Opinion
Nos. 05-05-00642-CR, 05-05-00643-CR
Opinion issued February 15, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F04-01532-P F04-01533-P. Affirmed.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
MEMORANDUM OPINION
Tony Lee Williams appeals his convictions for murder and aggravated assault. Before a jury, appellant pleaded guilty to the charges and true to the enhancement allegation. The jury assessed appellant's punishment at life imprisonment in each case. Appellant brings two issues, asserting (1) the jury's failure to find that appellant acted under the immediate influence of sudden passion arising from an adequate cause is against the great weight and preponderance of the evidence, and (2) the trial court erred in admitting an autopsy photograph. We affirm the trial court's judgments.
BACKGROUND
In April 2004, appellant and his wife, Dwanna Williams, had been married for about fourteen years. Dwanna already had three children, including Alexis, whom appellant raised as his own. In 2004, Alexis was seventeen years old. For the preceding couple of years, appellant and Alexis often argued about Alexis's failure to keep her bedroom tidy, the amount of time she spent on the telephone, her choice of boyfriends, and her disrespectful attitude toward him. Dwanna frequently interceded in these arguments. Alexis testified that during an argument with her and Dwanna in January 2003, appellant pointed a handgun at her, and she told her mother that appellant would not shoot her. Appellant fired the gun, missed Alexis, but put a hole through the walls in the house. Appellant denied this incident occurred, and he testified Alexis lied in her testimony. During their marriage, Dwanna had left appellant four or five times and stayed with her mother. However, she always returned to appellant within a few days at his urging. On the evening of Wednesday, April 7, 2004, Dwanna and her children went to church, while appellant went to a friend's house and drank a few beers. Appellant arrived home shortly after Dwanna and Alexis had returned. Appellant became angry because Alexis was on the telephone and had not picked up her clothes. Appellant yanked the telephone line from the wall, and he and Alexis began arguing. Appellant pushed Alexis against a wall, and he picked up a belt. Dwanna tried to intervene, and appellant struck them both with the belt. Dwanna and Alexis left the house and walked to the nearby home of Dwanna's cousin, Laura Miller. Appellant soon arrived at the Millers' house. Dwanna, appellant, and Alexis resumed their argument at the Millers', and Laura tried to mediate the dispute. Dwanna complained of appellant's treatment of her and Alexis, and appellant complained of Alexis's disrespectful language toward him. Dwanna said she would not side with appellant against her daughter. Alexis said "she wasn't going to let him treat her the way he treat her momma." Dwanna told appellant that "if he did not straighten up and treat her better she was going to leave him." After a few hours at the Millers' house, appellant, Dwanna, and Alexis returned to their home. When they got home, Alexis went to her bedroom, but appellant and Dwanna began arguing again. Laura Miller had decided she should check on them, and her husband drove her to the Williamses' house. When she arrived, appellant and Dwanna were arguing. Dwanna told appellant she was leaving him, and she asked Laura to take her and her children to Dwanna's mother's house. Appellant left the room and returned carrying a handgun. Without saying anything, he pointed the gun at Dwanna and fired, hitting Dwanna. Dwanna screamed and ran outside. Appellant continued shooting at Dwanna as she ran to the Williamses' truck and got inside. Appellant walked to the truck, put his arm inside the window, placed the muzzle of the gun against Dwanna's body, and fired. The Millers drove Dwanna to a nearby fire station, and the paramedics took her to the hospital, but she died from the gunshot injuries. After shooting Dwanna, appellant walked back inside the house to Alexis's bedroom. Appellant forced his way in, pointed the gun at her, and said, "This is all your fault." He then shot Alexis in the side. Appellant left the house and fled. Alexis walked to the house of a neighbor, who called the police. Alexis recovered from the gunshot, but she has a permanently fractured vertebra.SUDDEN PASSION
In his first issue, appellant contends the jury's failure to find that appellant acted under the immediate influence of sudden passion arising from an adequate cause was against the great weight and preponderance of the evidence and caused him harm. The offense of murder is ordinarily a first degree felony. See Tex. Pen. Code Ann. § 19.02(c) (Vernon 2003). However, murder is a second degree felony if the trier of fact finds the defendant proved by a preponderance of the evidence that "he caused the death under the immediate influence of sudden passion arising from an adequate cause." Id. § 19.02(d). "'Sudden passion' means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation." Id. § 19.02(a)(2). "'Adequate cause' means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Id. § 19.02(a)(1). When a defendant seeks appellate review of a jury's failure to make a finding on which the defendant has the burden of proof, the defendant invokes our factual review jurisdiction. Naasz v. State, 974 S.W.2d 418, 421 (Tex.App.-Dallas 1998, pet. ref'd); see Meraz v. State, 785 S.W.2d 146, 154-55 (Tex.Crim.App. 1990). In that instance, "the correct standard of review is whether after considering all the evidence relevant to the issue at hand, the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust." Meraz, 785 S.W.2d at 155. We are to give deference to the fact finder's determinations, including determinations involving the credibility and demeanor of witnesses. Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App. 2004); Trevino v. State, 157 S.W.3d 818, 821 (Tex.App.-Fort Worth 2005, no pet.). We may not substitute our judgment for that of the fact finder's. Zuniga, 144 S.W.3d at 482; Trevino, 157 S.W.3d at 821. Appellant argues the evidence established that he was acting under the influence of sudden passion when he shot Dwanna. Appellant testified he "flipped out" and that he was not himself. Laura Miller testified appellant was "just like in a daze" while shooting Dwanna. Appellant asserts "adequate cause" was established by the trial testimony showing the devastating effect of his realization that Dwanna was leaving him. However, when appellant was asked if the shootings were triggered by Dwanna's announcement that she was leaving, appellant testified, "it wasn't just her leaving it was just the whole thing because she wouldn't — she would just let Alexis get away with things that — she never listened to what I had to say, it was always — she was always listening to what Alexis said." This testimony that her announcement of leaving was not what triggered the shooting, together with Dwanna's history of leaving appellant and always returning to him within a few days, permitted the jury to conclude that appellant had not proven "adequate cause." Likewise, the jury could conclude that Dwanna's failure to discipline Alexis together with her announcement that she was leaving appellant did not constitute "adequate cause." We conclude the jury's failure to find appellant acted under the immediate influence of sudden passion arising from an adequate cause was not against the great weight and preponderance of the evidence. We overrule appellant's first issue.AUTOPSY PHOTOGRAPH
In his second issue, appellant asserts the trial court erred in admitting into evidence an autopsy photograph of Dwanna. The trial court admitted twenty-one autopsy photographs. On appeal, appellant complains of the admission of only one of them, State's exhibit 37. As appellant states in his brief, the exhibit "depicted the bullet-ridden, nude body of the deceased with a large sutured incision on the torso." Appellant argues that the exhibit should not have been admitted because its probative value was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. We conclude that any error was not preserved During the medical examiner's testimony, appellant objected when the State offered all twenty-one autopsy photographs together:Your Honor, we would object to State's Exhibit 36 through 56, and suggest to the Court that they're cumulative in nature and also, that the-first of all that would be my first objection, Judge, that there's cumulative nature of these twenty-one pictures and that I could suggest to the Court that they can do it with less than twenty-one pictures.After the medical examiner testified that all twenty-one photographs were necessary for the jury to understand the testimony, the trial court overruled this objection. Appellant then stated, "And then, our objection would be that the unfair prejudicial effect outweighs the probative value, Your Honor." After an unrecorded bench conference, the trial court stated, "The Court finds that the probative value of State's Exhibit 36 through 56 is not potentially out weighed by the prejudicial effect of these photographs." After appellant stated he had no other objections to the exhibits, the court admitted them into evidence. For an issue to be preserved for appellate review, there must be a timely objection, motion, or request that states the grounds for the ruling desired with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. Tex.R.App.P. 33.1(a)(1). The appellant's argument on appeal must comport with the objection at trial or the issue is not preserved. Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App. 2004); Washington v. State, 152 S.W.3d 209, 213 (Tex.App.-Amarillo 2004, no pet.). The context of appellant's objection showed it was to the prejudicial effect of the photographs as a group. Appellant did not assert to the trial court that the probative value of the depiction of "the bullet-ridden, nude body of the deceased with a large sutured incision on the torso" was substantially outweighed by the danger of unfair prejudice. Accordingly, appellant's objection at trial does not comport with his argument on appeal, and no error is preserved. We overrule appellant's second issue. We affirm the trial court's judgment.