-up photograph of the entrance wound on the victim's head. The hair has been shaved around the wound and blood cleaned away. Exhibit 9 shows a laceration to the inside of the victim's lower lip. The challenged exhibits were three of forty-two exhibits admitted in evidence. The photographs are not gruesome; they do not depict mutilation of the body caused by the autopsy. Although one photograph shows the victim's nude body, the photograph is not "so vulgar or indecent as to draw attention away from the wounds that are the focus of the exhibit." Barnes v. State, 876 S.W.2d 316, 326 (Tex.Crim.App. 1994). The medical examiner testified the photographs were necessary to explain the victim's injuries to the jury. We conclude the trial court did not abuse its discretion in admitted the autopsy photographs. See Wyatt, 23 S.W.3d at 29; Harris 661 S.W.2d at 108; Drew 76 S.W.3d at 452. We resolve Rodriguez's fifth issue against him. Having resolved all issues against Rodriguez, we affirm the trial court's judgment.