Opinion
Nos. 05-05-00283-CR, 05-05-00284-CR
Opinion issued March 1, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F04-00899-Wt and F04-50869-UT. Affirmed.
OPINION
Emmanuel Dornail Rogers appeals two capital murder convictions. Upon appellant's not guilty pleas to the allegations contained in two separate indictments charging him with murdering four individuals, a jury found appellant guilty in each case. The trial court assessed the automatic life sentence in each case.See Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3602. In one issue, appellant contends the trial court reversibly erred in admitting into evidence during his trial gruesome autopsy pictures of the decedents. Because we conclude no reversible error has been shown, we affirm the trial court's judgments. In appellate cause number 05-05-00284, the indictment alleged, in relevant part, that appellant did
unlawfully then and there intentionally and knowingly cause the death of an individual, to-wit: HEATH LAURY, by shooting HEATH LAURY with a firearm, a deadly weapon, and during the same criminal transaction said defendant did then and there intentionally and knowingly cause the death of another individual, to-wit: JESSICA THOMPSON, by shooting JESSICA THOMPSON with a firearm, a deadly weapon,
and further, said defendant did unlawfully then and there intentionally and knowingly cause the death of an individual, to-wit: HEATH LAURY, by shooting HEATH LAURY with a firearm, a deadly weapon, and during a different criminal transaction but pursuant to the same scheme and course of conduct said defendant did then and there intentionally and knowingly cause the death of another individual, to-wit: JESSICA THOMPSON, by shooting JESSICA THOMPSON with a firearm, a deadly weapon . . .In appellate cause number 05-05-00283, the indictment alleged, in relevant part, that appellant did
unlawfully then and there intentionally and knowingly cause the death of an individual, to-wit: VIRGINIA RAMIREZ, by shooting VIRGINIA RAMIREZ with a firearm, a deadly weapon, and during the same criminal transaction said defendant did then and there intentionally and knowingly cause the death of another individual, to-wit: an unborn child of VIRGINIA RAMIREZ, by shooting VIRGINIA RAMIREZ while said unborn child was in gestation of said VIRGINIA RAMIREZ . . .The trial court held a hearing outside the jury's presence on the admissibility of the autopsy photographs. At that hearing, the parties stipulated to the medical examiner's qualifications. Dr. Joanie McClain, the medical examiner, testified. Each autopsy of the three adult decedents named in the two indictments had a unique number. Autopsy number 4791-03-3246Z was the autopsy of Ramirez. That autopsy was conducted by Dr. Christopher Young during his one-year fellowship in Dallas, and was done under the supervision of Dr. McClain. At the time of trial, Young was no longer working in Dallas, but worked as a medical examiner in Portland, Oregon. Dr. McClain described Young as an excellent pathologist. A complete internal examination of Ramirez's body was done during her autopsy, including looking inside her uterus. A fetus was found inside Ramirez's uterus. Dr. McClain explained, with the aid of the photographs, that if the fetus had died in utero, there would have been slippage of the skin, decomposition, and the amniotic fluid would not have been clear. Dr. McClain identified State's Exhibits 254 A, B, C, and D as photographs taken at the time of the autopsy that show the fetus inside the amniotic sac. The fetus was in the first trimester, or eight to nine weeks old. At that point, the fetus would not have been viable outside Ramirez's womb. So when Ramirez died, the fetus also died, because it was too premature to survive outside Ramirez. The fetus was an "unborn child at some stage of gestation between fertilization and birth." On cross-examination, defense counsel tried to pin Dr. McClain down to say that the only way to definitively say the fetus was alive before Ramirez died was by means of a sonogram, which would show a heartbeat. Dr. McClain, however, testified she was not an expert in the area of sonograms or gynecology and refused to state an opinion. She did agree with defense counsel that most spontaneous abortions occur in the first trimester. She could not say that smoking marijuana would have a deleterious effect on the fetus, but she did state it would be better not to smoke at all. Dr. McClain was unable to give a definite period of time before decomposition would set in. Appellant did not object to the admission of the photographs before the trial court during the sub rosa hearing. He did object to admission of the autopsy photographs before the jury because Dr. McClain was unable to state what effect, if any, marijuana would have had on the fetus. Inasmuch as Ramirez used marijuana, defense counsel argued that Dr. McClain could not know whether the fetus was alive or dead when Ramirez died. The trial court determined that was an evidentiary issue for the jury. After some discussion about correcting the numbering of the exhibits, the record reflects the following, in relevant part:
[The Court]: 254A through D then would be the exhibits.
[Defense Counsel]: If he's going to introduce them in front of the jury, they're inflammatory.
[Prosecutor]: They just argued I have no way of showing this jury that those fetuses were viable. Now they want to offer-now they want to object to my evidence that the fetus was viable.
[The Court]: Great objection, too.
[Defense Counsel]: I think it's a good one.
[The Court]: I'm going to overrule it. Seriously, I am serious. I think these pictures are-probably are relevant because of the allegations concerning the unborn fetus. And if they're relevant, the next question is if the prejudicial outweighs the probative value. I feel it does not, so I think the probative value is sufficient enough to overcome the prejudice.When the prosecutor explained there were other photographs he intended to offer, the following occurred, in relevant part:
[The Court]: [Defense Counsel], are you going to object to more autopsy photos?
[Defense Counsel]: Yes. They're repetitive, and the prejudicial value outweighs the probative value.
[The Court]: Without seeing them, [Prosecutor], any of them actual —
[Prosecutor]: Judge —
[The Court]: — of the dissected bodies, cut open bodies? Any organs? Anything of that sort?
[Prosecutor]: Judge, I think in one of the autopsies there is a photograph of a-one of the internal organs. That is the only one of the photographs.
[The Court]: Which victim? Can you tell me? Do you know? Does it matter really? Probably doesn't matter. Depends what the argument is.
[Prosecutor]: Judge, the photographs that I've selected-and what I will do is I'm going to offer for record purposes three envelopes, one for each of the autopsies with the photographs that I'm not offering so that the record is clear that there — if I chose to be repetitive, there were numerous opportunities for me to do so. And I will label those once we're done with the medical examiner. But —
[The Court]: I'll deal with it this way then. I'll overrule the Defense objection to autopsy photos. I'll admit them. I find they are relative [sic], ones that I have been told will be actually offered before the jury. Prejudicial value, there's always inherent prejudicial value against any autopsy photos, but the prejudicial value is outweighed by the probative value.
Because of the facts as I've heard them in this case, I think the testimony of the doctor and pictures of the deceased might be something the jury needs to consider one way or the other. Overruled.
[Prosecutor]: Judge, these are the two.
[The Court]: You have a running objection, [Defense Counsel], to those.
[Prosecutor]: Those are from the Virginia Ramirez autopsy.
[The Court]: Okay. That the brain?
[Prosecutor]: That's —
[Defense Counsel]: Yes.
[Prosecutor]: Yes, skull and then the brain. Doctor-like I said, Judge, the autopsy —
[The Court]: She shot in the head?
[Prosecutor]: Yes. The autopsy photos I've selected and I would have-I can put that on the record with Dr. McClain, was done after consulting with her and having her review both the autopsy reports and then the complete series of photographs that were taken in an attempt to present an illustrative example of all the wounds these victims sustained.
[The Court]: I made my ruling. I'll stay with it.
You have a running objection. If you want to make it again, you can, but you don't have to. That settles it. Let's go.At this point, the jury returned to the courtroom. On appeal, appellant contends the trial court reversibly erred by admitting certain autopsy photographs into evidence over his objection they were inflammatory. Appellant contends the prejudicial effect of the photographs substantially outweighed any probative value they had. Appellant describes State's Exhibits 241, 242, 254A, 254B, 254C, and 254D as the "most offensive." These photographs are depictions of the head with the upper skull and brain removed, the brain removed and dissected, the uterus removed from the body, the placenta, and the fetus. Appellant contends the State did not need these photographs because the causes of death were not being contested by the appellant. Appellant contends the trial court did not engage in the required balancing process and abused its discretion in admitting the photographs. Appellant relies on rule 403 of the Texas Rules of Evidence and on Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex.Crim.App. 1991) (op. on reh'g), and Goodwin v. State, 799 S.W.2d 719, 738-39 (Tex.Crim.App. 1990). The State responds that the trial court properly admitted the autopsy photographs because their probative value outweighed their prejudicial effect. The State contends that the photographs appellant describes as "the most offensive"-the fetus photographs-were probative of a disputed fact issue at trial-whether the fetus was alive or dead at the time of Ramirez's death. As for the other photographs, the State contends they show the combined twenty gunshot wounds sustained by the three adult victims and were probative to show appellant's intent and motive. Admissibility of photographs is within the sound discretion of the trial court. Rayford v. State, 125 S.W.3d 521, 529 (Tex.Crim.App. 2003), cert. denied, 543 U.S. 823 (2004) (citing Hayes v. State, 85 S.W.3d 809, 815 (Tex.Crim.App. 2002)). Rule 403 provides,
Although relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.Tex. R. Evid. 403. Rule 403 favors admissibility and contains a presumption that relevant evidence will be more probative than prejudicial. Hayes, 85 S.W.3d at 815. A proper rule 403 analysis includes, but is not limited to, the following factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. See Montgomery, 810 S.W.2d at 389-90. We will uphold a trial court's decision to admit evidence if it is within the zone of reasonable disagreement. See Hayes, 85 S.W.3d at 816. The record belies appellant's contention that the cause of the fetus's death was not contested. It was appellant's position, through his cross-examination of the medical examiner, that an autopsy could not definitively determine whether the fetus was alive or dead at the time of Ramirez's death. Appellant contended the only definitive way to make such determination was by a sonogram. His defensive theory was that the State failed to prove the fetus was alive at the time of Ramirez's death; therefore, it did not meet its burden to prove two individuals died, as alleged in that indictment. The State's position was that Dr. McClain's testimony about Ramirez's autopsy, aided by the autopsy photographs, was sufficient to prove that, at the time of Ramirez's death, the fetus was alive. The record also shows the trial court considered the autopsies to be relevant to that contested issue and, further, that such issue was a fact issue for the jury. The record also shows the trial court did balance the probative value against the prejudicial effect of the photographs, and after doing so, concluded the probative value of the photographs was not substantially outweighed by the prejudicial effect of such photographs. Very little time was involved in developing the evidence surrounding the photographs because they were used by the medical examiner during her testimony to assist her in explaining her medical testimony to the jury, particularly as to whether the fetus was alive at the time of Ramirez's death. The medical examiner had, in fact, participated in the selection of the photographs that she believed best aided her explanation to the jury of the causes of death of the decedents. The facts in this case are distinguishable from the facts in Prible v. State, 175 S.W.3d 724, 736 (Tex.Crim.App.) cert. denied, 126 S. Ct. 481 (2005), wherein the court of criminal appeals concluded the trial court abused its discretion in admitting autopsy photographs of children. In Prible, not only was the cause of the children's deaths not contested, but "most important, appellant was not charged with murdering them." See id. In these cases, appellant was charged with murdering three adults and an unborn child. It is the autopsy photographs of those decedents that appellant challenges. Thus, the autopsy photographs were relevant to a contested issue at trial. Further, the trial court did apply the Montgomery balancing factors before concluding the photographs were admissible. We conclude the trial court did not abuse its discretion in admitting the photographs. We overrule appellant's sole issue in each case. We affirm the trial court's judgments.
Section 12.31 of the penal code was amended, effective September 1, 2005, to set the punishment for capital murder in which the State does not seek the death penalty at life imprisonment without parole. See Act of May 28, 2005, 79th Leg., R.S., ch. 787, § 1, 2005 Tex. Gen. Laws 2707, 2707 (codified at Tex. Pen. Code Ann. § 12.31 (Vernon Supp. 2005)). Because appellant's offense occurred before the effective date of the amendment, the former provisions of section 12.31(a), which provided for life imprisonment, apply. See Act of May 28, 2005, 79th Leg., R.S., ch. 787, § 1, 2005 Tex. Gen. Laws 2707, 2711.
Except for the cause numbers, appellant's briefs are essentially identical.
Numerous photographs were admitted. State's Exhibits 201-31 pertain to Heath Laury; State's Exhibits 234-53 and 254A, B, C, and D pertain to Virginia Ramirez and the unborn child; and State's Exhibits 257-77 pertain to Jessica Thompson.