No. 05-06-00800-CR
Opinion Filed February 19, 2008. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F04-00085-KQ.
Before Justices WHITTINGTON, WRIGHT, and FITZGERALD.
CAROLYN WRIGHT, JUSTICE.
Quang Khac Tran appeals his conviction for murder. After finding appellant guilty, the jury assessed punishment at thirty years' confinement. In four issues, appellant contends (1) the evidence is legally and factually insufficient to support his conviction; (2) the trial court erred by admitting certain autopsy photographs; and (3) the trial court erred by denying appellant's motion for continuance. We overrule appellant's issues and affirm the trial court's judgment.
Background
Officer Kyle Robert Land, a Dallas police officer, responded to a 911 call in the Lower Greenville area. When he and his partner arrived at the location, they found paramedics loading George Myers Boone into an ambulance. A short time later, Boone died in the emergency room from a single gun shot wound to the chest. Ronald Bush, the store manager at the Home Depot where appellant worked, testified that about two months before Boone was killed, appellant asked to borrow Bush's car. When Bush asked why, appellant told him "I think my wife is messing around. I'm gonna follow her today and she won't recognize me in your car." Bush gave appellant the day off and allowed him to take the car. Bush noticed that although appellant usually wore khakis and a dress shirt, that day he had on jeans, a t-shirt and a ball cap and that he seemed "a little panicked." About two hours later, appellant called Bush and told him that he followed his wife to an apartment on Lower Greenville, walked into the unlocked apartment, and "caught them." That same day, he asked Bush for time off to move his wife out of the apartment. A few weeks later, he asked for time off to help his wife move back into the apartment. Michael Regitz testified he lived in a duplex across the street from Boone's apartment. About one and one-half hours before Boone was killed, Regitz was outside on his porch. He noticed a non-Caucasian man about 5'10" tall, wearing a ball cap. The man was moving across the yard toward Boone's apartment building. Regitz noticed the man because he was not taking "a direct route diagonally across the yard . . . [i]t was more of a couple steps and maybe looking in a window, looking at the door." The man "seemed to be hesitant, taking time, perhaps surveying the area." Helena Cerquiera-Rodrigues, Boone's neighbor, testified that on the evening Boone was shot, she was leaving her apartment to go for a walk. As she approached the door to Boone's apartment, she heard Boone say, "`No,' very loud" and "very startled." She also heard a "feminine voice, angry, talking with" Boone. The voice she heard was "a high-pitched voice," not a "strong man's voice." Cerquiera-Rodriques was concerned and stopped to decide what to do. As she did so, she heard a gunshot. She then returned to her apartment and called the police. Sergeant Miguel Sarmiento testified he was the detective assigned to the case. As part of his investigation, Sarmiento spoke with Boone's co-workers. After doing so, he learned Boone and Vanessa Tran, appellant's wife, were having an affair which began months before Boone was murdered. After learning of the affair, Sarmiento interviewed Tran. According to Sarmiento, Tran denied any involvement with Boone's murder but admitted that she and appellant owned a gun. When Sarmiento asked Tran if she would voluntarily submit the gun for testing, she called appellant. Appellant refused to submit the gun without a warrant. The next morning, after obtaining a warrant, Sarmiento retrieved the gun from the Trans's apartment. When he did so, appellant told Sarmiento appellant "watched a lot of CSI so [he] need[ed] to know what's gonna happen." Sarmiento then obtained the Trans's telephone records. According to Sarmiento, the telephone records suggested that around the time of the murder, Tran was at the Trans's apartment in Fort Worth and appellant was in Dallas. Specifically, the telephone records showed appellant's cellular telephone was being used in Dallas at the time of the murder, although appellant had told Tran he was at work in Keller at the time of the murder. After reviewing the telephone records, Sarmiento turned the focus of his investigation away from Tran and towards appellant. Sarmiento returned to the Trans's apartment and recovered several items for forensic testing, including a floor mat from appellant's car. The floor mat had a stain that tested presumptively positive for blood. Although the blood sample was degraded, the forensic examiner was able to exclude appellant and Tran as sources of the blood, but concluded the blood could have belonged to Boone because it contained a genetic marker which matched Boone's DNA profile. Leah Chitty, Tran's friend, testified she and Tran were talking on the telephone around the time of the murder. According to Chitty, she knew Tran was at her apartment in Fort Worth at the time, because Chitty's caller identification on her cellular telephone showed Tran called from her home number and Chitty heard Tran's dogs barking in the background as they talked. Detective Bruce Adams testified he was responsible for "processing" the scene where Boone was murdered. Among other evidence, he recovered a cartridge casing in the doorway of Boone's apartment. Heather Thomas, a firearm and tool-mark examiner, testified that she examined the Trans's gun and the cartridge casing found at Boone's apartment. She determined that the cartridge case was fired from the Trans's gun. Thomas also testified that after the cartridge case had been expelled from the gun, someone had intentionally damaged the interior barrel of the gun. After hearing this and other evidence, the jury found appellant guilty of murder. This appeal followed. Sufficiency of the Evidence
In his first and second issues, appellant claims the evidence is legally and factually insufficient to support his conviction. Specifically, appellant maintains "there are too many inconsistencies in this case to provide the jurors with enough information to determine whether each element is true beyond a reasonable doubt." When reviewing legal sufficiency complaints, we apply well-known standards: "we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt." Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App. 2007); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). The jury, as the sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). As the reviewing court, we must give deference to "the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper, 214 S.W.3d at 13 (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). Evidence that rationally supports a guilty verdict beyond a reasonable doubt under the legal sufficiency standard can still be factually insufficient. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (2007). Evidence is factually insufficient to support the verdict if it is clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. Id. The difference between the legal and factual sufficiency standards is that "the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury's on these questions `albeit to a very limited degree.'" Rollerson, 227 S.W.3d at 724. Nevertheless, a "factual-sufficiency review is `barely distinguishable' from a Jackson v. Virginia legal sufficiency review." Rollerson, 227 S.W.3d at 724. In this case, the jury was authorized to convict appellant if it found beyond a reasonable doubt that appellant intentionally or knowingly caused Boone's death by shooting him with a firearm. The jury heard evidence that Boone and Tran were having an affair, appellant was upset about it, and he knew where Boone lived. Some weeks before Boone was killed, appellant in an effort not to be recognized, borrowed a car and wore jeans and a baseball cap to follow Tran to Boone's apartment. About one and one-half hours before Boone was shot, a man in a baseball cap was seen "surveying the area." The Trans's gun was used to kill Boone. At the time, Tran was at home in Fort Worth. Appellant, who told his wife he was at work in Keller, was in Dallas. Human blood, not that of either of the Trans but that could have been Boone's blood, was found on appellant's car floor mat. Based on this evidence, a rational jury could have found appellant murdered Boone. Thus, we conclude the evidence is legally sufficient to support appellant's conviction. With respect to appellant's factual sufficiency challenge, the record shows Cerquiera-Rodriques initially thought the voice she heard from Boone's apartment was a woman, but the jury could have determined it was an excited man with a high-pitched voice. Further, appellant claims the evidence shows Boone was killed by someone he was expecting because the outside door to the apartment was propped open by a rock, and Boone answered the door wearing only a towel. However, the jury heard evidence that the door was often propped open. Moreover, the jury could have reasonably concluded that a young man would answer the door wearing only a towel. With respect to appellant's claim that the telephone records show he was not at the scene of the murder because he was logged onto a cell site on Stemmons Freeway at 7:15 p.m., Sarmiento testified the murder must have occurred between 7:05 and 7:10 p.m. and it took him about "ten minutes" to get to the cell site location from Boone's apartment. And, a Sprint employee testified the cell site picks up calls within about three miles. Thus, contrary to appellant's claim, it was possible for appellant to have shot Boone and to have also been in the cell site area at 7:15 p.m. In sum, it is the jury's role to resolve credibility issues and conflicting evidence. Although this Court is entitled to substitute its judgment for the jury "to a limited degree" when considering the factual sufficiency of the evidence, this case does not warrant such action. Considering the evidence under the appropriate standard, we conclude it is factually sufficient to support appellant's conviction. We overrule appellant's second issue. Autopsy Photographs
In his third issue, appellant contends the trial court erred by admitting certain photographs into evidence. After reviewing the record, we cannot agree. The admissibility of photographs lies within the sound discretion of the trial court. Paredes v. State, 129 S.W.3d 530, 539 (Tex.Crim.App. 2004). As a general rule, photographs are admissible if verbal testimony regarding what is depicted in the photographs is also admissible and the probative value of the photograph is not substantially outweighed by any of the rule 403 counter-factors. Threadgill v. State, 146 S.W.3d 654, 671 (Tex.Crim.App. 2004). Rule 403 of the rules of evidence favors the admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial. Long v. State, 823 S.W.2d 259, 271 (Tex.Crim.App. 1991). An abuse of discretion arises only when the probative value of the photographs is small and its inflammatory potential is great. Id. In determining whether the trial court erred by admitting the photographs, we consider: (1) the number of exhibits offered; (2) their gruesomeness, detail, and size; (3) whether they are black and white or color; (4) whether they are close-up; (5) whether the body is naked or clothed; (6) the availability of other means of proof; and (6) other circumstances unique to the individual case. Santellan v. State, 939 S.W.2d 155, 172 (Tex.Crim.App. 1997); Emery v. State, 881 S.W.2d 702, 710 (Tex.Crim.App. 1994). Autopsy or post-autopsy photographs can be used to illustrate injuries and to reveal cause of death. Drew v. State, 76 S.W.3d 436, 451 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). As long as the autopsy photographs aid the jury in understanding the injury and do not emphasize mutilation caused by the autopsy, the photograph is admissible even though it depicts the autopsy. Id. Here, appellant complains of certain photographs taken during Boone's autopsy. Dr. Keith Pinkard, the medical examiner who performed the autopsy, used the photographs to help explain Boone's injuries to the jury. The first and second of the thirteen color photographs show the way in which the medical examiner received Boone's body. The remainder are close-up photographs depicting the gun shot wound and various lacerations and abrasions on Boone's body. Two of the photographs are very detailed of the gun shot wound, and Pinkard used them to explain the significance of soot and fibers in the wounds. Pinkard used the remainder of the photographs to show Boone's injuries were consistent with Boone stumbling to find help after he was shot and that he tried to defend himself. Two of the photographs show Boone nude, however, those were the photographs depicting the condition of his body when it was received by the medical examiner's office. After reviewing the relevant factors, we cannot conclude the trial court abused its discretion by determining the probative value of the photographs was not substantially outweighed by the danger of unfair prejudice. See Paredes, 129 S.W.3d at 540. We overrule appellant's third issue. Motion for Continuance
In his fourth issue, appellant complains the trial court abused its discretion by denying his oral motion for continuance. Article 29.03 of the Texas Code of Criminal Procedure provides that a criminal trial may be continued "on the written motion of the State or of the defendant, upon sufficient cause shown." Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 2006). However, an unsworn, oral motion for continuance preserves nothing for review. Dewberry v. State, 4 S.W.3d 735, 755 (Tex.Crim.App. 1999); Matamoros v. State, 901 S.W.2d 470, 478 (Tex.Crim.App. 1995); Montoya v. State, 810 S.W.2d 160, 176 (Tex.Crim.App. 1989). Here, appellant orally requested a continuance on Friday afternoon until the following Monday. Trial counsel explained that appellant had chosen not to tell his relatives about the trial unless he was found guilty, and now wanted time to tell them and have them testify during the punishment phase of the trial. The trial court denied appellant's motion. Because appellant's motion for a continuance was not written and sworn, appellant failed to preserve his complaint for our review. See Dewberry, 4 S.W.3d at 756; Matamoros, 901 S.W.2d at 478; Montoya, 810 S.W.2d at 176. We overrule appellant's fourth issue. Accordingly, we affirm the trial court's judgment.