No. 05-01-01862-CR.
Opinion Issued April 10, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F01-73029-SJ. Affirmed.
Before Justices JAMES, BRIDGES, and RICHTER.
Opinion By Justice JAMES
Tristan L. Williams appeals his conviction for capital murder of Khyree Johnson, a child under the age of six years of age. The one-year-old child's death was caused by trauma to the brain by being shaken or struck with a blunt object. Appellant brings two points of error contending (1) the evidence is legally insufficient to support his conviction, and (2) the trial court erred in admitting autopsy photographs. We affirm appellant's conviction.
SUFFICIENCY OF THE EVIDENCE
In his first point of error, appellant contends the evidence is legally insufficient to support his conviction. When reviewing the legal sufficiency of the evidence, this Court must examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In making this determination, the reviewing court considers all the evidence admitted including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001); Holberg v. State, 38 S.W.3d 137, 139 (Tex.Crim.App. 2000). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998); Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998). The standard of review in a circumstantial evidence case is the same as in a direct evidence case. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). Appellant argues the evidence is legally insufficient to prove he caused Khyree Johnson's death in the manner alleged in the indictment because no witness identified "Khyree Johnson" as the same individual who was the subject of the autopsy. Appellant argues, "There was never any testimony in this case which linked the individual upon whom the autopsy was performed with an individual named `Khyree Johnson.'" We disagree. Dr. Jeffrey Barnard testified he was present during the autopsy of "Khyree Johnson" by Dr. Rebecca Hsu. The autopsy report states the subject of the autopsy was "Johnson, Khyree." It appears appellant also argues there is no testimony showing the "Khyree Johnson" who was the subject of the autopsy report is the "Khyree Johnson" alleged as the complainant in the indictment. Appellant then appears to argue the autopsy evidence is the only evidence the child's death was caused in the manner alleged in the indictment, and without a showing the autopsy was performed on the "Khyree Johnson" alleged in the indictment, there is no evidence appellant committed the offense as alleged in the indictment. The indictment alleged appellant caused Khyree Johnson's death "by shaking and flinging the deceased with the defendant's hands . . . and by striking the deceased with and against a couch . . . and an unknown object." Dr. Thomas Abramo, the emergency room physician who treated Khyree Johnson, testified the cause of the child's death was "severe trauma to the head. Severe, significant insult to the head . . . [caused by] [a] blow — a significant force or what we call — significant force to the head and shaking, the shaken-baby syndrome." Dr. Janet Squires testified the child's injuries were caused by "some massive trauma. And the kind of trauma that does this is typically — well, it's shaking, or shaking impact. . . . These are flinging, shaking, shearing forces. They're shearing injuries from shaking and — vigorous shaking and flinging." Appellant testified he shook Khyree to make him be quiet, and he "pitched" Khyree onto the couch. In one of his written statements, appellant admitted shaking Khyree and throwing him on the couch "and he must of hit his haed on a piced of wood frome the kouch he has landed side wasz." [Sic] After reviewing all the evidence in the light most favorable to the verdict, we conclude the evidence is sufficient to show appellant caused Khyree Johnson's death in the manner alleged in the indictment. We overrule appellant's first point of error. AUTOPSY PHOTOGRAPHS
In his second point of error, appellant contends the trial court erred in overruling his objection that the probative value of the autopsy photographs was greatly outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. On appeal, appellant complains only of the admission of State's Exhibits 53 through 57. Ordinarily, autopsy photographs are admissible if they do not show mutilation to the body caused by the autopsy. Hayes v. State, 85 S.W.3d 809, 816 (Tex.Crim.App. 2002); Rojas v. State, 986 S.W.2d 241, 249 (Tex.Crim.App. 1998). Changes rendered by the autopsy process are of minor significance if they make the photograph less gruesome or if the disturbing nature of the photograph is primarily due to the injuries caused by the appellant. Hayes, 85 S.W.3d at 816. Factors considered in determining the admissibility of autopsy photographs include the number of exhibits offered, the gruesomeness of the exhibits, the detail in the exhibits, the size of the photographs, whether the photographs are in color or black and white, whether the photographs are close-ups, and whether the body is depicted clothed or naked. The trial court's decision to admit the photographs will not be overturned unless the trial court abused its discretion. Id. at 815. State's Exhibits 53 through 57 are five of the thirteen autopsy photographs offered by the State and admitted by the trial court. The exhibits are eight-by-ten-inch color photographs and are close-ups of the injuries the child suffered. Because most of the photographs are close-ups of the child's head and back, they do not indicate whether the child is clothed or naked; however, no clothing appears in the photographs. State's Exhibit 53 depicts the child's forehead with the skin peeled back showing the depth and the extent of the bruising to the child's forehead. State's Exhibits 54, 55, and 57 depict the child's brain and show the hemorrhage on the surface of the brain, between the two cerebral hemispheres, and below the dura mater. State's Exhibit 56 depicts the interior of the child's skull after removal of his brain, and the exhibit shows hemorrhage in the area of the child's eyes. The hemorrhaging was caused by trauma, and these photographs, although somewhat gruesome, depict the damage appellant caused the child. The gruesomeness of these pictures was due in large part to the damage appellant inflicted on the child by shaking him, throwing him on the couch, and otherwise causing his head injuries. Dr. Barnard testified that these pictures were "absolutely necessary" for him to explain the nature of the child's injuries. The photographs were probative to show the jury the child actually suffered the internal injuries to the brain testified to by the doctors. We conclude the trial court did not abuse its discretion in determining the probative value of the exhibits was not greatly outweighed by the danger of unfair prejudice. Even if admission of any or all of these exhibits was error, we must disregard the error unless it affected appellant's substantial rights. Tex. R. App. P. 44.2(b). "We will not overturn a case on a non-constitutional error if, after examining the record as a whole, we have a fair assurance that it did not influence the jury, or influenced them [sic] only slightly." Hayes, 85 S.W.3d at 816. Considering the weight of other evidence, including the testimony of Drs. Abramo and Squires, and appellant's testimony and written statements admitting committing the acts alleged in the indictment and causing the child's death, we conclude the admission of State's Exhibits 53 through 57 did not unduly influence the jury in its decision. Accordingly, we conclude the error is harmless. We overrule appellant's second point of error. We affirm the trial court's judgment.