Opinion
No. 05-05-00687-CR
Opinion Filed June 22, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-74227-JQ. Affirm.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
OPINION
A jury convicted James Joseph Singleton of capital murder in the deaths of his parents, and the trial court imposed a life sentence. In three points of error, appellant brings complaints about the jury, voir dire, and admission of autopsy photographs. We affirm. Appellant does not challenge the sufficiency of the evidence, so we recount only briefly the facts of this case. In August 2002, Ralph and Sherida Singleton were found dead in their home by their oldest son, Eric. Both had sustained numerous sharp-force injuries. Appellant, the couple's youngest son, disappeared after the killings, and police were unable to locate him. More than one year later, police learned appellant was in jail in Arkansas. Police went there to interview appellant, and he told them, "I am not trying to make any excuses. I killed my parents with a sword. I didn't know why it should have happened." Appellant was indicted for capital murder. In his first point of error, appellant complains he was tried and convicted by an unlawfully constituted jury. Appellant complains that two jurors were selected by individual voir dire before a general panel voir dire was conducted, but neither of these first two jurors sat on the jury. Appellant's sole argument is that a trial court cannot sua sponte excuse a juror unless that juror is disqualified. See Esquivel v. State, 595 S.W.2d 516, 524 (Tex.Crim.App. 1980). After appellant was indicted for capital murder, prosecutors proceeded as if they would seek the death penalty. Individual voir dire was conducted over a period of several days in October and November 2004, and two prospective jurors were accepted by both sides. Neither was sworn in as a juror. By the following month, however, the State was no longer seeking the death penalty. In a pretrial hearing on December 29, defense counsel waived some previously filed motions relevant to a death penalty case, saying the State was not seeking death. Then, in January, the case was called for trial, and regular voir dire was conducted. Prospective jurors were told that appellant was being tried for capital murder and, if found guilty, the mandatory sentence was life. The record contains nothing regarding the State's decision not to seek death in this case nor does it reflect how the two prospective jurors were ultimately dismissed. To preserve a complaint on appeal, a defendant must make a timely, specific objection to preserve error for appellate review. See Tex.R.App.P. 33.1(a)(1)(A). At no time before, during, or after the jury was selected, seated, and sworn did appellant raise any complaint about the absence of the two prospective jurors. To the contrary, although the record does not expressly show that appellant agreed to release the two prospective jurors, appellant's comments and participation in the regular voir dire process certainly suggest that he did so. We note that it seems unlikely that appellant would want members of his jury to know that the State originally sought the death penalty. Because appellant did not raise his complaint in the trial court, we conclude it is waived. We overrule the first point of error. In his second point of error, appellant complains the trial court erred in denying his motion to quash the jury panel after a prospective juror made a prejudicial comment. During the State's voir dire of the panel, the prosecutor asked prospective jurors if they could judge police officers fairly as witnesses or whether past experience would bias them. One panel member responded, "I thought about all the criminal defendants I represented. The fact is, I never had one that didn't commit the crime." One question later, defense counsel asked to approach the bench, and the trial judge told counsel to wait until the prosecutor had completed his voir dire. When the prosecutor finished his voir dire and the venire had left the courtroom, defense counsel complained that the prospective juror's unsolicited response "from somebody who holds himself out to have some credence or experience or whatever in this field would be enough to create a prejudice against our client and his innocence that we would not be able to counteract by either an instruction from the court or from any voir dire that we might be able to engage in." Counsel asked that the panel be quashed and a mistrial declared. The trial court denied the request. When a party's first action is to move for mistrial, as was the case here, the scope of appellate review is limited to the question of whether the trial court erred in not taking the most serious action of ending the trial; in other words, an event that could have been prevented by a timely objection or cured by an instruction to the jury will not lead an appellate court to reverse a judgment on appeal by the party who did not request these lesser remedies in the trial court. See Young v. State, 137 S.W.3d 65, 70 (Tex.Crim.App. 2004). In Young, the defendant was charged with the aggravated sexual assault of a six-year-old child. During voir dire, a prospective juror told the trial court she did not believe she could be fair because she worked with "a lot of sexual assault children." Under questioning by the court, she explained that in her twenty-five to thirty years of work, when a child claims to have been sexually assaulted, it is true the majority of time. The trial court then asked, "Are you saying in your 25 to 30 years of work you've never had a situation where a child is found not to be telling the truth?" The juror responded, "Right. Correct." The trial court then asked, "So, that's never happened in your 25 or 30 years?" The juror then confirmed her previous answer. At that point, defense counsel asked for a mistrial, which the trial court denied. See Young, 137 S.W.3d at 67-68. The court of criminal appeals ultimately concluded that while the complaint was preserved, the harm flowing from the juror's comment could have been cured by an instruction to disregard. See Young, 137 S.W.3d at 71. The court reasoned that jurors, drawing upon their own experiences with children, would question the veracity of the juror's statement. Additionally, the juror was ultimately challenged for cause and dismissed. Here, unlike in Young, there was no lengthy exchange regarding the juror's comment. The remark was one sentence in ninety-six pages of the voir dire record. Neither the parties nor the trial judge ever emphasized it with additional questions. Also, like the woman in Young, this panel member was not seated on the jury. (A chart contained in the clerk's record suggests that both sides exercised a strike against the juror.) Finally, we note that both sides impressed upon the jury the presumption of innocence afforded to the accused and the fact that the burden of proof was upon the State, not the defendant. Under the circumstances of this case, we conclude an instruction to disregard could have cured any resulting harm; therefore, the trial court did not err in denying the mistrial. We overrule the second point of error. In his third point of error, appellant complains the trial court abused its discretion in admitting seventeen autopsy photographs of the Singletons, Exhibits 94 to 110, in violation of Texas Rules of Evidence 401 and 403. Specifically, he argues he did not dispute the causes of death and what "little relevance" the photographs had was substantially outweighed by the prejudicial effect. The admissibility of a photograph is within the sound discretion of the trial judge. Shuffield v. State, 189 S.W.3d 782, 786 (Tex.Crim.App. 2006) . 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." Tex. R. Evid. 401. Here, the photographs showed the wounds that caused the deaths of both of the victims. Therefore, the photographs were relevant during the guilt phase of appellant's capital murder trial. See Shuffield, 189 S.W.3d at 787 (photographs showing location of body and crime scene and wounds that caused victim's death relevant, even though issue of cause of death was presented by other evidence and was not in dispute). Even relevant evidence, however, may be excluded if its probative value is substantially outweighed by its prejudicial effect. Tex. R. Evid. 403. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Shuffield, 189 S.W.3d at 787. A rule 403 analysis should include, but is not limited to, (1) how probative the evidence is; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible, way; (3) the time the proponent needs to develop the evidence; and (4) the proponent's need for the evidence. Id. In the context of the trial court's admitting photographs, we consider the number and size of the photographs, whether they are in color or black and white, whether they are gruesome, whether the body is naked or clothed, and whether the body has been altered by autopsy. Id.; Frank v. State, 183 S.W.3d 63, 77 (Tex.App.-Fort Worth 2005, pet. ref'd). Autopsy photographs are generally admissible unless they depict mutilation caused by the autopsy itself. Rayford v. State, 125 S.W.3d 521, 529 (Tex.Crim.App. 2003), cert. denied, 543 U.S. 823 (2004). Where pictorial evidence will help the jury to understand verbal testimony, such as the technical language used by a medical doctor in describing the injuries sustained by a crime victim, the photograph is generally admissible. Frank, 183 S.W.3d at 78. Photographs that depict the nature, location, and extent of a wound have been declared probative enough to outweigh any prejudicial effect. Id.; Legate v. State, 52 S.W.3d 797, 807 (Tex.App.-San Antonio 2001, pet. ref'd). Dr. Sheila Spotswood, a medical examiner for Dallas County, testified about the autopsies performed on the Singletons. Dr. Spotswood said that Mr. Singleton sustained thirty-four sharp-force injuries, which included seventeen chop wounds, sixteen incised wounds or cuts, and one stab wound; Mrs. Singleton suffered twenty-five sharp-force injuries, which included both chop wounds and cuts. Exhibits 94 to 103 depict Mr. Singleton's injuries, and Exhibits 104 to 110 depict Mrs. Singleton's injuries. The photographs were admitted during the testimony of Dr. Spotswood and assisted her in illustrating her findings and showing the location, nature, and extent of the wounds to both victims. Dr. Spotswood explained, by use of the photographs, the difference between a chop wound and incised wound. She also identified what she believed to be defensive wounds on both victims, indicating they fought their attacker. Although the photographs are in black and white in our record, we assume they were color photographs at trial. None depicts any mutilation caused by an autopsy. In light of the fact that the victims, together, sustained fifty-eight sharp-force wounds, we cannot say the number of photographs admitted was excessive. The photographs represented injuries to the head, arms, hands, and upper bodies of the victims. Although gruesome, they are no more gruesome than the crime itself. We conclude the photographs were not so gruesome or so inflammatory that they would be excludable from a capital murder trial on grounds that their probative value, to show circumstances of the crime and to depict the reality of of the offense, was substantially outweighed by the danger of unfair prejudice. See Sierra v. State, 157 S.W.3d 52, 62 (Tex.App.-Fort Worth 2004, pet. granted on other grounds) (op. on reh'g). We overrule the third point of error. We affirm the trial court's judgment.